1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT SB CIVIL WRIT PETITION NO.3116/1995 Kastoor Chand & Ors. V/s The Board of Revenue & Ors. Date of Order : : September 22, 2006 PRESENT HON'BLE MR. JUSTICE P.S. ASOPA Mr.Kamlakar Sharma, for the petitioner. Mr.H.V. Nandwana, for the State. By the instant writ petition, the petitioner has challenged the order dated 5.1.1994 passed by the Board of Revenue as well as order dated 31.12.1991 passed by Additional Collector, Kota and has further prayed that ceiling proceedings taken against Gopi Lal may be ordered to be dropped. 2. The facts, in brief, of the case are that ceiling proceedings under Old Ceiling Law were initiated against Gopi Lal and authorised officer SDO, Kota vide its judgment dated 30.12.1971 held that there was no surplus land in excess of the ceiling area and considering the fact of unequal partition amongst 7 co-parceners vide decree dated 7.8.1967 and further considering the fact that Dhanna Lal S/o Gopi Lal died 3 or 4 years back, 2 therefore, ceiling proceedings were ordered to be dropped. It has also come on record in the partition decree (Annexure-6) dated 7.8.1967 that on that date Dhanna Lal was alive, but on the date of passing of the said judgment dated 30.12.1971, he was not alive. On coming into force the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter to be referred as “the Act of 1973”), the ceiling proceedings were again initiated and vide order dated 26.4.1975, the SDO, Kota dropped the same on account of division of holdings between five share holders as per decree of the partition of the SDO dated 7.8.1967 and each share holder is having less than 30 standard acres of land. On 9.6.1980, the State Government re-opened the ceiling proceedings under the Old Ceiling Law culminated vide order dated 30.12.1971, being contrary to the provisions of Old Ceiling Law. The Additional Collector vide its order dated 4.3.1983 decided that Gopi Lal was having 117 standard acres of land in excess of the prescribed ceiling area and accordingly ordered for acquisition of the aforesaid land. The said order was challenged before the Board of Revenue and Board of Revenue vide its order dated 5.11.1984 set aside the order of the Additional Collector dated 4.3.1983 and directed that the matter be decided afresh. The Additional Collector, Kota, thereafter decided the case on 29.8.1989 wherein it was held that in all Gopi Lal is having 319 Bighas 17 Biswas of land which was ancestral land, out of 3 which he ordered that land measuring 17 Bighas 14 Biswas had come in the catchment area of the canal and therefore, deserves to be reduced. Finally, 302 Bighas 3 Biswas of land was taken into consideration. He further held that the land was ancestral and had been partitioned on 1.4.1966 between Gopi Lal and Smt. Kesar Devi widow of Gopi Lal, pre- deceased son Dhanna Lal as well as his grand sons Kastoor Chand, Devi Shanker, Badrilal, Ramkaran and Sahib Lal. He further held that total holding should be divided in two parts, one for Gopi Lal and another for pre-deceased son Dhanna Lal. He, therefore, held that so far as ancestral land belonging to the heirs of Dhanna Lal is concerned, their holding is less than the prescribed ceiling area, but Gopi Lal was holding 36.52 standard acre whereas he was entitled only for 30 standard acre, therefore, 6.52 standard acre land is in excess. The petitioner has further stated that during the course of hearing before the Additional Collector, Kota, Gopi Lal had expired, therefore, proceedings were continued by his daughter Dhanni Bai and heirs of Dhanna Lal. Against the order dated 29.8.1989 passed by the Additional Collector, an appeal was filed before the Board of Revenue and the Board of Revenue accepted the same vide order dated 29.7.1991 and set aside the order dated 29.8.1989 and remanded the matter to Additional Collector, Kota by pointing out the error of not calculating the standard acre as per classification of soil and otherwise also, an 4 enquiry regarding nature of the land whether the same is ancestral or not, is also required to be made and further report of the Tehsildar be taken into consideration. On remand, the Additional Collector, Kota passed an order on 31.12.1991 and held that the issue whether the case was to be reopened or not cannot be