Case: State of Bihar Vs. Shri K.M. Zuberi and Others

In the ceiling fixation case of a land holder Aftab Ahmed, the Member, Board of Revenue came to the conclusion that an adult son of a land holder governed by Mohammedan law would be entitled to a separate unit since an adult so n of a land holder governed by the Mitakshara School of Hindu Law is entitled to the same. The State of Bihar challenged the said decision in Patna High Court by filing a Writ Petition and when the matter came up before a Division Bench, in view of the significance of the matter the Division Bench referred the matter to a larger Bench and the case was heard by five judges of the Court. The majority view was expressed by Chief Justice Sandhawalia, as he then was, and the minority vi ews were those of Justice H.L.Agrawal, as he then was, and Justice L.M. Sharma, as he then was. Three questions were formulated by the Court, those questions being:"1. Whether the personal law applicable to the family has to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of ceiling Area and Acquisition of Surplus Land) Act, 1961. despite the insertion of clause (ee) and Explanation II thereto in section 2 of the said Act?2. If the major sons of a family governed by the Mitakshara School of Hindu Law are entitled to a separate unit under the said Act then would a major son of a family governed by Mohammadan Law be debarred therefrom?3. Whether the Fuli Bench in Amamul Hasan Choudhary vs, State of Bihar &Others (1982 BBCJ 208) lays down the law correctly on the aforesaid points?The short facts are that the land holder Aftab Ahmed was shown to be holding 50.02 acres in the draft statement. The said land-holder filed an objection claiming that he is entitled to one additional unit for his adult son. This was rejected by the Additional Sub-divisional Officer. He determined 11.12 acres to be the surplus. The land holder appealed to the Collector but the appeal was dismissed for default. The land holder carried the matter in revision to the Board of Revenue. The Member, Board o f Revenue took into consideration the Amendments to the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus land) Act, 1961 (Bihar Act 22 of 1962) (hereinafter referred to as The Act) made under Act 1 of 73 and Act 72 of 76 a nd came to the conclusion that personal law of the land holder is not required to be taken into consideration for determination of the holdings. He further held that since the adult son of a land holder governed by the Mitakshara Law is entitled to a separate unit the decision should be identical with regard to the land holder governed by Mohammedan law. Accordingly he allowed the revision and called upon the authorities to re-determine the ceiling. The State of Bihar being aggrieved by the same filed Writ Petition in the Patna High Court. The learned Chief Justice who spoke for the majority on an analysis of the different provisions of the Act as well as the tracing history of the legislation and the amendments made thereto came to the conclusion that in the ceiling law the statutory "family" as defined in the Act has wholly submerged the ceiling of the land holder and such concept of family" is entirely secular in character and has universal application irrespective of religion, faith or the personal law applicable to individual members. He further held that despite definition of the statutory "family" and its secular nature excluding personal laws, to still bring in the concept of the Mohammeda n family or Christian family or Mitakshara family for the purposes of the act, is basically fallacious and would run against the gamut of ceiling legislation. The learned Chief Justice accordingly answered the question no.1 in the following words:"It is held that the personal law applicable to the family is not to be taken into confederation for the determination of its holding under the Bihar land reforms (Fixation of ceiling Area and Acquisition of Surplus Land)Act 1961. "far as second question is concerned the learned Chief Justice answered as follows:-"The answer to question no. 2 is rendered in the negative and it held that if the major sons of a family governed by the Mitakshara school of Hindu laws are entitled to a separate unit under the Act then the major sons of a family governed by Mohammedan Law are entitled to the same."a necessary consequence the third question was answered in the negative and the decision of the Court in Imamul Hasan Choudhary vs. State of Bihar and otherwiseJ. did not agree with the answer given to the second question by the learned Chief Justice and then adverting to the provisions of the Mitakshara law and how a minor male child of a Mitakshara coparcenery acquires interest in the property by his birth and is entitled to a share and how the position of a Mohammedan son is entirely different came to the conclusion that the earlier decision of the Patna High Court in Imamul Hasan Choudharys case has laid down the law correctly and, therefore, the adult son of a Mohammedan land holder would not be entitled to separate unit. Sharma J, also differed from the majority view expressed by the Chief justice and agreed with the conclusion of Agrawal, J. but on different ground. The learned Judge held that a land holder whether an individual or a family within the meaning of the Act belonging to any religion, faith or group cannot claim additional land for his ceiling area on the ground of a major son. In other words according to Sharma J, the Act no where conferred an additional unit on the major son o f a land holder belonging to Mitakshara School of Law, and if he gets a separate unit it is on account of his own.

Reasoning: It is to be noted that so far as the answer to the first question is concerned, there is no dispute between the parties and, in our view rightly since the statutory definition of "family" in Section 2 (ee) does not conceive of any personal law applicable to the said family and, therefore, no personal law can be taken into consideration for determination of the ceiling surplus with the land holder under the Act. In order to rest the correctness of the majority view, so far as the second question is concerned, it would be appropriate for us to examine the relevant provisions of the Act. Section 2 (aaa) defines "ceiling area" to mean the area of land fixed under Section 4 as the ceilinganalysis of the aforesaid provisions unequivocally indicate that under the Act the ceiling area is required to be determined of a "family" as defined in Section 2(ee) and. therefore, the land-holder of whose ceiling is going to be determined may be either a person. his or her spouse, and minor children. A major child whether belonging to a Hindu family or a Mohammedan or Christian is not conceived of getting an additional unit while determining the ceiling area of a land holder. A major son of a Hindu can get an independent ceiling determined provided he is raiyat within the meaning of Section 2(k) and has become a land-holder within the ambit of Section 2 (g) but not as a successor to the land-holder whose ceiling is being determined on the ground that he has a right in the property by virtue of birth. In other words, under the Act no distinction has been maintained between Hindu, Mohammedan, Christian for determination of the ceiling area in the hands of the land-holder.The majority view expressed by Chief Justice as well as by Justice Agrawal approached the problem on incorrect premise as if under the Act the adult son of a land-holder governed by Mitakshara School of Hindu Law has been given an additional unit. Minority view of Justice L.M. Sharma is wholly correct one. The ultimate conclusion, as expressed by the majority judgment, in answering question no. 2 is, therefore, unsustainable in law. In our considered opinion, under the Act while determining the ceiling area in the hands of a land-holder whether governed by Mitakshara law or governed by Mohammedan law no additional unit is given to an adult son of the land-holder and, therefore, the earlier view expressed by Patna High Court in Imamul Hassan Choudhrys case reported in 1982 (Vol.30) Bihar Law Journal Reports p.150 lays down law correctly.