VITHALDAS JAGANNATH KHATRI (D) THROUGH SHAKUNTALA ALIAS SUSHMA & ORS. v. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS.

G PER SANJAY KISHAN KAUL, J.

1Copy pinpoint1. Deemed Fiction: 1.1 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. In giving wider amplitude to such legislation, the Court should not

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A Bengal Immunity Co Ltd. v. State of Bihar : [1955] 2 SCR 603 ; Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 : [1996] 5 Suppl. SCR 813 – relied on. 1.3 A legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field. It was held in Mancheri case, “a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature.” Thus, this 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 time. [Paras 25, 26] [940-B-G; 941-A] Raj Kumar Johri v. State of M.P. (2002) 3 SCC 732 : D [2002] 2 SCR 512 ; Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292 : [1980] 2 SCR 1048 – relied on.

2Copy pinpoint2. The appellate authority allowing the cross-objections: E The order was 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. F 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, 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, VJK, it is for VJK 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 view is reinforced by a catena of judicial pronouncements. It has been held that the Code of Civil

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Procedure, 1908 does not contemplate filing of cross-objections against a party who is not a party to the appeal. 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. 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. Thus, for this reason also the cross- objection could not have disturbed the status of the two elder daughters. [Paras 28 and 29] [941-D-G; 942-A-B] Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) : C [1963] Suppl. SCR 676 – relied on. Rajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 ; Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 – approved.

3Copy pinpoint3. Unmarried daughters’ claim in HUF property: D

3.1 It *Guramma Bhratar case, the acceptability of gifting of a reasonable part of the ancestral property, in favour of daughters, for marriage purposes, was held to be valid, and in accordance with Mitakshara law. Thus, legal view is very clear that a provision for marriage of unmarried daughters can be made out of ancestral property. Such provision can be made before, at the time, or even after the marriage. 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. This change was brought about in Maharashtra in 1994, itself. [Para 33, 36] [945- F; 946-E-G] Pugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321 ; R. Kuppayee v. Raja Gounder (2004) G 1 SCC 295 : [2003] 6 Suppl. SCR 605 ; *Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa & Ors. [1964] 4 SCR 497 – relied on. Annamalai Ammal v. Sundarathammal & Ors. AIR 1953 Mad 404 – approved. H

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A 3.2 In the instant case, by way of Partition Deed, a provision was made for education and marriage of daughters. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. 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 law. Further, 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. [Paras 37, 38] [946-H; 947-A-C] 3.3 None of the members of the family ever sought to assail or challenge the deed. It was with the consensus of the family, apart from the legality of the same. 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 transaction. In the given facts of the case it is not in dispute that the Deed was a registered document. E 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. Thus, 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 F 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 obligation. These findings, thus, lead to the conclusion that view of the SDO regarding the land of the two elder daughters, is the correct view. G [Paras 39-42] [948-C; 949-B-E] Made Gouda v. Chenne Gowda AIR 1925 Mad 1174 ; Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 ; Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 : [1996] 3 SCR 1100 – H relied on.

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Ponnu & Anr. v. Taluk Land Board, Chittur & Ors., A (1981) KLT 780 – approved. Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79 : [ 2007] 2 SCR 990; State of West Bengal v. Union of India AIR 1963 SC 1241: [1964] SCR 371 – referred to. B

PER K. M. JOSEPH, J. (Dissenting)

1. POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION PRIOR TO 26.09.1970 1.1 The word “transfer” and “partition” as employed in C Section 10 and 11 of the Act must be understood as meaning a transfer and a partition which is genuine. In other words, a transfer, be it by any means, as defined under Section 8, must actually result in the divesting of rights of the previous owner and vesting of rights in the transferee. The legislative intention was that such transfers, which otherwise would pass muster as genuine transactions and, therefore, would have the effect of defeating the object of the Act as contained in particular in Section 3 and the Chapter relating to distribution of surplus land should be rendered ineffective. The same is the position in respect of the partition under Section 11 of the Act. Even if there is a genuine partition by which shares are in fact allotted to the parties and the parties enjoy the properties as separate owners of what was previously joint ownership, their rights will be subsumed and overwhelmed by the laudable object underlying Section 3 of the Act and the prohibition would have full sway. F [Paras 54] [973-D-G] 1.2 Apart from clauses (a) and (b) of Section 18 of the Act, the Collector is duty bound to ascertain other matters. Clause (c) of Section 18 of the Act specifically mandates that the Officer must find out what is the total area of land held by the holder G on the commencement date. Clause (1) of Section 18 of the Act also contemplates that the Collector may take into consideration any other matter which in his opinion is necessary for calculating the ceiling area inter alia. Section 3 of the Act read in conjunction with Section 18(c) and (l), inter alia, establishes that the Collector H