considered at this stage as the matter was remanded by the Board of Revenue with certain directions and as per direction, the calculation was made and it was held that total land is 73.03 standard acre, out of which, Gopi Lal had half share and half share is of widow of pre- deceased son Dhanna Lal and their sons. The land of Gopi Lal is 36.52 acres and he is entitled to retain 30 standard acre of land, therefore, 6.52 standard acre of land is surplus whereas the land held by widow of Dhanna Lal and her minor sons is less than 30 standard acre. Against the said order dated 31.12.1991, again an appeal was filed before the Board of Revenue and the Board of Revenue vide order dated 5.1.1994 has held that the issue whether the ceiling proceedings were dealt by the authorised officer or not, cannot be raised at this stage and as regard the land of Gopi Lal and his son Dhanna Lal of 73.03 standard acre was in joint khata, out of which share of Gopi Lal is 36.52 standard acre and 6.52 standard acre of land has been rightly declared surplus. 3. The State Government has filed reply and raised the objection that Dhanni Bai D/o Gopi Lal was not impleaded as party and further 5 supported the judgment of Board of Revenue. 4. The submission of Mr.K.K. Sharma, counsel for the petitioner is that the land in question was ancestral land, which was being managed by Gopi Lal as `Karta' of Hindu Joint Family. Gopi Lal, Dhanna Lal and his sons were coparceners of the said property since their birth and on appointed date i.e. 1.4.1966, the position was same and further the said coparceners have further exercised their right of severance and partition of the same by metes and bounds, therefore, they filed a suit for partition in the year 1966 and demanded their equal share in property, which was ultimately partitioned on 7.8.1967. The Revenue Authorities were under an obligation to decide the ceiling proceedings in accordance with the partition decree, which cannot said to be a transfer and is simple a separation of the joint right of coparceners' property and their individual right. Further submission of Mr.Sharma is that even in case it is assumed that decree of partition is not to be recognised on account of passing of the same after 1.4.1966 of unequal share then also as per Section 5 (17) and Rule 17 (4) of the Rajasthan Tenancy (Fixation of Ceiling on Land)(Govt.) Rules, 1963 (hereinafter to be referred as “the Rules of 1963”), notional share of each coparceners / co-sharers is to be determined. But, here in the instant case, notional shares have not been separately determined and in case they are separately determined then also as per Section 30 (B) of the 6 Rajasthan Tenancy Act, 1955 (hereinafter to be referred as “The Act of 1955”) Gopi Lal was not having excess land on 1.4.1966. 5. The submission of counsel for the State is that there was in all 73.03 standard acres of land, out of which Gopi Lal was having half share i.e. 36.53 standard acres and whereas other half share was of the family of pre- deceased son Dhanna Lal and his widow and other family members. The Government Advocate also submitted that partition decree cannot be recognised for the simple fact that unequal partition have been made and that too, after 1.4.1966 i.e. the appointed date, to defeat the ceiling provisions. The Government Advocate has also submitted that co-parcener has no right to seek partition during life time of his father and grand father. 6. I have gone through the record of the writ petition and further considered rival submissions of counsel for the parties. 7. It would be worthwhile to quote the relevant provisions. Section 5 (17) & 30B of the Act of 1955 and Rule 17 of the Rules of 1963 which are as follows:- The Rajasthan Tenancy Act, 1955 Sec. 5(17). “Holding” shall mean a parcel of land, held under one lease, engagement or grant, or, in the absence of such lease, engagement or grant, under one tenure, and shall include, in the case of an Ijardar or Thekadar, the ijara or theka area : Provided that, for the purposes of 7 Chapter III-B, all parcels of lad held anywhere throughout the State by a person under one or more than one lease engagement, grant or tenure, and whether cultivated personally or let or sub-let by him, shall be deemed to be his holding and, where any such