Case: VITHALDAS JAGANNATH KHATRI (D) THROUGH SMT. SHAKUNTALA ALIAS SUSHMI Vs. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT

2. The brief facts necessary to appreciate the controversy in this appeal are as follows: a partition deed dated 31.01.1970 (duly registered on 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatri and his minor son and three minor daughters. In terms of this document, the agricultural land of the Hindu Undivided Family (HUF) is sought to be divided by mentioning that parties two to five - who are the four children of Vithaldas - have to be provided expenses for their education and marriage, which will be borne out of the separate property allotted to each. An earlier partition deed was executed between Vithaldas and his father Jagannath on 20.01.1955. Separate provision was made in favour of the wife of Vithaldas by means of a gift deed of land in her favour8. It will thus be seen that under Section 11 of the 1961 Act, where any land held by a family is partitioned after the cut-off date of 26.09.1970, 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 Amending Act of 1972 and shall accordingly be ignored. There is no doubt that on the facts of this case that the partition deed, as well as its registration, is prior to the cut-off date9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas was declared surplus. An appeal preferred against this order was dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On 02.03.1982, a learned Single Judge of the Nagpur Bench of the Bombay High Court remitted the matter to the Surplus Land Determination Tribunal for fresh enquiry. On remand, a fresh order was passed by the Sub-Divisional Officer on 07.05.1984, where land admeasuring 59 acres 35 gunthas was deemed to be surplus. An appeal was filed against the aforesaid order by Vithaldas, his wife, his son and the third daughter Bela Devi under Section 33 of the 1961 Act. The two other minor daughters did not file any appeal, as they were satisfied with the view adopted by the Sub-Divisional Officer, by which no part of the property that devolved on them by means of the partition deed was declared surplus. The State filed cross-objections in the appeal filed by Vithaldas, challenging the exclusion of the land, inter alia, of the two elder daughters. However, the State did not take care to implead them. The appeal filed by Vithaldas et. al. was dismissedby the Appellate Authority, who allowed the cross objections of the State by its order dated 03.12.1984. The appellate authority found that the partition deed dated 31.01.1970, though before the cut-off date, was against the principles of Hindu Law, to the extent that it gave a share to minor daughters in ancestral land. On this basis, the partition deed was declared to be of no effect in law10. The aforesaid appellate order was challenged by Vithaldas and his wife in writ proceedings before the Bombay High Court. The learned Single Judge dismissed the writ petition in September, 1987. An intra- court appeal was preferred which was then dismissed by the impugned order dated 27.11.2007. A Special Leave Petition was filed by Vithaldas through his legal representatives who are the two elder daughters, as his legal heirs, as by now Vithaldas had expired. During the course of the initial hearing, this Court, by its order dated 23.11.2016, passed an order stating that it wished to see revenue entries in terms of Section 148 and 149 of the Maharashtra Land Revenue Code, 1966, post- execution of the partition deed. An additional affidavit was filed by the son of the late Vithaldas, stating that records from 1970-75 are in a mutilated condition, but that from the records made available, the two elder daughters were shown as occupants from 1972 to 1976 for survey nos. 12 and 14, through their guardian, i.e. their grandfather11. When the matter was argued before a Division Bench of this Court, Justice Sanjay Kishan Kaul, after stating these facts, held that a limited fiction has been created by Section 11 of the 1961 Act, as a result of which, if a partition deed is prior to the cut-off date, it cannot be ignored under Section 11. The learned Judge also held that the States cross- objections being allowed in the absence of the two elder daughters was fatal, as they were both necessary parties to the proceedings. The learned Judge then went into the unmarried daughters claims in HUF property and held:38. The legal view, thus, is very clear:a. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself12. The learned Judge went on to further observe that a provision for an unmarried daughter in a partition deed may partake the nature of a gift, and then concluded:45. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained46. The impugned orders of the appellate authority, the learned single Judge and the Division Bench are, thus, liable to be set aside and the view taken by the SDO, restored, qua the lands located in Survey Nos. 12 & 14 of Babhulgaon, giving rights to the two elder daughters, who are the appellants in the present proceedings13. K.M. Joseph, J. differed with Justice Kaul. According to the learned Judge, the questions that would arise for consideration by the Court are as follows:114. The following questions would arise for consideration by the Court:1. Whether the authorities under the Act have the power to find that the partition entered into before26.9.1970, was sham or collusive and thereby ignore the same?2. Notwithstanding the registered partition dated 31.01.1970, whether the property allotted to the elder daughters of Shri Vithaldas is liable to be included in the account of the family unit?3. What is the effect of the cross-objections of the State being