IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.11.2010 Coram THE HONOURABLE Mr.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.15846 of 1998 and W.M.P.No.23926 of 1998 1.Suseela Devi Ammal 2.Rajaji Vijayaraghavan 3.Sunder KUmar .. Petitioners V. 1.The Authorised Officer (Land Reforms) Mayiladuthurai. 2.The Land Tribunal Thanjavur. 3.Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai-4. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for an issuance of a Writ of Certiorari to call for the records from the 3rd Respondent herein pertaining to M.P.No.145 of 1995 and Spl.R.P.No.27 of 1995 and to quash the order passed therein dated 28.8.1998. For Petitioner : Mr.S.V.Jayaraman, Senior Counsel For Mr.N.Maninarayanan For RR 1 : Mrs.Malarvizhi Udayakumar, Special Government Pleader O R D E R M.VENUGOPAL,J. The Petitioners have filed the present Writ Petition praying for an issuance of Writ of Certiorari to call for the records from the 3rd Respondent/Tamil Nadu Land Reforms Special Appellate Tribunal, Chennai relating to M.P.No.145 of 1995 and Spl.R.P.No.27 of 1995 dated 28.08.1998 and to quash the order passed therein. https://hcservices.ecourts.gov.in/hcservices/ 2.The 3rd Respondent/Special Appellate Tribunal, Chennai, while passing orders in M.P.No.145 of 1995 and Spl.R.P.No.27 of 1995 dated 28.08.1998, has, among other things, observed that '... Long after the Land Reforms proceedings started against the first petitioner's holdings these three petitioners sought to transfer a portion of their property to the fourth party. Such a transfer is void under Section 22 unless it is protected by Section 21-A. The Later Section giving an exemption to the normal rule has to be interpreted strictly. It is very clear from the facts of the case (as given in detail by the Land Tribunal in its judgment) this transfer is not covered by the provisions of Section 21-A since it is a matter of fact to be decided on evidence and resultantly, confirmed the order of the 2nd Respondent/Land Tribunal, Thanjavur in L.T.C.M.A.No.3 of 1993 dated 28.11.1994. 3.The case of the Petitioners is that the 1st Respondent/ Authorised Office (Land Reforms), Mayiladuthurai commenced proceedings under Tamil Nadu Land Reforms Act, 58 of 1961 on the basis that she and her sons (Petitioners) on 06.04.1960 held the extent of lands as follows: Ord.Acres Std.Acres ----------- ----------- 1.Suseela 87.00 22.010 2.Rajaji Vijayaraghavan 24.56 20.487 3.Sundera Kumar 23.61 19.675 (Minor son) ---------- ------------ 76.07 62.152 ---------- ------------ 4.According to the Petitioners, the 1st Respondent/Authorised Officer (Land Reforms) has issued a notice as per Section 9(2)(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961 to the 1st Petitioner directing her to furnish the particulars of lands to be specified as surplus in the draft statement and on contest, the 1st Respondent passed an order dated 08.02.1963 directing the 1st Petitioner to furnish particulars of surplus lands to be mentioned as surplus in the draft statement on 21.2.1968 etc. 5.The 1st Petitioner as against the order of the 1st Respondent/ Authorised Officer (Land Reforms) dated 08.02.1963 has filed C.M.A.61 of 1968 before the 2nd Respondent/Land Tribunal, Thanjavur and the same has been dismissed on 19.02.1970. The 2nd Respondent/ Land Tribunal granted liberty to the 1st Petitioner to raise a point that the settlement might be construed as a trust and application of Section 6 must be considered at the time of conduct of an enquiry as per Section 10(5) of the Act. As against the order of the 2nd Respondent the Petitioners projected Civil Revision Petition 536 of 1970 before this Court and also filed C.M.P.No.1051 of 1971 to raise additional grounds. This Court has allowed the C.R.P.No.536 of 70 in part by holding that it is necessary in the interest of justice that the Authorised Officer should consider the recitals in the document https://hcservices.ecourts.gov.in/hcservices/ and apply the provisions of Section 6 separating the interest of the family and to proceed to the ceiling area after the separation of such interest. 6.The 1st Respondent/Authorised Officer by means of his order dated 22.2.1972 in NRI 114 (S)-NNL-A3 dated 22.2.1972 has held that the proceedings under Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961 have been initiated as early as in the year 1960 and as such, as per Section 3 of Act 17 of 70 the proceedings will be continued under the Act 58 of 1961. Moreover, he has held that the Partition Deed in bearing Document No.1709 of 70 will be ignored as per Section 23 of the Act and also has come to the conclusion that the 1st Petitioner is holding 7.48 standard acres surplus and her sons holding 2.57 standard acres as surplus. 7.As against the orders of the 1st Respondent/Authorised Officer (Land Reforms), the Petitioners filed C.M.A.No.23/72 before the 2nd Respondent/Land Tribunal and the same has been dismissed on 03.07.1974. Thereafter, the Petitioners filed C.R.P.No.2684 of 1974 and the same has been allowed holding that the authorities should have given an opportunity to the Petitioners to refer to the Sale Deed dated 16.6.1962 and satisfy whether they could consider it as a genuine one etc. and also held that as the last stands any partition effected after the Act coming into force shall be avoid and shall be ignored by the Authorised Officer and in this regard, negatived the relief of the Petitioners but remit the matter to the 2nd Respondent/ Land Tribunal for fresh consideration. 8.The 2nd Respondent/Land Tribunal by its Judgment in L.T.C.M.A.No.23 of 1972 dated 31.07.1978 has held that the Sale Deed dated 16.6.1962 is a bona fide and genuine transaction supported by valid consideration with an intention to convey title to third parties by the 1st Appellant in respect of the property in question and therefore, Section 22 of the Act has no application. 9.The Petitioners filed Civil Appeal Nos.184-185 of 1979 before the Honourable Supreme Court as against the Civil Revision Petition and the Supreme Court on 10.09.1991 has held thus: ".... However, as is evident the High Court totally overlooked Section 21-A. If the case of the appellants falls squarely within Section 21-A it would reign supreme over any other provisions of the Act, inclusive of Section 23, of Course this would be subject to the partition deed being registered and having been effects within the two crucial dates. For this purpose some Court has to examine it and give a finding thereon. Thus in the facts and circumstances of the case it would serve no purpose to ask the High Court to pronounce whereon and instead, like its other part, while allowing these appeals and setting aside the judgment and order of the High Court in the other part we remit the balance case as well to the Land Tribunal (Subordinate Judge) Mayuram for a fresh consideration in the light of law with the observation made above. So there is a https://hcservices.ecourts.gov.in/hcservices/ remand on both questions and the Land Tribunal is required to enter upon judgment on both aspects of the case....." 10.The plea of the Petitioners is that after remand, the 2nd Respondent/Land Tribunal has gone beyond the remand order and has held that 'the document viz., the date of partition dated 29.04.1970 cannot be termed as a lawful Partition Deed as not between the individuals, who are having pre-existing right but it is only an arrangement by which three persons having properties in their individual names giving away a portion of their land to the old lady Kesala Devi for reasons best known to themselves and though it is being styled as a partition it is not a lawful partition but only a family arrangement to get over the situation and opine that the said document does not fall under Section 21-A of the Act. 11.As against the order of the 2nd Respondent/Land Tribunal in L.T.C.M.A.No.3 of 1993 dated 28.11.1994, the Petitioners filed Spl.R.P.No.27 of 1995 before the 3rd Respondent/Special Appellate Tribunal and the same has been dismissed. 12.According to the Learned Senior Counsel appearing for the Petitioners, the order of the 3rd Respondent/Appellate Tribunal dated 28.08.1998 in confirming the order of the 2nd Respondent in L.T.C.M.A.No.3 of 1993 dated 28.11.1994 is contrary to law and that the 3rd Respondent/Appellate Tribunal has wrongfully held that the transfer is not covered by Section 21-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58 of 1961 since it is a matter of fact to be decided by an evidence and further, the 3rd Respondent/ Appellate Tribunal has gone behind the order of remand by Honourable Supreme Court in coming to the conclusion that the present case does not fall under Section 21-A of the Act. 13.Expatiating his arguments, the Learned Senior Counsel for the Petitioners contends that the 3rd Respondent/Appellate Tribunal erred in holding that a Hindu widow's right to maintenance will not indicate a right to a share in the family property as a coparcener and therefore, it is not correct in viewing that such a transfer is void as per Section 22 of the Act and further, it is not covered by Section 21-A of the Act. 14.The Learned Senior Counsel appearing for the Petitioners strenuously contends that the view that the main criteria for persons to enter into a Partition Deed is that there should be a pre-existing right in a common property is not a correct one in the eye of law and in any event, Kosala Devi has got a right to have a maintenance and as such has an