land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place. Sec. 30B. - Definitions. For the purpose of this Chapter - (a) `family' shall mean a family consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent, and (b) `person' in the case of an individual, shall include the family of such individual. The Rajasthan Tenancy (Fixation of Ceiling on Land) (Govt.) Rules, 1963 Rule 17. Lands held by undivided family, society. - (1) For the purpose of determining the ceiling area, all the lands held individually, by any member of a family or jointly by some or all of the members of a family, shall be deemed to be held by the family. (2) In calculating the extent of land held by a family or by an individual person the share of the member of the family or of the individual person in 8 the land held by an Hindu undivided family, shall be taken into account. (3) In calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm society or association of individuals (whether incorporated or not) or by a company shall be taken into account. (4) The share of a member of a family or of an individual person in the land held an Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individuals (whether incorporated or not) by a company shall be deemed to be the extent of land which in case such share is held on the appointed date would have been allotted to such a member, person or family had such land been partitioned or divided, as the case may be, on such date; or which in case such share is acquired in any manner whatsoever after the appointed date, would be alloted to such member, person or family if a partition or division were to take place on the date of determination of ceiling area. (emphasis supplied) 8. The case was remanded twice by the Board of Revenue to the Ceiling Authorities for re-determination of the ceiling area. Once on 29.7.1991 and then again on 5.1.1994. The last remand order passed on 5.1.1994 was limited on the issue of classification of the land and 9 conversion of Bigha into standard acre as well as on the issue to make enquiry whether the land is ancestral. But the Additional Collector, Kota vide its judgment dated 31.12.1991, while holding the land ancestral further held that late Gopi Lal and late Dhanna Lal are having ½ share each, out of ½ share of Dhanna Lal his widow and sons are entitled for equal share 6.09 standard acre of land each. The land of 3 minor sons was clubbed with widow of Dhanna Lal namely Kesar Bai and land of two major sons was not clubbed, without any enquiry on dependency issue. Ultimately, it was held that minor sons and their mother has 24.36 standard acre land, which is less than 30 standard acres and major sons namely Kastoor Chand and Devi Shanker are also having the land less than ceiling area. It has been further held that Gopi Lal now remained alone in his family on notified date and was having 36.52 standard acres land. Since out of the ancestral land, Dhanna Lal has been separated, grand sons of Gopi Lal are not entitled for any share from the land of Gopi Lal and they have been given further share from the land of their father late Dhanna Lal along with their widow mother, therefore, they are not the members of the family of Gopi Lal. The relevant portion of the judgment of second remand order dated 5.1.1994 of the Board of Revenue and judgment dated 31.12.1991 of the Additional Collector, Kota are as follows:- Relevant portion of judgment dated 31.12.1991 of 10 Additional Collector, Kota “अूाथȸ खातेदार के पास अिधसूिचत िदनांक को िकः म जमीन के अनुसार कुल 73.03 ः टेण् डडर् एकड भूिम बनती है िजसमे गोपीलाल का िहः सा 1/2 एवं शेष 1/2 मे उसके पुऽ धÛ नालाल कȧ बेवा केसरबाई एवं उसके पुऽɉ का अलग-अलग िहः सा है जो 6.09 ः टेण् डडर् एकड भूिम बनती है । चूिक केसरबाई के तीन पुऽ बिीलाल, रामकरण, साहबलाल नाबािलग है इसिलये उनके िहः से कȧ कुल 18.27 ः टे0 एकड भूिम व केसरबाई के िहः से कȧ भूिम6.09 इस ूकार कुल 24.36 ः टेण् डडर् एकड भूिम बनती है । कः तूर चंद व देवीशंकर दोनɉ बािलग पुऽ है िजनके िहः से कȧ भूिम 6.09, 6.09 ः टेण् डडर् एकड होती है । इस ूकार नाबािलग पुऽɉ कȧ भूिम उसकȧ माता के साथ È लब िकये जाने पर कुल 24.36 ः टेण् डडर् एकड होती है जो सीिलंग सीमा से कम है । बािलग पुऽ कः तूरचÛ द एवं देवीशंकर के पास भी भूिम सीिलंग सीमा से कम बनती है । अूाथȸ गोपीलाल के धारण मɅ उसके िहः से कȧ भूिम 36.52 ः टेण् डडर् एकड बनती है एवं अिधसूिचत िदनांक को उसके पिरवार मɅ अव माऽ वह