Vithaldas Jagannath Khatri (D) Through ... vs The State Of Maharashtra Revenue And ...

1. The socialistic agenda of the nascently formed Indian State with large landless poor population was given an impetus inter alia by a number of State legislations for re-distribution of agricultural land, by putting a ceiling limit on the same, and then allotting it to the landless poor. We are concerned here with the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (hereinafter referred to as the ‘said Act’). The said Act also went through many amendments top fine tune different Reason: aspects, most importantly the aspect of plugging loopholes, whereby 1 owners having land in excess of the ceiling limit would endeavour to somehow re-distribute it among the family to bring it within the ceiling limit, or at least, to reduce the excess land. The objective of the said Act can well be deciphered from its preamble, which reads as under:

4. The factual matrix has to be examined in the context of the aforesaid provisions, and in the present appeal we are practically concerned with one document, which is the Partition Deed dated 31.1.1970, which has been duly registered, i.e., both the document and its registration are undisputedly before the cut-off date of 26.9.1970.

5. The Partition deed has been executed between five parties – late Shri Vithaldas Jagannath Khatri and his then minor son and three minor daughters. It may, however, be noticed that two of the minor daughters attained majority before the commencement date of 2.10.1975, though they were not major on 26.9.1970. In terms of this document, the agricultural land of the Hindu Undivided Family (‘HUF’) is sought to be divided by mentioning all the parties as part of the HUF. The lands were 6 stated to be used jointly and shares in the lands were given to both, the minor son and the daughters stating as under:

6. After setting out the aforesaid recital, the property falling to each of the parties is mentioned and post that, before the signatures, it is further stated as under:

9. On remand, a fresh order was passed by the SDO, Chikhali 8 District, Buldana on 7.5.1984. Various aspects of holding of Vithaldas were examined. On the matter being revisited in these proceedings, land measuring 59 acres and 35 gunthas was deemed surplus, under Section 3(2) of the said Act, while excluding (a) Potkharab land of Vithaldas, to the extent of 12.16 acres; (b) Field Survey No.106, which was stated to be vesting with the wife of Vithaldas, having been gifted by her father-in- law Jagannath, and found that the same continued to be in possession of Jagannath, as also recorded in the Record of Rights and crop statements;

12. The aforesaid appellate order was challenged by Vithaldas and his wife in the writ proceedings before the Bombay High Court, Nagpur Bench, but that petition was dismissed vide oral judgment dictated over a period of 7.9.1987 to 15/16.9.1987. There were certain other aspects also urged in those proceedings, but they are not relevant for the present appeal. The High Court agreed with the finding that the daughters, not having a share in the property, a Partition Deed could not have conferred 10 any interest on them, albeit it was before the cut-off date of 26.9.1970.

15. The Special Leave Petition (‘SLP’) was filed only by late Vithaldas, through his legal representatives. The two elder daughters are, thus, appellants as legal heirs of late Vithaldas, in the present proceedings. This is of significance as the contention of respondents is that the two elder daughters only stepped into the shoes of late Vithaldas, and that they cannot de novo start proceedings in their own rights. Leave was granted on 31.8.2009, and the interim order of status quo was directed to continue throughout. On 23.11.2016, during the course of hearing, an order was passed to obtain clarity, whether in pursuance of the Partition Deed, the transfer of rights was ever reported to the revenue authorities, in terms of Sections 148 & 149 of the Maharashtra Land Revenue Code, 1966. The action, if any, taken by the revenue authorities was also not apparently reflected in the records before the Court. Time was granted to place on record the requisite material qua the developments post the execution of the Partition Deed.

17. The picture which emerges from the documents produced is that in pursuance of the Partition Deed, which was obviously produced, both for the Record of Rights and the Crop Register, the names of the two elder daughters were entered though through their guardian, late Jagannath (the grandfather), as they were minors at the relevant time, while the corresponding endorsement on their attaining majority, before the 13 commencement date 2.10.1975 was seemingly not made.

40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied.