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A has power and it becomes his duty, in fact, to ascertain what is the area held on the appointed day, viz., 02.10.1975. The Legislature has defined the words “to hold” means, “to be lawfully in actual possession of land as owner or as tenant”. Word “owner” is further defined to mean, “in relation to any land includes a person holding the land as occupant, superior holder as defined in the Code, lessee of Government, as it is commonly understood”. If the person is holding the land as occupant, he would be an owner. Therefore, if a person is in possession as an occupant as on the appointed day, the extent of land so held by him, would be considered for the purpose of calculating the ceiling limit. Equally, if the person is in possession as lessee of the Government, he would incur the wrath of Section 3 of the Act, should he have land in excess of the ceiling limit inclusive of the land which he holds as lessee of the Government. [Para 55] [973-H; 974-A-E] D 1.3 The Collector, therefore, is duty bound in the course of the inquiry to enquire and ascertain as to what exactly is the holding (as defined in the Act) as on the commencement day. In the matter of gleaning the meaning of a Statute and demystifying the words of a Statute and discovering the intention of the E legislation, the court must presume that the Legislature has taken into consideration the felt necessities of the times. It will further assume that the Legislature was aware of the law as it exists and not begin with assumption that the Legislature is ignorant of the opinions expressed by the courts on points of law. [Para 56] [974-F-H] F Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras AIR 1957 SC 49 : [1956] SCR 691 ; Kalwa Devadattam and others v. The Union of India and others AIR 1964 SC 880 : [1964] SCR 191 G – referred to. 2.1 In a sham transaction, be it a sale or a partition, though it has all the trappings of a transfer or a partition and it may be registered as such, in effect, the transferor continues to be the owner. The person who was the previous owner, would, in the case of the partition which is sham, continue to be the owner. A

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clever camouflage or a document ingenuously disguised as a sale or a partition, cannot be permitted to defeat the intention of the Legislature. If the surrounding circumstances and the actual reality behind the transaction is objectively probed and it is established that the transferor or the previous owner, as the case may be, in the case of a transfer or a partition, respectively, continued to hold the property as such on the appointed day, it must be ignored. [Para 59] [976-G-H; 977-A] 2.2 The interpretation that the Legislature knows the existing law and that the Legislature does not waste words and further that an interpretation which, while on the one hand, furthers the object of the Statute, and equally importantly, is one, which the plain language of the Statute is capable of bearing, would persuade this Court to hold that the Collector, when in the course of an inquiry under Section 18 of the Act, has before it, materials to show that an ostensible transfer or a partition is nothing but a sham and a person or a member of the family continues to hold the land as on the commencement day, it would be well within his powers to act as per the mandate of the Act and include the land for the purpose of calculating the ceiling limit. [Para 60] [977-C-E] E 2.3 The Collector is endowed with the powers of the civil court in the matter of both summoning and enforcing attendance of any person. The person summoned can be examined on oath. He has power also to compel production of any document. For the purpose of determining whether a document is a collusive, a fraudulent or a sham transaction, it would indeed be argued that the Authority to so decide must be in a position to consider relevant evidence in the form of deposition of witnesses as also evaluate documentary evidence which may throw light on the matter. Such powers are expressly conferred on the Collector and the powers are the same as that which the civil court enjoys in this regard. [Para 61] [977-G-H; 978-A-B] 3.1 Another argument raised by the appellants is that the partition cannot be impeached on the ground that properties are allotted to the daughters when under the prevalent law the daughters did not have any right to a share. If at all, anybody H