allowed in the absence of elder daughters, in the appeal before the Tribunal?After setting out the provisions of the Act, the learned Judge concluded as follows:130. Thus, it can be concluded as follows:i. A transfer or a partition entered into before 26.09.1970, if it is not genuine and is collusive or is a sham transaction, can, in a given case, on materials being present, be found to be so by the Authority under the Act;ii. What is contemplated under Sections 10 and 11 of the Act read with Section 8, undoubtedly, is a transfer as defined in Section 8, being a genuine transaction. A fraudulent transaction or a sham transaction if entered into before 26.09.1970, would incur the wrath of Section (3), and a farce of a partition likewise, bringing about a mock division of property among the sharers, would also incur wrath of Section (3) of the Act. No doubt, even if the transaction is a sham transaction, be it a transfer or a partition, needless to say, it would incur the wrath of Sections 10 and 11 and it would not be necessary to justify the invalidity with any materials if entered into or effected after 26.09.1970iii. It does not mean that a transaction which is entered into, particularly after the Act came into force, be it a transfer or a partition, and if there are materials and circumstances brought out, which persuades Authorities to hold that it is collusive or a sham transaction and the property did not change the hands, the property would not be liable to be treated as held by the previous owner as on the commencement day and included in the account despite the purported transfer or partition14. Having concluded thus, the learned Judge then went on to declare that the partition deed, being unnatural, was sham; that coparcenary property alone is partible, and stated that the question as to whether or not a gift could have been validly made by Vithaldas to his elder daughters cannot be gone into, as no such case had been set up. Finally, the learned Judge held that it was of no moment that cross- objections of the state were allowed without making the two elder daughters parties to the appeal before the appellate tribunal, and then concluded that the appeal should stand dismissed.

Court's reasoning:
19. The legislation in question is a beneficial piece of legislation and, indeed, must be given the widest amplitude, the object being to distribute land among the landless. The preamble quoted aforesaid sets forth the object of the said Act. But, it is equally true that in giving wider amplitude to such legislation, it cannot be that the Court interprets the words of the statute beyond its plain reading reflecting the intent of the legislation. A preamble has its limitations insofar as being treated as an aid for the interpretation of a statute. It cannot restrict or enlarge the provisions of the Act.(Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79 ; State of West Bengal v. Union of India AIR 1963 SC 1241 ) Thus, the provisions have to be read, to see whether there is any ambiguity, requiring any further aid for construction of those sections, or whether they are explicit and clear in their meaning.(The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).)20. On a reading of the provisions of Chapter III, including Sections 8, 10 & 11 of the said Act, there is no ambiguity as would require any aid to construct the meaning of those Sections21. The commencement date would be the date from which the provisions would come into force. However, the amendment of 1972 created a deemed fiction by inserting the provision for setting at naught transactions that may have occurred on a prior date, i.e., from 26.9.1970. The result is that the transactions or transfers in this window of about five years would also be hit by the provisions of the said Act insofar as the determination of surplus land is concerned. The object was to prevent circumvention by dubious and indirect methods.(Gurdit Singh v State of Punjab (1974) 2 SCC 260 )This is the view also adopted by this Court in Gurdit Singh v. State of Punjab, but then this Court had gone on to observe that that was no reason why a construction should be put on the Section which its language could hardly bear. The legislation in question in Gurdit Singh v. State of Punjab was a similar one, The Pepsu Tenancy and Agricultural Lands Act, 1955. It would be difficult to accept and countenance a situation where, irrespective of limitations imposed in considering the past time period, any transaction could be so assailed. In the wisdom of the legislature, the window of five years is provided as sufficient for scrutinizing transactions which could be called dubious and indirect methods to evade the result of the said ActThus, once again, it is clearly stated that the lands transferred between the period 26.9.1970 and the commencement date (2.10.1975) is what is to be ignored in calculating the ceiling area22. The effect of the aforesaid provision is that any land, even if it is obtained by partition or other transfer, after the date of 26.9.1970 would be included for the purposes of calculation of surplus land, as land of the person who so transferred the same23. The legislature has also taken another caution. The second Explanation to sub-section (1) of Section 10 also provides that documents evidencing such transfer even before 26.9.1970 would not be exempted if they are not registered on or before that date, or even if they are registered after that date, they are not presented for registration on or before that date. The requirement is for the transfer document to be, both executed and presented for registration before the cut-off date. Thus, the possibility of evading the land ceiling limits