अकेला एक सदः य रह जाता है, È यɉिक पैतृक भूिम मɅ उसके पुऽ धÛ नालाल कȧ भूिम को अलग िकया जा चुका है एवं जहां तक उसके पोऽɉ कȧ भूिम िदये जाने को ूँ न है, उÛ हɅ भूिम उनके िपता धÛ नालाल कȧ बेवा केसरबाई के िहः से मे आई भूिम मɅ िदया जा चुका है और अब वे अूाथȸ गोपीलाल के पिरवार के सदः य भी नहीं रहे है । इस ूकार अूाथȸ ः वंय गोपीलाल के धारण मɅ 36.52 ः टे0 11 एकड भूिम है एवं वह ः वयं अकेला सदः य होने के कारण अिधकतम एक पिरवार हेतु िनधार्िरत सीमा 30 ः टेण् डडर् एकड भूिम रखने का अिधकारी है । इस ूकार उसके पास सीिलंग सीमा से 6.52 ः टेण् डडर् एकड भूिम अिधक होना पाया जाता है जो कािबल अिधमहण होने से अिधमहण िकये जो के आदेश िदये जाते है । “ (emphasis supplied) Relevant portion of judgment dated 5.1.1994 of Board of Revenue “गोपी लाल एवं उसके पुऽ धÛ ना लाल के सयुंÈ त खाते मɅ 73.03 ः टे0 एकड भूिम बनती है और उसमɅ गोपी लाल का आधा िहः सा है जो 36.52 ः टे0 एकड के बराबर आता है । अपीलाण् ट गोपी लाल का पुऽ धÛ ना लाल है िजसका िक गोपी लाल के पूवर् ही देहाÛ त हो गया उस िहः से को कोई िववाद नहीं है । गोपी लाल के पिरवार मɅ गोपी लाल केवल एक ही सदः य था और वह 30 ः टे0 एकड भूिम तक ही धािरत कर सकता था ऐसी अवः था मɅ उसके पास सीिलंग सीमा से 6.52 ः टे0 एकड भूिम अिधमहण करने योÊ य थी िजसके िलये अितिरÈ त िजलाधीश ने आदेश देने मɅ िनयमानुसार कायर्वाही कȧ है और उसके आदेश मɅ इस अपील के माÚ यम से हः त¢ेप का कोई समुिचत कारण अथवा आवँ यकता नहीं है । “ (emphasis supplied) 12 9. The Division Bench of this Court in case of Amb Singh & anr. V/s Sub-divisional Officer, Bhinmal & Ors. - 1997 RRD 357 has held that partition of coparceners property is not a transfer where partition is to be worked out on the basis of equal share in the property. The relevant para 9, 10, 20 & 21 of the said judgment are as follows:- “9. The first question which requires consideration in the present case is : whether the partition of the co- parcenary property effected between the appellants on 21.1.68, is a `transfer' and can be recognised, considered and given effect-to for determining the ceiling area applicable to the appellants? 10. `Partition' is a division of the property between co-parceners / co- tenants resulting in individual ownership / tenancy of interest of each co-parceners / co-tenants; while `transfer' is an act of a party by which the title of the property is conveyed from one person to another. `Partition' under the Hindu Law, puts an end to the unity of the title, ownership and possession of the property between the co-parceners. In the partition there is a severence of joint status and of unity of possession between the co-owners / co- tenants. Partition neither creates any new title in a co-owner / co- tenant in the property nor is there any fresh acquisition of the property. It only enables the parties to know which particular property or portion thereof is their individual exclusive- share in the property. By partition 13 the subsisting joint title of the co- owner / co-tenant in the joint property transforms into their separate title in respect of the property which came to their share. In a transfer, the transferee acquires the right and title in the property which did not vest in him earlier. Thus, `partition' of the joint property cannot be treated as a `transfer of the property' between individual co-parceners or co-tenants. Partition of co-parcenary property, therefore, cannot be regarded as a `transfer of the property' because the co-parceners have an antecedent right in the entire co-parcenary property. 20. The next question which requires consideration is: whether the restriction under Section 30-DD relates only to the recognition to the transfers and not to the partition and the partition effected between the parties at any time can be considered for the purpose of determining the ceiling area applicable to all the persons or the family ? Section 30-DD does not deal with the partition. `Partition' for the purpose of determination of the ceiling area is covered only under Section 30-D and the recognition given under the ceiling law for the purpose of determination of ceiling area is only to those partitions which have been effected on or prior to the notified date, i.e., 1.4.1966. All other transfers, as per Section 30-D, except by way of partition or in favour of a person who was a landless person before the said date and continues to 14 be so till the date of transfer, are deemed to be in the transfers calculating