existing right and indeed, nothing prevented a Hindu coparcener to to throw the property in the common stock and partition the property and the earlier settlement is between Susila Devi, Rajaji Vijayaraghavan and Sunder Kumar will only enable them to enjoy the property as co-owner and therefore, it is open to in the interest of parties to effect a partition and such a Partition Deed cannot be termed as an unlawful one. 15.Proceeding further, the Learned Senior Counsel for the Petitioners submits that the Partition Deed dated 29.04.1970 is only https://hcservices.ecourts.gov.in/hcservices/ an arrangement and not a partition is an incorrect one because of the fact that a Family Arrangement is also a kind of partition and once the said document is registered within the crucial date, then, it comes into provisions of Section 21-A of the Act. 16.In response, the Learned Special Government Pleader appearing for the 1st Respondent submits that the 1st Petitioner and her two minor sons held ordinary acres 76.07 equivalent to 62.152 standard acres more than the ceiling area as on 06.04.1960 and an order as per Section 9(2)(b) of the Tamil Nadu Land Reforms Act 1961 has been passed on 08.02.1960 holding that the family of the land owner has been in possession of 76.07 ordinary acres equivalent to 62.152 standard acres of lands as on 06.04.1960 and declared 31.152 standard acres as a surplus lands. 17.It is the stand of the 1st Respondent that the land owner and her two sons filed an appeal before the Land Tribunal (Sub Judge), Mayiladuthurai contending that minor son do not form part of the family and that a reservation of 25% of the net income of the family properties has to be made for charities and the Land Tribunal, Mayiladuthurai in its Judgment in C.M.A.No.61 of 1968 disagreed with the first contention and abstained from giving a finding in regard to the second contention that the Appellants can agitate the matter before the Authorised Officer, Mayiladuthurai as per Section 10(5) of the Act. 18.The Learned Special Government Pleader for the 1st Respondent submits that the Petitioners filed C.R.P.No.536 of 1970 raising a contention that the 1st Petitioner is entitled to sridhana of 10.00 standard acres and this Court in the order on 05.02.1971 held that recitals in the document creating the reservation of 25% of the net income from the estate for the charities should be considered etc. But the objections to treat the minor sons as separate unit has been negatived. 19.Added further, it is the contention of the Learned Special Government Pleader for the 1st Respondent that pursuant to the order dated 05.02.1971 in C.R.P.No.536 of 1970, a revised order as per Section 9(2)(b) of the Act has been issued on 22.02.1972 determining the surplus of 10.05 standard acres and as against the said order, the Writ Petitioner and her sons files an Appeal C.M.A.No.23 of 1972 before the Land Tribunal [Subordinate Judge], Mayiladuthurai and the same has been dismissed on 03.07.1974 with costs. 20.The Learned Special Government Pleader for the 1st Respondent contends that this Court in C.R.P.No.2864 of 1974 by its order dated 06.04.1978 has held that merely because the Sale Deed dated 16.06.1962 has not been produced before the Authorised Officer, the Appellate Authority ought to have given an opportunity to the Petitioners to refer the Sale Deed etc. and that there is a material irregularity in the order which has to be corrected and in regard to the Partition Deed dated 29.04.1970 it upheld the decision of the Authorised Officer in treating the said document as void and allowed the matter in part and remit the subject matter to the Land Tribunal [Subordinate Judge], Mayiladuthurai for a fresh consideration. https://hcservices.ecourts.gov.in/hcservices/ 21.The further plea of the 1st Respondent is that the Land Tribunal in L.T.C.M.A.No.23 of 1972 by its order dated 31.07.1978 has allowed the Appeal and set aside the order of the Authorised Officer treating the Sale Deed dated 10.06.1962 as void and remitted back to the Authorised Officer for fresh disposal and the Petitioners filed a Review Petition C.M.P.No.9111 to 9112 of 1978 before this Court as against the order passed in C.R.P.No.2684 of 1974 dated 06.04.1978 contending that the Partition Deed dated 29.04.1970 has to be treated as valid but the Review Petitions have been dismissed on 01.12.1978. 