by creating documents on a back date and subsequently producing them for registration is obviated24. Section 11 specifically talks about the partition deed in a similar manner and, thus, not only transfers whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, are included, even the avenue by way of a partition deed has been shut out, unless it has been executed prior to the cut-off date. There is no doubt that in the present case, the partition deed was executed before the cut-off date of 26.9.1970 and registered even prior to that date25. On behalf of the appellants, a number of judgments have been referred to, on how a deemed fiction should be construed. Thus, a legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603 . There are a number of judgments referred to in the context of taxing statutes, but then the rules of interpretation of taxing statutes, to be construed strictly, would be different and there is no purpose in referring to these judicial pronouncements. In the context of the Kerala Land Reforms Act, 1964, the issue of legal fiction was, once again, examined Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 . The same proposition was, once again, reiterated while observing that a legal fiction is not to be extended beyond the purpose for which it is created, and that it cannot be extended by importing another fiction. In the context of Section 4A of that Act, it was held to be circumscribed by express words – a mortgagee in possession was stated to be one who, for a continuous period of not less than 50 years immediately preceding the commencement of that Section held that capacity. The words immediately preceding the commencement were required to be given their ordinary and full meaning as reflecting the legislative intent and thus, only such type of cases where a mortgagee was in possession, immediately preceding the commencement of the Section, was extendable for a period of 50 years in the past alone. It was further observed as under:….However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4-A such fiction can arise only when the express language of the section laying down the conditions precedent for raising of such a fiction is complied with by the mortgagee-in-possession concerned seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature26. This judgment has found support in a subsequent judgment of this Court in Raj Kumar Johri v. State of M.P . (2002) 3 SCC 732 Thus, the aforesaid being the manner of interpreting a provision for deeming fiction, the relevant dates provided, of 26.9.1970 and 2.10.1975, giving a window of five years for the State to take action and prevent any dubious transaction during this period of time, cannot be expanded to an unlimited prior period of time27. This Court, in Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292  while dealing with the very statute has opined that the cut-off date would be sacrosanct. The factual contours dealt with partition before the cut-off date, as also sale of land. Once the cut-off date is provided, it was observed that they fell completely outside the ambit of the provisions of the Act and, thus, the High Court would not be justified in presuming that the transfers made were either collusive or fraudulent28. The order passed by the competent authority, being the SDO, insofar as the two elder daughters are concerned, held in their favour as far as the lands vested in them, in pursuance of the Partition Deed. There was, thus, no occasion for them to file an appeal, nor did they so file an appeal. Other members of the family, who filed the appeal, did not implead them as parties. Once again, naturally so, as they would not be the interested parties, or even pro forma parties in that behalf. However, once the State decided to file cross-objections and, in that, impugned even that portion of the order of the SDO which held in favour of the two elder daughters, there is no hesitation in stating that they were necessary parties to those proceedings. It is no answer to say that since the effect of the land ceiling would be to restrict the area of their father, late Vithaldas, it is for Vithaldas to see how he can benefit his daughters. This fundamental defect cannot be cured in the subsequent proceedings, as the right of appeal is a statutory right and an important one. This aforesaid view is reinforced by a catena of judicial pronouncements. It has been held that the Code of Civil Procedure, 1908 does not contemplate filing of cross-objections against a party who is not a party to the appealRajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 . In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 . The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) . Thus, unqualified imprimatur can be lent to this view29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters30. It has already been observed that non-impleadment of the two elder daughters would be fatal to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated36. The legal view, thus, is verya. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision was made for the marriage of the daughters. In fact, the provision is for education and marriage purposes. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. It was sustainable in law then, and it is more than just merely sustainable in law now. Thus, there is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4,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 Vithaldas39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the sameIn a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction40. 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 satisfied41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained