Case: Pitambar Singh  Vs. State Of Bihar

there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on to observe:- "Thus although there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land in question." We do not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs as under:- "family means and includes a person, his or her spouse and minor children.Explanation I - In this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation II - The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act" Therefore, the language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. In our opinion, this contention was absolutely right in view of the language of Section 11(1) of the Ceiling Act, which runs asFinal publication of draft statement:(1) When the objection under(3) of Section 10, appeal and revision, if any, relating thereto have been disposed of, the Collector shall subject to the provision of Section 15A(5) make such alteration in the draft statement as may be necessary to give effect to any order passed on the objection or on appeal or revision and shall cause the said statement with the alteration, if any, to be finally published at such places and in such manner, as may be prescribed under(2) of Section 10 and a copy thereof duly certified by the Collector in the prescribed manner shall be given to the land holder concerned.Now, in this case, as has been noted by the High Court in the LPA, it was the old draft statement published when in fact even the matter was not finally decided in between the State and the land holders. A specific contention was, therefore, raised that unless the controversy between the State and the land holders was completed, there could be no draft statement, much less, publication thereof. Such draft statement which was published prematurely, could not be treated as a proper draft statement and there could be no publication thereof also. In fact, when we see the order passed by the Division Bench, it is correctly noted therein that the publication, as contemplated, is to be made only after the disposal of the objection, appeal and revision and if the publication is made before the disposal of the objection or appeal or revision and no change is brought in the draft statement by the disposal of the objection, the appeal or the revision, the publication will hold good, but if any orders in such objection, appeal or revision bring about a change, the publication will not hold good because themandates publication of a draft statement as changed while disposing of the objection or appeal or revision. The Division Bench has also drawn a correct conclusionlogical conclusion, therefore, would be that by reason of the appellate order dated 15.12.1977 final publication of the draft statement as was made prior thereto stood obliterated with the order passed on the objection, on the basis whereof the same had beenDivision Bench, however, noted that no such draft statement was ever published altering the earlier draft statement. Taking this in view, the Court then proceeded to hold that since there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on toalthough there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land indo not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs asmeans and includes a person, his or her spouse and minor children.Explanation IIn this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation IIThe personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of thethe language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred.