Vithaldas Jagannath Khatri v. State of Maharashtra Revenue and Forest Department

Section 18 is important and is set out hereunder:

7. Appeals are provided against the Collector’s orders and awards under Section 33 of the 1961 Act. This again is an important provision and is set out hereunder:

8. 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 date.

9. 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 dismissed by 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 law.

10. 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 intracourt 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 grandfather.

11. 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 State’s 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:

12. 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:

13. 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:

After setting out the provisions of the Act, the learned Judge concluded as follows:

14. 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 crossobjections 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.

15. Shri Krishnan Venugopal, learned Senior Advocate appearing on behalf of the Appellants largely relied upon the judgment delivered by Justice Sanjay Kishan Kaul and in particular, strongly relied upon Gurdit Singh v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. State of Maharashtra (1980) 2 SCC 292. On the other hand, Shri Rahul Chitnis, appearing for the State, largely read from Justice Joseph’s judgment and supported it.

16. On a conspectus of the provisions of the 1961 Act that have been set out hereinabove, what becomes clear is that transfers or partitions of land made in anticipation of or in order to avoid or defeat the 1972 Amending Act were to be ignored in calculating ceiling limits. This was so laid down by the Amending Act, 1975, which made 26.09.1970 the cut-off date after which such transfers became suspect. What is important to note is that the 1961 Act does not in any manner declare such transfers to be void. However, if the contrary is proved on the facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after the cut-off date, the person affected would be out of the clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what is important is the expression “shall accordingly be ignored”, which occurs in Section 11.

17. The scheme of the 1961 Act is that a person or a family unit has to submit returns by certain dates and extended dates that are mentioned in Sections 12 and 12-A of the 1961 Act. Section 13 is important in that where a person or member of a family unit either fails without reasonable cause to furnish a return, or furnishes a false return, he becomes liable to a penalty, which may extend to INR 100 or 500, as the case may be. A false return may be ignored by the Collector, requiring the person or family unit to submit a true and correct return complete in all particulars under Section 13(2), together with the penalty of INR 500. If thereafter, any such person or family unit fails to comply with the order within the time so granted, then, as a penalty for failure to furnish such return or a true and correct return complete in all particulars, the right, title and interest in the land held by him or the family unit as the case may be, in excess of the ceiling area, shall, subject to the provisions of Chapter 4, be forfeited to the State Government and vest in that Government. This Section gives a limited jurisdiction to the Collector to determine whether a true and correct return complete in all particulars has been given. Thus, a Collector would be well within his jurisdiction to state that a registered partition deed entered into after 26.09.1970 has been suppressed in the return furnished, as a result of which a penalty of INR 500 may be imposed, or excess land forfeited under Section 13(3). This jurisdiction is limited only to the factum of a partition deed having been suppressed from the return, and does not extend to conduct an enquiry as to whether a partition deed prior to 26.09.1970 is or is not a sham document. Also, the discretion vested in the Collector under Section 30 is at a stage anterior to the holding of an enquiry under Section 14, and the resultant declaration under Section 21.

18. By Section 14 of the 1961 Act, the Collector is then to hold an enquiry either suo motu or otherwise, whether or not a return has been filed, in respect of every person or a family unit holding land in excess of the ceiling area. In so doing, Section 18 states that the Collector must consider several matters including, under sub-clause (b), whether any land transferred between 26.09.1970 and the commencement date (which we have seen is 02.10.1975), or any land partitioned after the cut-off date should either be considered or ignored in calculating the ceiling area as provided in Sections 10 and 11 of the 1961 Act. If Section 18(a) to (k) are seen, the evidence adduced at the hearing to be given to the holder and other persons interested in the land, only goes to calculating the total area of the land, including land held by the holder between 26.09.1970 and 02.10.1975 and lands that have been acquired after 02.10.1975. All the details mentioned in Section 18 only speak of ignoring certain transfers or partitions between the cut-off date and the commencement date, and otherwise would only go to the calculation of lands held by persons, and then applying the drill of the ceiling provisions of the 1961 Act. To state that Section 18(l) is a catch-all provision by which the Collector can determine whether a particular transfer or partition is a sham transaction, even if entered into before the cut-off date, is to go beyond the jurisdiction conferred on the Collector by the 1961 Act. In point of fact, even the language of Section 18(l) makes it clear that “any other matter” is circumscribed by the following words: “for the purpose of calculating the ceiling area, and delimiting any surplus land.”

19. This becomes even clearer when the other provisions of the 1961 Act are looked at. Under Section 21, the Collector has to make a declaration as to entitlement of a person or family unit to hold within the ceiling area and area of land which is in excess of the ceiling area. Further, what is of importance is that Section 44B excludes pleaders from appearing on behalf of any party in any of the proceedings under the 1961 Act. This is for the reason that the Collector has to determine on the facts of each case, based on returns filed if any, as to what areas are to be excluded, and what areas of land are to be included so far as determination of ceiling of a person or family unit is concerned. If it were to be held that the Collector could go into a trial as to whether a particular partition deed is or is not sham, even though it is before the cut-off date, would have two effects that are not warranted in law first, it would extend the legal fiction that is limited to transfers and partitions made after the cut-off date; and second, if a period even before the cut-off date can be considered, it would render the cut-off date otiose, as then in all cases the Collector could go into whether a particular transfer or partition has been entered into to avoid the effect of the 1972 Amendment Act, which is an enquiry restricted only to transfers and partitions which take place on or after 26.09.1970 upto the commencement date. Also, if the Collector were to substitute himself as a Civil Court deciding a Civil Suit, it would be absolutely essential for a person or family unit to engage a pleader of his choice to argue all the ramifications that his case may have, both in fact and in law. In fact, a Civil Court alone would have the jurisdiction to decide a question as to whether a partition deed entered into before the cutoff date is or is not sham, which would involve a declaration that the partition be declared void. The 1961 Act therefore bars the jurisdiction of the Civil Court only insofar as transfers and partitions are entered into on or after 26.09.1970 and before the commencement date, and not to transfers and partitions that take place before the cut-off date.

20. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act is to be seen, it is clear that appeals are provided to the Maharashtra Revenue Tribunal against a declaration or part thereof made under Section 21 of the 1961 Act. The persons who would be aggrieved by such declarations can only be the person or family unit whose ceiling area is determined or the landlord to whom possession of land is to be restored or the right, title and interest of the person or family unit whose land is to be forfeited to the State Government. If at all a crossobjection can be taken by a respondent under Section 33(1A), it can only be a person or family unit or landlord spoken of in Section 21(1) of the 1961 Act. The State Government may perhaps file a crossobjection where it contends that land has wrongly not been forfeited to it. But such is not the case on the facts of this appeal. Thus, the State taking a cross objection on the facts of this case would itself be outside Section 33(1A). If at all the State can be said to be aggrieved by a declaration made under Section 21, a suo moto power of revision is given to the State Government under Section 45, which on the facts of a particular case may well be exercised.

21. This apart, once it is clear that the elder daughters are affected by virtue of the partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to the appeal so that they could have made arguments in favour of the legal validity of the partition deed. This opportunity being denied to them, as has been rightly held by Justice Kaul, is also fatal to the appellate authority’s order, which has therefore wrongly been upheld by the learned Single Judge and Division Bench of the Bombay High Court.

22. At this stage, it is important to consider some of the judgments of this Court under the 1961 Act. In Raghunath Laxman Wani and Ors. v. State of Maharashtra (1971) 3 SCC 391, a Special Leave Petition was entertained directly against the judgment and order passed by the Maharashtra Revenue Tribunal dated 02.09.1966, in proceedings held by the Deputy Collector under Section 14 of the 1961 Act in respect of lands held by the appellants therein. The Deputy Collector and the Tribunal concurrently found on fact that the appellants’ case of severance of status and partition of the family lands - partially in 1956, and then in 1960, was not acceptable. In the absence of any document regarding alleged severance of the family and partition, other factors when toted up rendered the appellants’ case of partition, first in 1956 and then in 1960, ‘doubtful’. Given these circumstances, this Court held that it “would be more than reluctant to interfere and upset such a finding” (see paragraph 14). The Court then examined the scheme of the 1961 Act in paragraphs 15 to 17, and held that the ceiling area is to be ascertained with reference to the state of affairs existing only on the ‘appointed date’. In this view, the Revenue Tribunal was held to be correct in not taking into consideration three children born in the family after the appointed date while determining the ceiling area to which the appellants’ family was entitled. This case turned largely on its facts, and was in any case decided before the introduction of Section 44-B to the 1961 Act in 1976 - which forbade pleaders from arguing cases before the authorities under the 1961 Act.

23. In Jugal Kishore v. State of Maharashtra (1989) Supp. (1) SCC 589, the question before this Court was whether in view of Section 100(2) of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958 (hereinafter referred to as the “Bombay Tenancy Act”), the Tenancy Tehsildar had exclusive jurisdiction to decide the issue of tenancy. In holding that the authorities under the 1961 Act would have to determine the land holdings of the petitioner therein, this Court held:

24. In State of Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326, this Court was concerned with the operation and reach of Section 45 of the 1961 Act, which dealt with the revisional power of the State Government. On the facts of Rattanlal (supra), the Additional Commissioner had issued a show cause notice to the respondents therein, inter alia, for the reason that the respondent did not disclose the lands or his half share in a particular declaration, having suppressed the same. On hearing the respondent, and for reasons recorded in his order dated 09.06.1980, he remitted the case to the primary Tribunal to redetermine surplus land. The High Court held that once an appeal was preferred by the declarant under the 1961 Act, and an order made thereon, the Commissioner or State Government is devoid of jurisdiction to determine the ceiling area. The Supreme Court set aside the judgment of the High Court, and held that it was perfectly within the jurisdiction of the Additional Commissioner under Section 45 of the 1961 Act, suo moto, to call for the records of a case and thereafter to decide it and pass such order thereon as it deems fit under Section 45(2) of the 1961 Act. This case again is far removed from the facts of the present case, concerning itself with the suo moto powers exercisable under Section 45 of the 1961 Act.

25. In Bhupendra Singh v. State of Maharashtra (1996) 1 SCC 277, this Court, while dealing with proceedings under the 1961 Act, held:

26. Shri Krishnan Venugopal strongly relied on the observations in Gurdit Singh (supra). This case dealt with Section 32-DD which was introduced into ‘The Pepsu Tenancy and Agricultural Lands Act, 1955’ with retrospective effect from 1956. This Section states as follows:

27. This Court repelled an argument enlarging the scope of Section 32- DD, which was based on the object sought to be achieved by the Section in the following terms:

28. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions “transfer” and “partition” occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word “genuine” is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be “ignored”. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area.

29. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This case also dealt with 1961 Act, the cut-off date in that case being 04.08.1959. As both the transfers in the aforesaid case were prior to 04.08.1959, this Court held that the High Court was not justified in holding that the said transfers were either collusive or fraudulent. This Court held:

30. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area.

31. Regard being had to our finding that the Collector’s jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law.

32. We are, therefore, of the view that the appeal deserves to be allowed, and the impugned judgment of the Bombay High Court dated 27.11.2007 set aside for the reasons given by us. The judgment of the Sub-Divisional Officer dated 07.05.1984 stands restored, as a result. …………………..………………J. (R. F. Nariman) ……………..……………………J. (S. Ravindra Bhat) ……………..……………………J. (V. Ramasubramanian) New Delhi. 19th February, 2020.