CIVIL WRIT JURISDICTION CASE No.8759 OF 2004 (Against the order dated15.11.2003 passed in Revision Case No. 35 of 2001 by the Addl. Member, Board of Revenue, Bihar, Patna) 1. Mr. Praveer Kumar Sinha, S/o Late Awadh Naresh Kumar Narain Sinha, r/o Mohalla Brahmsthan lane, Sheikhpura, Patna, At Present residing at quarter No. 481/B.B.R E.L. Tonnshir, P.O. Dhaligaon, District-Chirang, Assam-783385 1(a) Naveen kumar Sinha, S/o Late Awadh Naresh Kumar Narain Sinha, resident of 204, Green (Meandow Lokham diller complex), Kardivali, East Mumbai-400101 2. Suresh Chandra Sinha 3. Purnendu Chandra Sinha Petitioner Nos. 2 & 3; are sons of Late Kunti Devi and late Vishambhar Nath, residents of Mohalla – Punaichak, Patna, P.O. G.P.O. P.S. Shastrinagar, District- Patna …………………… Petitioners/Appellants -VERSUS- 1.THE STATE OF BIHAR 2. The Additional Member, Board of Revenus, Bihar, Patna. 3. The Collector, Nawadah, District-Nawadah 4. The Additional Collector, Nawadah, District-Nawadah. 5. The Anchal Adhikari, Akbarpur Block, Akbarpur, District- Nawadah. 6. Ram Kishore Sharma, son of Late Brahmdeo Narain, Resident of mohalla- East Lohanipur, Patna, P.S. Kadamkuan, District- Patna. 7. Uma Kant Sharan Sinha 8.Ranjan Kumar Sinha Both sons of Late Kunti Devi and Late Vishambhar Nath and resident of Mohalla- Puinaihak, Patna, P.O.-G.P.O., P.S. Shastrinagar, District- Patna. 9. Mrs. Reeta Kumari, D/o Late Awadh Naresh kumar Narain Sinha, W/o Dilip Kumar, R/o B-29, Shrikrishnapuri, S.K. Puri, Patna 10. Mrs. Mamta Sinha, D/o D/o Late Awadh Naresh kumar Narain Sinha, W/o Dilip Kumar, R/o B-29, Shrikrishnapuri, S.K. Puri, Patna …………………..Performa/Respondents. ----------- For The Petitioner : Mr. Keshav Srivastava Sr. Advocate Mr. BHUBNESHWAR PRASAD, Advocate 2 For The Respondent : Kumari Amrita, Advocate SC(C)I Mr. Mirtunjay Kumar, Advocate AC to SC I (C) P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh & Hemant Kumar Srivastava, JJ. This writ petition is directed against the order dated 15.11.2003 passed in Revision Case No. 35 of 2001 by the Board of Revenue, Bihar whereby the revision application preferred by the original writ petitioner, Awadh Naresh Kumar Narayan Sinha who is now dead and has been substituted by his heirs, was dismissed. 2. From the records, it transpires that Land Ceiling Case No. 637 of 1973-74 was initiated against the original writ petitioner for determining ceiling area admissible to him as per provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the “Act”). The writ petitioner filed objection to the Draft Publication made under Section 10(2) of the Act on various grounds 3 including a ground that he had three sisters and one of them, Bhawani Devi filed Title Partition Suit No. 23 of 1973 in the court of Sub Judge, Gaya claiming share in the lands which were shown to be that of the original writ petitioner in the Draft Publication. That suit ended in a compromise decree dated 02.01.1976. As per compromise, the original writ petitioner got 30.36 & half acres of land, Bhawani Devi got 8.90 and half acres, Kunti Devi got 7.99 acres and the third sister, Tara Devi got 6.65 acres. It is not in dispute that the three sisters also lodged their claim over part of the land shown to be of original writ petitioner but their claims were rejected by the Collector under the Act as well as by the appellate authority. The order of the appellate authority i.e. Collector, Nawada dated 12.10.2000/30.11.2000 was challenged by the original writ petitioner before the Board of Revenue, Bihar through Revision No. 35 of 2001 but the same has been dismissed by the impugned order contained in Annexure-9. 3. For rejecting the claim of the three daughters of the original writ petitioner, the authorities placed reliance upon the fact that they 4 were unable to prove by unimpeachable evidence that their father died after enactment of the Hindu Succession Act, 1956. From the discussions made in the various orders of the authorities, particularly the Board of Revenue, it transpires that a deed of sale dated 17.07.1939 established that father of the original writ petitioner was alive till then, i.e. 1939. 4. According to learned counsel for the petitioners even if path of least resistance is adopted, since the father of the original writ petitioner and his three sisters were alive till the enactment of the Hindu Women’s Right of Property Act, 1937 (hereinafter referred to as the “Act” of 1937), his mother acquired a limited estate equal to share of her husband in the entire concerned property and such interest, subject to evolution & devolution on account of birth and death, became an absolute estate of the mother after the enactment of the 1956 Act. It appears that death of the mother is admittedly in the year, 1965. On that basis, it has been submitted that in the interest of the mother, all the three daughters as well as the son, the original writ petitioner would be entitled to equal shares and at least in this view of the law and facts, the 5 authorities under the Act should have allowed the claims lodged by the three daughters and to that extent, the objection filed by the original writ petitioner ought to have been accepted. 