4. Vithaldas filed a return under Section 12 of the Act on 02.10.1975. The authority passed an order declaring the total holdings of Vithaldas to be 118 acres and 17 guntas. 60 acres and 27 guntas were held to be surplus land and in excess of the ceiling area. 2 The Tribunal dismissed the appeal filed by Vithaldas as also cross objections by the State. By order dated 02.03.1982, the writ petition filed by Shri Vithaldas came to be allowed on the score that principles of natural justice were violated. Thereafter, the Sub- Divisional Officer passed order dated 07.05.1984 whereunder he excluded the land given to his elder daughters, viz., Shakuntala and Durga Devi, under the partition deed. The land which is allotted to the elder daughters by the partition deed, was comprised in village Babulgaon. It comprised of a total 31 acres and 29 guntas. In Survey No. 12, the area is 17 acres 23 guntas and in Survey No. 14, the area is 14 acres and 6 guntas. He further found that the family unit was entitled to retain 60 acres and 15 guntas. 6 acres 15 guntas were found to be Pot kharab lands and adding the same to 54 acres, (the limit for the lands in question) the family unit was found entitled to hold 60 acres and 15 guntas. It was further found that 59 acres and 35 guntas were deemed to be surplus land under Section 3(2) of the Act. The land gifted to his wife Kamla Devi by Shri Jagannath Khatri (fathr of Vithaldas) was found 3 as having remained with him (the donor) and his name appeared in the record of rights. Thus, after excluding the 31 acres and 29 guntas of land, allotted to the elder daughters and the land which was gifted to the wife of Vithaldas but continued to be in possession of the donor, the total land was 119 acres and 50 guntas.

5. Ceiling Appeal No. 59 of 1984 came to be filed by Vithaldas, his wife and appellants 3 and 4 who are the son and youngest daughter of Vithaldas.

7. In the reply filed by Shri Vithaldas and his wife to the cross-objections, in so far as it is related to the partition, it was stated as follows:

8. The Tribunal dismissed the appeal filed by the appellants and allowed the cross objections. Resultantly, the land, which is the subject matter of partition deed and which stood allotted to the elder daughters and the property which was the subject matter of gift deed in favour of his wife came to be included 6 in total land holding of the family. The total extent of land was found to be 181 acres and 26 guntas. 111 acres and 39 guntas were declared surplus land.

9. Shri Vithaldas and his wife challenged the order before the High Court. Therein, appellants 1 and 2 before us were respondents 6 and 7. Appellants 3 and 4 before this Court were respondents 4 and 5. The learned Single Judge, by judgment, upheld the order of the Tribunal, in regard to viz., the property, which was subject matter of the gift in favour of the second appellant (wife) and the properties which were set apart for the two elder daughters. On the basis of an error determined by the learned Single Judge, the surplus land was held to be 103 acres and 36 guntas. It was Shri Vithaldas and his wife who preferred the Letters Patent Appeal No. 3 of 1991. By judgment dated 27.11.2007, which is impugned in this appeal, the Division Bench upheld the view taken by the learned Single Judge. His wife Smt. Kamladevi, though the 2nd appellant before the High Court is made a proforma respondent.

17. That crop statements for other years were not filed it was noted. Ludicrous it was found that the minor daughters had the necessary wherewithal to cultivate the land independently. It was found that Vithaldas continued to hold the lands.

(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit.” 29 The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas.

45. The appeal is accordingly allowed. The parties are left to bear their own costs.

In my view, the above finding is correct, or not any rate cannot be said to be perverse on the basis of the evidence on record in the instant case. It, therefore, deserves to be upheld.” Though the appeal was filed before the Division Bench, by Shri Vithaldas (appellant No.1) and his wife, during the pendency of the appeal Vithaldas passed away. Thereafter, the impugned judgment would show Respondents 4 to 7 as LRs of appellant No.1.

“9. No person shall, at any time on or after the appointed day, acquire by transfer or partition any land, if he already has land in excess of the ceiling area, or land which together with any other land already held by him will exceed in the total the ceiling area.

(b) any land is transferred in contravention of section 8 then, in calculating the ceiling area which that person, or as the case may be, the family unit, is entitled to hold, the land so transferred shall be taken into consideration, and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area for that holding, notwithstanding that the land remaining with him or with the family unit may not in fact be in excess of the ceiling area.