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A could impeach the said partition, it would be only the affected parties, viz., the persons who are legitimately entitled to a share in partition. It is one thing to say that a sharer whose shares may be affected, could question it in the appropriate forum. It is, however, a far cry from maintaining that the Competent B Authority under the Act, when it has before it, evidence which points to the transaction being a sham or collusive affair, is disabled from finding it to be so. If one proceeds on the basis that the transaction was sham, the persons who would benefit from the sham transaction would be the other sharers. In the facts of this case, viz., the father, the wife and the son. This is for the reason that it is implicit in the finding that in the transaction of sham that there is no effective transfer. The properties would continue to be held by the father. The daughters would not get any effective share. The other sharers, who would ordinarily have challenged the transaction, viz., the wife and the son, would be themselves beneficiaries under the transaction and they cannot be expected to challenge the transaction. Acceptance of the argument of the appellants would result in parties defeating the Act by setting up a pretense and wearing a cloak and this cannot be permitted. [Paras 66-67] [979-G; 980-B-E] E 3.2 Thus, 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; What is contemplated under Sections 10 and 11 of the Act read with F 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, 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 26.09.1970. 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

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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 ow ner as on the commencement day and included in the account despite the purported transfer or partition. [Para 68] [980-E-H; 981-A-B] B

4Copy pinpoint4. WHETHER THE PARTITION ALLOTTING SHARES TO THE DAUGHTERS WAS UNNATURAL AND SHAM 4.1 The Partition was unnatural for the reason that under the extant Hindu Law, daughters were not entitled to a share. Another reason to hold the partition unnatural is that the wife C of VJK was entitled in law upon a partition to a share but she is not given any share. The further finding is that VJK continued to be in effective cultivation of the land, and in this regard, the record of rights was relied upon. [Para 69] [981-E; 982-E-F] 4.2 Under the extant law, women were not co-parceners. D A wife could not demand a partition. Women could not enforce partition. This was a right which was conferred upon the males. Also, partition can be of property which is previously held jointly. 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. [Paras 72-73, 75, 77] [984-G; 985-B-G; 986-G] E

State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others AIR 1985 SC 716 : [1985] 3 SCR 358 – referred to. Mayne’s Hindu law and usage – referred to F

5Copy pinpoint5. THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER 5.1 A Joint Hindu Family would consist of a large number of persons. A Joint Hindu Family could, however, be understood to be a narrower body of individuals that constitutes a G coparcenary. The coparceners, at the relevant point of time, consisted of males, viz., son, grandson and the great grandson. They were persons who were entitled to demand partition. A partition involves separate enjoyment and what was previously jointly held property. A wife of a Hindu while not a coparcener H

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A was one such person who was entitled to a share in the partition. But even when a partition took place, the daughter of a person was not a person who was entitled to any share.[Para 80] [991- D-E] Annivillah Sundaramya v. Cherla Seethamma and B others 1911 (21) MLJ 695 ; Pugaria Vettoramal and another v. Vettor Gounder, Minor, by his next friend and mother Poochammal and another 1912 (22) MLJ 321 – approved. Annamalai Ammal v. Sundarathammal and Others AIR C 1953 Madras 404 ; Guramma Bhratar Chanbasappa Deshmukh and others v. Mallappa Chanbasappa and another AIR 1964 SC 510 : [1964] SCR 497 – referred to. 5.2 The terms of the partition deed have been set out. D The first thing that is a striking feature in the partition deed is the exclusion of the wife of VJK. No doubt, she was gifted 60 and odd acres by gift deed dated 20.1.1955. However, when the family partition took place, her right may continue. If the wife under the Hindu Law, when a partition is effected, was entitled to a share, the fact that she is not given any share, does raise a E suspicion. The father got 32 and odd acres. The son is given 30 acres. Most importantly the daughters who had no right are seen given a total of 45 acres and 35 acres. The daughters together got 1½ times the share of the son. Any property, which went to the wife, would have been liable to be included in the account of the family for the purpose of determining the ceiling limit. It is no doubt true that there was no concept of family unit at that time but family as a person was subject to the ceiling limit. The elder daughters were 14 years and 11 years, respectively. The son, in fact, was merely 4 years old and the youngest daughter 8 years. The statement in the partition deed that the parties have been using their properties jointly itself, is suspect as none of the daughters had any legal right in the properties. Thus, the circumstances which stand against the document namely the partition being a genuine transaction are: The age of the children being 4, 8, 11 and 14 years; the wife of the VJK not being given any share; the children being represented by their