22.Continuing further, the State of Tamil Nadu filed S.L.P.No.89 of 1979 before the Honourable Supreme Court of India feeling aggrieved against the order of this Court in C.R.P.No.2684 of 1974 dated 06.04.1978 and that the Honourable Supreme Court in C.A.No.184- 185 of 1979 dated 10.09.1991 has allowed the Appeal on 06.10.1980 by setting aside the orders of High Court, Chennai and remanding the matter to the Land Tribunal, Thanjavur with a direction for fresh consideration in the light of observations made. 23.The Learned Special Government Pleader for the 1st Respondent submits that in L.T.C.M.A.No.3 of 1993 on completion of remand enquiry, the Land Tribunal/District Revenue Officer, Thanjavur passed orders inter alia held that the document itself does not filed under Section 21-A of the Act and therefore, the Appellants (Petitioners) are not entitled to the benefit of Section 21-A of the Act insofar as it relates to the Partition Deed dated 29.04.1970. 24.The Learned Special Government Pleader appearing for the 1st Respondent brings it to the notice of this Court that the Petitioners filed Spl.R.P.No.27 of 1995 before the 3rd Respondent/Appellate Tribunal and the same has been dismissed on 28.08.1998 and the Petitioners have filed the present Writ Petition. 25.The contention of the 1st Respondent is that any partition which has taken place or registered within the period from 15.02.1970 and 02.10.1970 alone has to be considered under the Amended Act 17 of 1970 but this has no application to the Principal Act and the grounds raised before this Court related to the Amended Act 17 of 1970 and as such, the order of the 3rd Respondent/Appellate Tribunal in Spl.R.P.No.27 of 1995 dated 28.08.1998 is in conformity with the law and therefore, prays for dismissal of the Writ Petition. 26.The Learned Senior Counsel appearing for the Petitioners contends that any Hindu Widow is entitled for maintenance and that the Petitioners have executed the Partition Deed dated 29.04.1970 are liable to provide maintenance for step mother/step grandmother and as per Section 14(1) of the Hindu Succession Act, the right of a Hindu Widow for maintenance is an anterior right and as such the Partition Deed is legally valid. 27.Countering the submission of the Learned Senior Counsel for the Petitioners, the Learned Special Government for the 1st Respondent submits that the right to maintenance in respect to a mother or wife is not to be equated with a right to claim partition as a equal https://hcservices.ecourts.gov.in/hcservices/ coparcener and in any event, the proceedings in the present case have been initiated under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58 of 1961 and continued as per Amendment Act 17 of 1970 and as such, Section 21-A of the Act will not come into operative play. 28.At this stage, this Court recalls the decision of the Honourable Supreme Court in M.Ramakrishnan V. State of Madras (1980- I-MLJ-42) wherein it is held as follows: "The expression 'stridhana land' used in section 5 (4)(a) has been given a restricted meaning by section 3 (42) of the Act which defines it as any land held on the date of the commencement of the Act by any female member of a family in her own name. From a reading of the definition of 'stridhana land' in section 3(42) and the provisions of section 5(4) it is clear that the State Legislature intended to extend the concession available under Section 5(4) only to the stridhana property held by a female on the date of the commencement of the Act and not to property acquired by her thereafter." 29.Also, this Court aptly points out the decision of this Court in Deivasigamani Gounder V. The Authorised Officer (Land Reforms), Erode (1978-II-MLJ-450) wherein it is held hereunder: "Once it is found that proceedings for the purpose of fixing the ceiling area for the first time, have commenced under the provisions of the Tamil Nadu Act LVIII of 1961 as it stands amended by the Tamil Nadu Act XVII of 1970, "the date of commencement of the Act" and the "notified date" must have reference only to those dates as introduced by the Tamil Nadu Act XVII of 1970. As per the amendments introduced by the said Act, "the date of commencement of this Act", means the 15th day of February. 1970 and "the notified date" means the date specified by the Government in a notification which shall be a date after the date of the publication of this Act and such a notified date is stated to be 2nd October, 1970." 