Case: DAULAT SINGH (D) THR. LRS Vs. THE STATE OF RAJASTHAN &amp; ORS

2. The facts underlying the appeal are as follows: Daulat Singh (since deceased and now represented through his legal representatives and who shall hereinafter for the sake of convenience be referred to as the appellant) was owner of 254.2 Bighas of land. On 19.12.1963, he gifted away 127.1 Bighas of land to his son, Narpat Singh. After the said transfer, the appellant was left with 17.25 standard acres of land, which was below the prescribed limit under the Ceiling Act.3. Although, a proceeding was initiated under the ceiling law, the same was dropped on 15.04.1972 by the Court of Deputy SubDivisional Officer, Pali, Rajasthan. While dropping the proceedings, the Court observed that, the amendment of Section 30DD of the Rajasthan Tenancy Act, 1955 (hereinafter Tenancy Act of 1955) was effective from 31.12.1969, and since the gift deed was executed before the aforesaid amendment, the aforesaid transfer was valid.4. However, by notice dated 15.03.1982, the Revenue Ceiling Department re-opened the case of the appellant. The Revenue Ceiling Department while issuing the aforesaid notice stated that the earlier order dated 15.04.1972, passed by the Court of Deputy Sub-Divisional Officer, Pali was rendered without investigating whether the land transfers are recognizable as per the provisions of Section 30 of the Tenancy Act of 1955. The same being in contravention of the provisions, needs to be reopened.5. The Court of Additional District Collector, Pali vide order dated 28.10.1988, declared that the mutation of the land done in favour of the son of the appellant was invalid as there was no acceptance of the gift. It was declared therein that the appellant was holding 11 standard acres of extra land over and above the ceiling limit. The Collector, therefore, directed the appellant to handover vacant possession of the aforesaid 11 standard acres of extra land to the Tahsildar, Pali.6. Aggrieved by the aforesaid order, the appellant preferred an appeal before the Board of Revenue. Vide order dated 02.07.1990, the Board of Revenue, modified the earlier order dated 28.10.1988, and upon re-calculation held that the appellant is holding 4.5 standard acres of land in excess of the ceiling limit.7. Aggrieved, the appellant preferred a Writ Petition under Article 227 of the Constitution of India, 1950 before the High Court. Vide order dated 02.04.1997, the learned Single Judge of the High Court allowed the writ petition preferred by the appellant. The Court held that the case was beyond the purview of Section 6 of The Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (hereinafter Ceiling Act of 1973) because the land was transferred by way of gift before 26.09.1970. It was further held that the aforesaid transfer of land, by the appellant in favour of his son by virtue of a registered gift deed, being bona fide, was valid in the eyes of law. The learned Single Judge, therefore held that there is no surplus land which is available with the appellant which can be resumed.8. Thereafter, the respondents preferred an appeal against the above order before the Division Bench, which allowed the appeal holding that the gift deed was invalid as the son of the appellant was unaware about the same. The Division Bench vide impugned judgment dated 25.04.2008, held that the learned Single Judge passed the judgment in ignorance of the provisions of Section 30C and 30D of the Tenancy Act of 1955. Therefore, the Division Bench of the High Court set aside the order passed by the Single Judge Bench for being untenable and upheld the order passed by the Board of Revenue.9. Aggrieved, the appellant has preferred the present appeal by way of Special Leave Petition before this Court.

Reasoning:
13. Section 15 of the Ceiling Act of 1973 confers upon the State Government the power to re-open the cases, if it is satisfied that the earlier order was in contravention with the provisions of the Act and is prejudicial to the State interest. The aforesaid direction to re-open cases must be preceded by a show-cause notice served upon the person concerned. However, the proviso clause states that no notice can be issued after the expiry of five years from the date of the final order sought to be re-opened or after the expiry of 30th June 1979, whichever is later.14. Therefore, the provision mandates that, after the expiry of five years from the date of final order sought to be re-opened, or after the expiry of 30th June 1979, whichever is later, no notice for re-opening of such cases can be issued. Therefore, the relevant dates for determination of the issue of limitation is the date of order sought to be reopened and the date of issuance of show-cause notice under Section 15 of the Ceiling Act of 1973.15. During the course of the hearing and on a query raised by the Bench, the respondents have brought to our notice the xerox copy of the Notice dated 20.11.1976 issued by Deputy Government Secretary, Revenue (Billing), Rajasthan.16. It ought to be noted that, the aforesaid notice was sent to the appellant on 20.11.1976, that is within five years of the earlier order dated 15.04.1972. Further, the notice also satisfied the requirements as provided under Section 15 of the Ceiling Act of 1973, and hence was valid in the eyes of law. The case was, thus, re-opened within the time period stipulated under Section 15 of the Ceiling Act of 1973. Therefore, issue no.1 is answered in favour of the respondent-State.17. The High Court, while passing the impugned order, held the registered gift deed dated 19.12.1963 to be invalid on the basis that it did not meet the requirements as provided under Section 122 of the Transfer of Property Act, 1882. The Division Bench while upholding the observations of the Board of Revenue, further observed that a perusal of the gift deed does not show acceptance of gift by the donee, rather it seems that donee was even unaware of the gift.24. At the outset, it ought to be noted that Section 122 of the Transfer of Property Act, 1882 neither defines acceptance, nor does it prescribe any particular mode for accepting the gift.26. The aforesaid fact can be ascertained from the surrounding circumstances such as taking into possession the property by the donee or by being in the possession of the gift deed itself. The only requirement stipulated here is that, the acceptance of the gift must be effectuated within the lifetime of the donor itself.27. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in the case of Asokan v. Lakshmikutty, (2007) 13 SCC 210  14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.28. In the present case, the gift deed itself contained certain recitals as mentioned below:…Out of the aforesaid land in all the khasras 1/2 part means 50 percent I am giving you in gift being my younger son with my pleasure. My elder son Shri Babu Singh has no objection to this gift … From today you are the owner of the half of the land gifted to you and you will have possession hereafter. You have the complete right over the aforesaid land for cultivation from today onward. Now you get the gifted land mutated in your name… These lands have not been sold or under Will or under the gift earlier. Further I state that the aforesaid land is free from any debt liability… The registration of the aforesaid gift has been done by me in my sound physical and mental health with consent without any undue coercion and pressure from anyone. I have gifted the aforesaid land with my sweet will and wish…These recitals clearly indicate that donor intended to part with ownership and possession immediately after the execution of the gift deed.The Mutation entry in the Revenue Record of Gram Sedriya, District Pali dated 28.10.1968 clearly reflects that half portion of appellants land was bestowed as a gift by the appellant to his son through a registered instrument of gift dated 19.12.1963.30. Furthermore, the statement dated 31.08.1984, rendered by the appellant-donor before the Court of Additional District Magistrate indicates that the donee was already a major at the time of the execution of the gift deed. He further stated that after execution of the gift deed the donee started cultivating on the same.31. The aforesaid statement of the appellant-donor is completely supported by the statement made by the donee on 15.12.1988 before the Court of Additional District Magistrate. Therein, the donee clearly stated that, as he did not get along with his step-mother, he started living separately and the land was transferred to him by virtue of gift deed was under his possession and he was cultivating the same.32. Therefore, the abovementioned circumstances clearly indicate that there was an acceptance of the gift by the donee during the lifetime of the donor. Not only the gift deed in itself contained recitals about transfer of possession, but also the mutation records and the statements of the both the donor and donee indicate that, there has been an acceptance of the gift by conduct.33. The respondents failed to bring on record any evidence to rebut the fact that the donee was in enjoyment of the property. In light of the same, the learned Single Judge Bench took a plausible view that, it was a transfer between a father and a son and there was a valid acceptance of the gift when the donee-son started living separately. Lastly, it ought to be noted that apart from the point of acceptance by the donee as held above since the deed is registered, bears the signature of the donor and has been attested by two witnesses, the requirements under Section 123 of the Transfer of Property Act, 1882 have been satisfied. In line with the aforementioned observations, issue no.2 is answered in favour of the appellant.34. The learned Division Bench, while setting aside the judgment of the learned Single Judge observed that the learned Single Judge passed the order in ignorance of the provisions of Section 30C and 30D of the Tenancy Act of 1955.38. As discussed earlier, Section 30C of the Tenancy Act of 1955 provides for the ceiling limit of 30 standard acres for a family of five members or less. The appellant admittedly was having a family of less than five members and was originally holding around 34.4 standard acres. Subsequently, by virtue of registered gift deed dated 19.12.1963, the appellant had transferred around 17.25 standard acres to his son.39. Section 30D provides that any transfer, on or after 25.02.1958, other than the ones provided in sub-section 1(i) and 1(ii) shall be deemed to have been entered to defeat the purpose of ceiling act. Such transactions were declared to be void. The aforesaid two exceptions being transfer by partition and transfer to a landless person.40. However, Section 30DD provides further exceptions to Section 30D as it recognizes certain transfer after the cut-off date provided under Section 30D. Section 30DD recognizes transfers of area up to 30 standard acres made in favour of an agriculturalist, his son or brother who are capable of doing agriculture and also intend to take up agriculture as a profession. However, such transfer must have been made before 31.12.1969 and the transferee must have attained the age of majority on or before the aforesaid date.43. It is, thus, apparent that the legislature has carved out two separate categories of lands, one which is includable and other which is outside the purview of ceiling laws. Once such a classification has been made, with their being no challenge to its vires, it is the solemn duty of every authority to give full effect to the same, in both letter and spirit. Although, it is possible that there can be a voluntary transfer which would meet the qualifications of both Sections 30D and Section 30DD, however, it is significant to note that Section 30DD opens up with a non-obstante clause with overriding effect on Section 30D, as a result of which, any land included within its purview would be protected from the rigors of Section 30D of the Tenancy Act of 1955. Therefore, if the appellant succeed in its endeavor to establish that the transfer was covered under Section 30DD of the Tenancy Act of 1955, then such transferred land has to be exempted from computation of confiscable land, irrespective of the fact that it falls within the ceiling limit as prescribed under Section 30D of the Tenancy Act of 1955.44. Another significant piece of evidence is the statement of the transferor-appellant dated 31.08.1984, wherein he has stated that the transferee-son was living separately and was cultivating the aforesaid gifted property. It is also mentioned that the transferee is in possession of an ox and equipments for ploughing and agriculture. The aforesaid facts have been reiterated by the transferee as well vide his statement dated 15.12.1988, wherein he has clearly stated that, he is in independent possession of the gifted property and has been cultivating the said land.45. The aforesaid pieces of evidence clearly indicate that due to certain family issues, the appellant and his son were living separately. During such separation, when the transferee-son had already attained the age of majority, the appellant-owner of the land, who was an agriculturalist himself, transferred the aforesaid land in favour of his son, so as to enable him to cultivate the same. The statements of transferor and the transferee clearly indicate that the transferee had the equipment and skills and was sustaining himself as an agriculturalist.46. Lastly, it must be taken into consideration that, the aforesaid transfer was executed way before the cut-off date stipulated under Section 30DD i.e. 31.12.1969. Therefore, the registered gift deed dated 19.12.1963 was a bona fide transfer squarely covered within the ambits of Section 30DD, which intended to protect the rights of agriculturalists. Issue no. 3, stands answered in favour of the appellant, as the transfer is not invalid as it stands protected as per the provision of Section 30DD of the Tenancy Act of 1955.