5. On the otherhand, learned counsel for the state submitted that the three sisters of the original writ petitioner should not be treated as raiyats or land holders within the meaning of the terms under the Act because no Jamabandi of their land had been separately created and they were not paying any revenue to the state separately. Learned counsel for the state further referred to the discussions made by the learned member, Board of Revenue in the impugned order to point out that reliance had been placed upon a judgment of the Supreme Court in the case of State of Bihar vs. K.M. Zuberi, 1996(2) PLJR (SC) 55 and on that basis, the learned Board of Revenue held that personal law of the parties was not relevant for deciding or interpreting the meaning of the term “family” under the Act. Therefore, according to learned counsel for the state; on the basis of personal law, the sisters of the original writ petitioner would not be permitted to claim part of the lands shown to be lands of the original writ 6 petitioner. 6. On a careful perusal of the judgment of the Apex Court in the case of State of Bihar vs. K.M. Zuberi (supra), it is clear that the said judgment is limited to the issue whether an adult son of a Muslim land holder can claim an additional unit on the basis of a proposition that adult son of Hindu land holder is granted an additional unit. The Apex Court examined the provisions of the Act and approved the minority view of justice L.M. Sharma of this court as he then was and held that definition of “family” cannot depend upon personal law of the parties and there is no provision in the Act for grant of additional unit. Units are made available to an adult son of a Hindu only because he himself qualifies as a family. While laying down such proposition of law, the Apex Court approved the earlier Full Bench decision of this court reported in 1982 PLJR 321 (Imamul Hassan Chaudhary vs. State of Bihar). 7. In the case of Imamul Hassan Choudhary (supra), the Full Bench of this court held that a Muslim son is not entitled to separate unit during the lifetime of his father and, therefore, he cannot be treated as a Raiyat during the lifetime of his father 7 and is not entitled to a separate unit. 8. In the present case, the aforesaid judgments are not applicable and the learned Board of Revenue clearly erred in relying upon the judgment in the case of State of Bihar vs. K.M. Zuberi to deny claim of the three sisters noticed above. 9. Learned counsel for the petitioners has rightly placed reliance upon Division Bench judgments of this court in the case of Savitri Devi vs State, 1977 BBCJ 455 and Dwarka Singh vs State of Bihar 1977 BBCJ 696 in support of the proposition that in case of death of a land holder after the Hindu Succession Act, the issue of surplus land has to be determined on the basis that the heirs have a definite interest. This was the proposition laid down in the case of Savitri Devi (supra). In the case of Dwarka Singh (supra), the land holder was member of a joint Hindu Family and died leaving behind his son and three daughters. It was held that on his death, his interest would devolve on the son and the daughters and while proceeding against the son under the Act, the authorities have to consider the question of excess land after excluding the shares of the three 8 daughters. 10. In the present case, on account of death of the mother of the original writ petitioner in the year, 1965, the share of the mother cannot be treated to have devolved only upon the original writ petitioner excluding his sisters. In that view of the matter, following the Division Bench judgment in the case of Dwarka Singh (supra) it is held that authorities under the Act were required to exclude the share of the three sisters from the 50 & odd acres of land shown against the original writ petitioner alone. This is required to be done by the authorities even if it be accepted that the compromise decree of the year, 1976 was collusive or of no effect, because of coming into existence after the appointed day, ie. 09.09.1970. 11. In view of the aforesaid findings and discussions, the writ petition is allowed to the extent that the impugned order of the Board of Revenue and the related orders passed by the original authority and the appellant authority are quashed. The matter is remitted back to the Collector under the Act to find out after the share of the three daughters is left out, whether the original writ 9 petitioner would still have any surplus land or not? If he will not have any surplus land beyond the permissible ceiling area, in that event, the proceeding against the original writ petitioner has to be dropped. If it is found that he still holds land beyond the ceiling area, in that event, lands will be allotted to the original writ petitioner within the permissible ceiling area as per choice of land already indicated by him. It goes without saying that the other lands left out by treating them to be under the share of the three sisters of the original writ petitioner, can be subject matter of another inquiry by the ceiling authorities who may club those lands with the lands of the family as defined under the Act comprising those three sisters. 12. There shall be no order as to costs. Patna High Court Dated, the 13th day of August, 2010 AFR/AKV/- (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava,J.)