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grandfather as a guardian when the parents are alive. Allotment A of shares to the daughters when daughters did not have any right to share in the partition of a Hindu Undivided Family at that point of time. Out of a total of 106 acres, 45 acres and 35 acres can by no stretch of imagination be treated as ‘small’ or ‘reasonable’. While it may be true that after 1994, a Hindu daughter in B Maharashtra had been recognized as a coparcener by Section 29A of the Hindu Succession Act, 1956 and entitled to a share as such, such right did not exist in 1970 when the partition was entered into. [Para 83] [993-D-F-H; 994-A-E]

6Copy pinpoint6. No doubt, it was open to a Hindu to make a gift of a small portion or a reasonable portion to his daughter. In fact, there is a line of thought that though styled as partition, it could be held to be a gift in the absence of a pre-existing right. The question in this case is not whether a gift could have been validly made or not by VJK to his elder daughters. No case of it being a gift is set up before the Tribunal or the High Court nor before this Court. Definition of ‘member of family’ under the Act included dependent daughters. There is no case that the property was the separate property of VJK. There can no dispute that the property was an ancestral property which he acquired in terms of the earlier partition between him and his father. [Paras 84-85, 88] [994-E-H; 996-D] E

Potti Lakshmi Perumallu v. Potti Krishnavenamma AIR 1965 SC 825 : [1965] SCR 26 ; Made Couda and Ors. v. Chenne Gouda and Ors. AIR 1925 Madras 1174 ; Ponnu and another v. Taluk Land Board, Chittur and others (1981) KLT 780 – referred to. F

7.1 The Tribunal noted that the elder daughters were 14 and 12½ years of age on the date of the partition in 1970. VJK continued to be the owner as the title has not passed by a legally valid instrument. It is stated further that the name of the son is recorded in the Crop Register for the period 1972 to 1975 as G occupant. The eldest daughter became major on 03.11.1973, still she is shown as a minor and her father is shown as occupant on her behalf. For the year 1974-1975, the next feature to be noticed is eldest daughter is to shown along with her father as an occupant. However, she is so shown through her guardian H

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A who is shown as her grandfather. For the year 1975-1976, she is shown as occupant through guardian grandfather. She had much earlier become major. The name of VJK which was there in the earlier year is seen removed. [Paras 92, 95, 96] [997-D- E; 999-B; 1000-B] B 7.2 It is undoubtedly true that the appeal before the Tribunal was filed by VJK, his wife, son and youngest daughter. There was no occasion for the elder daughters to challenge the order passed as the properties allotted to them in the partition deed dated 31.1.1970 stood excluded. It is in such an appeal that the Government filed a cross objection. Undoubtedly, the cross objection was maintainable both under the express provisions of Section 33 of the Act as also under Order 41 Rule 22 CPC which was also made applicable under Section 33 of the Act. In law it is true that if a cross objection is maintained, the person affected by an order in the cross objection must be on the party array. If he is not on the party array, it is incumbent upon the respondent in the appeal who seeks to maintain a cross objection against a non-party to implead such person as a party. The order of the Tribunal was challenged by VJK and his wife only by filing a writ petition before the High Court. Appellants 3 and 4 in the appeal before the Tribunal were made respondents in such writ petition. It is true that elder daughters were also made respondents. VJK and his wife did not prosecute the writ petition also as representatives of the elder daughters. The finding regarding the partition deed and gift deed by the Tribunal impacted both VJK and his wife on the one hand and also the elders daughters on the other hand [the latter as regards the partition deed]. The Ceiling Account of the family unit was determined taking into consideration the 31 acres allotted to the elder daughters. VJK would been affected in two different capacities. One as head of the family unit and the other as father of the elder daughters. [Paras 99-101] [1000-F-H; 1001-A-D] 8.1 Under the Hindu Minority and Guardianship Act, 1956, Section 6 declares who is to be the natural guardian of a Hindu minor. A perusal of Section 6 of the Hindu Minority and Guardianship Act would show that in the case of unmarried girl, the father and after the father the mother would be the natural