to defeat the provisions of Chapter III-B and cannot be recognised and taken into consideration. Section 30-DD recognises special type of transfers limiting to thirty standard acres, made by a person upto 31st day of December, 1969; and (ii) the transfer to the extent of thirty standard acres made on or before the 1st day of June, 1970 of the land comprised in groves or farms of any nature referred to in Clauses (a), (b), and (e) of sub- section (1) of Section 30-J, made in favour of agriculturists domiciled in Rajasthan or in favour of his brother or son who have attained the age of majority on this day and are intending to take to the profession of agriculture and capable of cultivating the land personally. This Section has no application so far as the recognition of the partition for the purpose of determination of ceiling area is concerned. Partition is exclusively covered by Section 30-D of the Act. 21. The last question which requires consideration is : whether proviso to Sub-rule (5) of rule 17 applies to the present case ? It is not in dispute that as per the findings recorded by the learned Single Judge as well as by the tree Revenue Authorities, the partition of the holdings between the co-tenants (appellants) had not taken place upto the appointed date and it took place on 21.1.68. On the appointed date, the land was entered in the name of 15 both the appellants as the co- tenants. The land was ancestral and the appellants inherited the same from their father. As per the Hindu Law, being co-parceners, the appellants have equal share in the property. There is no doubt that at the time of partition the parties can agree to take unequal share; but since no partition was effected upto the notified date and on 1.4.66 the appellants were shown as co-tenants, they were, therefore, deemed to have equal share in the holding for which they were entitled being the co- parceners as per the Hindu Law. The learned Single Judge was, therefore, justified in applying the proviso to Section 5(17) of the Act and holding that both the co-tenants (appellants) are entitled for equal share in the land.” (emphasis supplied) 10. In view of above, first submission of Mr.Kamlakar Sharma of non- consideration of partitioned decree by the Ceiling Authority is liable to be rejected on account of fact that the same was passed after the notified date and the shares were unequally divided (Annexure-6). 11. Now the question arises whether in case of ancestral land, a co- parcener is entitled for determination of deemed share as per Section 5 (17) of the Act of 1955 and Rule 17 (4) of the Rules of 1963? In the instant case, grand father as well as father were alive when the right of severance from ancestral land was exercised by grand sons. 16 12. The submission of Mr.Kamlakar Sharma is also that grand sons were entitled for their share by way of partition, otherwise also determination of their share in the ceiling proceedings. The authorities have ignored the provisions of Section 5 (17) of the Act of 1955 and Rule 17 (4) of the Rules of 1963, which are relevant for the purpose of determination of share of each member of the family and thereafter, clubbing the same after deciding the issue of dependency as per Section 30B of the Act of 1955. 13. There was a difference of opinion amongst Bombay High Court and other High Courts on the issue of seeking partition of ancestral joint property by the grand son / son during life time of grand father / father. The Bombay High Court in case of Apaji Narhar Kulkarni V/s R. Ravji Kulkarni – (1892) ILR 16 Bom 29 (Full Bench) by majority has held that son or a grand son cannot seek partition during life time of grand father/ father. The view taken in the said judgment has drawn the attention of learned Judges of other High Courts and the same was considered extensively along with other judgments of the parallel High Court like Madras, Allahabad etc. and ultimately, it was held by many High Courts that the said judgment is no longer good law in view of AIR 1968 SC 1018 (Puttrangamma and Ors. V/s M.S. Ranganna & Ors. wherein it was held that a member of joint family can bring about his separation in status by a definite unequivocal and unilateral declaration of his intention to 17 separate from the family and enjoy his share in severalty. Subsequently