30.Further, in the decision V.S.Valliappa Chettiar (deceased) and others V. The State of Tamil Nadu represnted by the Special Deputy Tahsildar (L.R.) No.II, Ramanathapuram at Madurai (1979-I- MLJ-433), this Court has held as follows: "A duty is cast on the Authorised Officer under Section 22 to find out whether the concerned transfers were such as would defeat any of the provisions of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act. It is a mandatory provision and the Authorised Officer has to follow the procedure laid down in section 22, strictly. An enquiry has to be held by the Authorised Officer Under the section to find out whether the transfers were entered only with a https://hcservices.ecourts.gov.in/hcservices/ view to defeat the provisions of the Act without bona fide intention to transfer title under the documents of transfer. That procedure has not been followed in this case. There is nothing on record to show that he has even dropped the proceedings under Section 22. Nothing is mentioned about the enquiry under section 22. The Authorised Officer had not come to the conclusion that the transfers had the effect of defeating the provisions of the Act. On that view, the order of the Authorised Officer is not sustainable. The proper course to be adopted under such circumstances is to remit the matter to the Authorised Officer for an enquiry afresh." 31.In the decision of the Honourable Supreme Court in B.K.V.Radhamani Ammal V. The Authorised Officer, Land Reforms Coimbatore (AIR 1985 Supreme Court 569) it is laid down as follows: "According to Act No.17 of 1970 the date of commencement of the Principal Act was to be deemed to be February 15, 1970 and the notified date was to be October 2, 1970. After the passing of that Act, the question as to whether the holding of the family was in excess of the ceiling area had to be decided in reference to the state of affairs as they existed on that notified date, that is to say, on October 2, 1970. B's daughter was married in May 1963, and therefore, the family of which she was at one time a member consisted solely of the widow on the notified date. On this consideration, the land which was settled upon the daughter could not possibly be clubbed with the land which was settled upon the widow. AIR 1978 NOC 20 (Mad) Reversed." 32.In the decision N.Rajammal (Died) and another V. P.Maragathammal & 28 others (1998-I-MLJ-184 at page 194), this Court has held that 'Ex.A-1 partition is not a void document altogether. It is void only to the extent that it exceeds the ceiling limits of late Appasami Naidu. The transaction under Ex.A.1, though the nomenclature is said as a partition, it is really a gift by Appasami Naidu in favour of his daughters and they obtained absolute title over the properties allotted to them.' 33.In the decision of the Honourable Supreme Court in A.G.Varadarajulu and another V. State of Tamil Nadu and others (1998- II-MLJ-133 at page 134) it is held as follows: "The word 'held' in Sec.3(42) is used in the sense that the female must be in possession of the land as owner or with some element of title on 15.2.1970 the date of commencement of the Act. In the Court's opinion, it is not sufficient that as on 15.2.1970,t eh second appellant had a right to maintenance under the customary Hindu Law against this property in satisfaction of which this extent https://hcservices.ecourts.gov.in/hcservices/ of land was allotted to her on 24.9.1970. A right to claim maintenance against certain property of the joint family cannot be equated with 'holding' the land as on 15.2.1970. Sec.5(3) of the Act provides for notional computation of the share of persons who basically hold a share in joint family property under Hindu Law. But such a provision dealing with mode of computation is attracted only to persons who, at the date of commencement of the Madras Act 'hold' an undivided share in the property of the Hindu joint family. It must, therefore, be held that Sec.5(3) read with the Explanation permits notional computation only in respect of those who 'hold' an undivided interest in the joint family property at the date of commencement of the Act. The second appellant had no basic right to a share in the joint family property inhering in her on 15.2.1970 and she cannot, therefor, be said to be 'holding stridhana land' as on the date of commencement of the Act i.e. 15.2.1970 within Sec.3(42) of the Act. Therefore, the fact that she had, as on 15.2.1970, a right to maintenance against this property which later crystallised into the allotment of this property in her favour on 24.9.1970 is not sufficient. Neither under the customary Hindu Law nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions and Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held by her husband nor to a mother in the joint family property allotted to her son in a partition." 34.In the decision of the Honourable Supreme Court in Arul Nadar V. Authorised Officer, Land Reforms (1998 (II) CTC 714 at page 717) the Honourable Supreme Court has observed as follows: "... Section 21-A was made applicable to a proceeding which had been initiated under the parent Act and was pending when the said Section 21-A was brought on to the statute-Book. In view of the aforesaid two decisions and on examining the provisions of the Tamil Nadu Act 17 of 1970, more particularly Section 21-A, we have no hesitation to come to the conclusion that the