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guardian. This is in respect of both the person of the minor and the property of the minor. When the writ petition was filed, the eldest daughter was clearly major and married. The second daughter was also a major. The State would contend the partition dated 31.1.1970 was a sham and VJK continued to hold the property. It is not unnatural that he would challenge the inclusion of such property in the ceiling account as property of the family unit on the basis that he continued to be the holder. Allowing the cross objection by the Tribunal if viewed in this perspective did affect VJK. He could indeed question the inclusion of the lands allotted to his elder daughters in the account of the family unit. VJK could support the partition deed but he could not challenge the order of the Tribunal allowing the cross objection on the ground that the cross objection was allowed without giving an opportunity to his daughters. Undoubtedly, VJK was the first appellant before the Tribunal. He along with other appellants therein were heard by the Tribunal as parties before allowing the cross objection in relation to the partition. The ground that the cross objection was allowed without an opportunity to his elder daughters was not available to VJK or his wife. Again, the writ petition has been filed only by VJK and his wife. Though the elder daughters were majors, they did not challenge the order of the Tribunal. Maybe it is true that they were respondents in the writ petition filed by their parents. Even after the Single Judge dismissed the writ petition, upholding the order of the Tribunal, no appeal was filed by the elder daughters. [Paras 102-104] [1001-D; 1002-B-G] F 8.2 If indeed the elder daughters had acquired possession and rights under the partition deed in respect of an extent of more than 31 and odd acres of land in between themselves, it passes one’s comprehension that they would not challenge the order which purported to deprive them of their rights. This conduct on the part of the parties would appear to lend G assurance to the case of the State that the partition was not a genuine transaction but a sham and the property continued with VJK in which case it would be property held by VJK even on the commencement date namely 2.10.1975 rendering it liable to be included in the account of the family unit. He accordingly H

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A challenged the order of the Tribunal along with his wife who was separately aggrieved by the inclusion of the property found gifted to her. [Para 105] [1002-H; 1003-A]

9. A writ petition is not a partition suit. In a partition suit, apart from the plaintiff, the defendants also stood in the shoes of a plaintiff. VJK passed away even when the appeal was pending in the High Court. Appeal was filed before this Court originally as a special leave petition. In the Special Leave Petition, it is shown VJK (now deceased) through LRs and the petitioners names are shown. The elder daughters were petitioner No.1 and 2 in the special leave petition and upon leave being granted, they are in the party array as appellants 1 and 2. But they are before this Court only as legal representatives of VJK who instituted the writ petition and appeal along with his wife. Contentions which were available to VJK alone, would therefore be available to them. [Para 106] [1003-C-F] D Jagdish Chander Chatterjee and Others v. Shri Sri Kishan and another (1972) 2 SCC 461 : [1973] 1 SCR 850 ; Taherakhatoon (D) By Lrs. v. Salambin Mohammad (1999) 2 SCC 635 : [1992] 2 SCR 210 – relied on. E Bhagwandas Heda and others v. State of Maharashtra and others 1983 Mh. L.J. 825 ; Uttar Chand (Dead) by Lrs. v. State of Maharashtra and another AIR 1980 SC 806 : [1980] 2 SCR 1048 ; Kundomal Ganga Ram v. Topamal Chotamal AIR 1953 Allahabd 710 ; F Malireddi Venkatapathi and others v. Malireddi Veerayya and others AIR 1943 Madras 609 ; Bihar Immunity Company Ltd. v. State of Bihar and Others [1955] 2 SCR 603 ; Commissioner of Income-Tax v. Bombay City I, Bombay v. Amarchand N. Shroff by his heirs and legal Representatives AIR 1963 SC 1448 : G [1963] Suppl. SCR 699 ; Commissioner of Income Tax, Kanpur v. Mother India Refrigeration Industries (P)Ltd. (1985) 4 SCC 1 : [1985] 2 Suppl. SCR 556; Bijender Singh v. State of Haryana and another (2005) 3 SCC 685 : [2005] 2 SCR 1131; Commissioner of H Income-Tax, Delhi v. S. Teja Singh AIR 1959 SC 352