11. Restriction on partition:- Where any land held by a family is partitioned after the 26th day of September 1970, the partition so made shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, and shall accordingly be ignored, and any land covered by such partition shall, for the purposes of this Act, be deemed to be the land held by the family; and the extent of share of each person in the land held by the family shall be taken into consideration for calculating the ceiling area in accordance with the provision of section 3.

objection to the decision, order, declaration or award which he could have taken by way of an appeal:

(iii) Compelling the production of documents.

COPARCENARY PROPERTY ALONE IS PARTIBLE.

“453.Shares for women.-The interest of the women of the family, whether wives, widows, mothers or daughters, where a partition took place at the will of others were specially safeguarded by the Sanskrit writers.

77. The father, no doubt had the power under the Mitakshra Law to effect a partition even if the sons did not agree to the same.

Vitthaldas Khatri, age 14 years,

4. Ku. Durgadevi d/o.

Vitthaldas Khatri, age 11 years.

5. Ku. Beladevi d/o.

Vitthaldas Khatri, age 8 years.

Party No.2,3,4,5 being minors represented by Guardian grandfather Jagannath Ganeshdas Khatri, age 65 years.

Occu. Of all: Agriculture, all r/o. Mangrul Navghare, Tq.Chikhali, Dist. Buldhana.

We all are the members of the HUF and party No.2 to 5 are the issues of part No.1 and party No.3,4,5 are the sisters of the party No.2 and party No.2 is the brother of party No.3,4,5. We have been using our property jointly. Party No.2 to 5 have to take the education and to see that each of them take it freely and to provide for the expenses therefore and to see that each of them will meet the 78 expenses out of their own property and that no dispute took place between them in future, therefore, we are executing and keeping with us this deed of partition. The property fall on the share of each party is shown in front of his name….

xxx xxx xxx xxx In this way we have partitioned over estate, the property fallen to the share of party have taken its possession and became the full owner thereof. Now nobody is concerned with the property of others. Out of us for the education and marriage purpose of party no.2 to 5 and for the benefits of our family and for the successful future, we of our free will and consideration executed and kept this deed of partition, on this 31st day of January, 1970.

xxx xxx xxx xxx”

86. I would also think that no acceptable reasons are forthcoming as occasion warranting such a partition apart from its illegal and unfair terms.

THE MATERIALS RELIED ON IN THE ORDER OF THE TRIBUNAL IN REGARD TO THE FINDING ABOUT THE PARTITION DEED

Thereunder it is inter alia stated that on an application to the concerned office, reply was received to the effect that with regard to the field Survey No.12 and 14 of village Babulgaon as well as field Survey No.64 village Mangrul, that the record 92 from 1970 to 1975 is in a mutilated condition and the mutation register for the period from 1964 to 1978 is not traceable.

“For Village Mangrul, the crop statement is not available for the period 1970- 1972, and for Village Babhulgaon crop statement is not available for the period 1970-1973 for Survey No.14, while crop statement is not available for Survey No.12 for the period 1971-1972.”

1)Vithaldas Jagannath,

2)Shakuntala Bai Vithaldas through the guardian Jagannath.

Two features may be noted.

mother.” (Emphasis supplied)

109. Also, no doubt the elder daughters and others were respondents in the Writ Petition and Letter Patent Appeal. It may be true that a respondent and even a person who is not a party can with leave prefer an appeal. But when they have not challenged the order of the Tribunal and even the judgment of the learned Single Judge and as the Vithaldas had fully contested the matter and in view of my finding that the properties allotted to the elder daughters, are liable to be found held by Vithaldas, I would not be inclined to interfere, particularly, as I have noted above when the perusal of the Special Leave Petition would reveal that Vithaldas (now deceased) through the LRs-the petitioners is shown in the cause title. It must be 104 remembered that the petitioners upon the passing away of Vithaldas during the pendency of the Latter Patent Appeal were recorded as his legal representatives.

111. I would think, therefore, the appeal must fail and it stands dismissed.

August 29, 2019.