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: [1959] Suppl. SCR 394 ; Mancheri Puthusseri Ahmed A and Others v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 : [1996] 5 Suppl. SCR 813 – referred to. Case Law Reference In the Judgement of Sanjay Kishan Kaul, J B [2007] 2 SCR 990 referred to Para 19 [1964] SCR 371 referred to Para 19 [1974] 3 SCR 896 relied on Para 21 [1955] 2 SCR 603 relied on Para 21 [1996] 5 Suppl. SCR 813 relied on Para 25 C [2002] 2 SCR 512 relied on Para 26 [1980] 2 SCR1048 relied on Para 27 [1963] Suppl. SCR 676 relied on Para 28 [1964] 4 SCR 497 relied on Para 28 D [2003] 6 Suppl. SCR 605 relied on Para 32 [1996] 3 SCR 1100 relied on Para 39 In the Judgement of K.M JOSEPH, J [1980] 2 SCR 1048 referred to Para 20 E [1955] 2 SCR 603 referred to Para 25 [1963] Suppl. SCR 699 referred to Para 25 [1985] 2 Suppl. SCR 556 referred to Para 25 [2005] 2 SCR 1131 referred to Para 25 F [1959] Suppl. SCR 39 referred to Para 28 [1996] 5 Suppl. SCR 813 referred to Para 28 [1956] SCR 691 referred to Para 57 [1964] SCR 191 referred to Para 58 [1985] 3 SCR 358 referred to Para 72 G [1964] SCR 497 referred to Para 79 [1965] SCR 26 referred to Para 85 [1973] 1 SCR 850 relied on Para 106 [1992] 2 SCR 210 relied on Para 106 H

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A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6006 of 2009. From the Judgment and Order dated 27.11.2007 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in LPA No. 3 of 1991 B Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta, Ajay Kumar Talesara, Advs. for the Appellants. Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Nishant Sharma, Ms. Deepa Kulkarni, Advs. for the Respondents. The Judgments/Order of the Court were delivered/passed by C SANJAY KISHAN KAUL, J.

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 aspects, most importantly the aspect of plugging loopholes, whereby 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: “An Act to impose a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling; to provide that the lands taken over from undertakings and the integrity of which is maintained in compact blocks, for ensuring the full and efficient use of the land for agriculture and its efficient management through corporations (including a G company) owned or controlled by the State, be granted to such corporations or company; and for matters connected with the purposes aforesaid”

2. Chapter III of the said Act made provisions restricting transfers and acquisitions and the consequences of contraventions. The relevant H Sections falling in the Chapter are reproduced hereunder:

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 931 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

“Section 8 - Restriction on transfer A Where a person, or as the case may be, a family unit holds land in excess of the ceiling area on or after the commencement date, such person, or as the case may be, any member of the family unit shall not, on and after that date, transfer any land, until the land in excess of the ceiling area is determined under this Act. B Explanation :- In this section, “transfer” means transfer, 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, whether by act of parties made inter vivos or by decree or order of a C court, tribunal or authority (except where such decree or order is passed in a proceeding which is instituted in such Court, Tribunal or before such authority before the 26th day of September, 1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for D a public purpose under any law for the time being in force.” .... .... .... .... Section 10 - Consequences of certain transfers and acquisitions of land E (1) If - (a) any person or a member of a family unit, after the 26th day of September, 1970 but before the commencement date, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, or F (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. If by reason of such transfer, the holding of a person, or as the case may be, of the family unit is less than the area so calculated H

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A to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land; and out of the land so transferred and in possession of the transferee [unless such land is liable to forfeiture under the provisions of sub-section (3)], land to the extent of such deficiency shall, subject to rules made in that behalf, also be B deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact be in excess of the ceiling area. Explanation :- For the purposes of clause (a) ‘transfer’ has the same meaning as in section 8. C All transfers made after the 26th day of September, 1970 but before the commencement date, 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. Explanation :- For the purposes of this sub-section, a transfer shall not be regarded as made on or before 26th September, 1970 if the document evidencing the transfer is not registered on or before that date or where it is registered after that date, it is not presented for registration on or before the said date. (2) If any land is possessed on or after the commencement date by a person, or as the case may be, a family unit in excess of the ceiling area, or if as a result of acquisition (by testamentary disposition, or devolution on death, or by operation of law) of any land on or after that date, the total area of land held by any person, or as the case may be, a family unit, exceeds the ceiling area, the land so in excess shall be surplus land. F (3) Where land is acquired in wilful contravention of section 9, then as a penalty therefor, the right, title and interest of the person, or as the case may be, the family unit or any member thereof in the land so acquired or obtained shall, subject to the provisions of Chapter IV, be forfeited, and shall vest without any further assurance in the State Government: Provided that, where such land is burdened with an encumbrance, the Collector may, after holding such inquiry as he thinks fit and after hearing the holder and the person in whose favour the encumbrance is made by him, direct that the right, title and interest of the holder in some other land of the holder equal in

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 933 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

extent to the land acquired in wilful contravention of section 9, A shall be forfeited to Government. Section 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 provisions of section 3. Explanation :- For the purposes of this section, ‘partition’ means any division of land by act of parties made inter vivos, and includes also partition made by a decree or order of a court, tribunal or authority.”

3. A reading of the aforesaid provisions would show that a fiction is sought to be created (whereby a transfer made from a prior date, of 26.9.1970, is sought to be nullified, other than by way of a bona fide transaction) by the Amendment Act of 1972, by providing for the cut- E off date of 26.9.1970 qua any transactions or transfers, transactions after which date being deemed to be transfers in anticipation, or in order to defeat the object of the Amendment Act of 1972. It may also be noticed that it is only by the Amendment Act of 1975 that the commencement date was specified as 2.10.1975. Thus, while normally all the relevant provisions of the legislation, having come into force from 2.10.1975, the provisions would have applied from that date, i.e. 2.10.1975, a legal fiction was created to apply the provisions retrospectively, from 26.9.1970. It does appear from the submissions that as the legislation appears to have been debated and been in contemplation for some time, the apprehension of transactions during this window of time, in anticipation of the amendments, was taken care of by the aforesaid provisions.

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 H

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A 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 B 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 stated to be used jointly and shares in the lands were given to both, the minor son and the daughters stating as under: C “….Party No.2 to 51 have to take the education & to see that each of them take it freely & to provide for the expenses therefore and to see that each of them will meet the expenses out of their own property and that no dispute took place between them in future, therefore we are executing & keeping with us D this deed of partition…..”

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: E “In this way we have partitioned over estate, the property fallen to the share of party have taken its possession & became the full owner thereof. Now nobody is concerned with the property of others. Out of us for the education & 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 & consideration executed F & kept this deed of partition, on this 31st day of January 1970.”

7Copy pinpoint7. We may also notice that the prelude to the aforesaid Partition Deed on account of an earlier Partition Deed executed between Vithaldas and his father Jagannath, on 20.1.1955, when a separate provision was also made through a Gift Deed by Jagannath, in favour G of the wife of Vithaldas.

8Copy pinpoint8. On the provisions of the said Act coming into force, the Surplus Lands Distribution Tribunal (for short ‘SLDT’) instituted proceedings in exercise of suo moto powers in respect of the return 1 H Children of Vithaldas

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 935 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

filed under Section 12 of the said Act by Vithaldas, which Section falls in Chapter IV, dealing with ‘surplus land’. In the course of the assessment proceedings regarding surplus land, the holdings of the entire family were taken into consideration, as in terms of Section 2 (11) of the said Act, the family would include an HUF, which is joint in estate, or possession, or residence. A family unit, under Section 11-A of the said Act, for definition, has referred to Section 4, defining ‘land held by a family unit’. In terms of order dated 19.11.1976, 60 acres and 27 gunthas of land of late Vithaldas was declared surplus. This order was assailed before the Maharashtra Revenue Tribunal, Bombay Bench, Nagpur, which dismissed the appeal on 16.2.1977, resulting in proceedings being filed by Vithaldas, before the Bombay High Court, C Nagpur Bench. In terms of order dated 2.3.1982, learned Single Judge of the Nagpur Bench of the Bombay High Court remitted the matter back to the SLDT for fresh inquiry, on the ground of lack of adequate opportunity provided to Vithaldas and others to present their case.

9Copy pinpoint9. On remand, a fresh order was passed by the SDO, Chikhali D 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; (c) the land allotted to the two major daughters of Vithaldas, Shakuntala and Durgadevi.

10Copy pinpoint10. The appeal proceedings were lodged by Vithaldas, his wife, the son and the third daughter, Beladevi, under Section 33 of the said Act. The other two minor daughters, who had attained majority before 2.10.1975, however, did not file the appeal as they were apparently satisfied with the view adopted by the SDO. The State also filed cross- objections challenging the exclusion of the land by the SDO qua (b) & G (c) aforesaid. Since the two elder daughters were not aggrieved, they were neither the appellant, nor the respondent before the appeal proceedings. Nor did the State take care to implead them, despite having filed cross-objections qua their land. The appeal court, however, dismissed the appeal, and allowed the cross-objections vide order dated 3.12.1984. Since the land of the two elder daughters is the only concern, H

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A in this matter, the rationale for allowing the cross-objections has been set forth.

11Copy pinpoint11. The principal plea, which found favour with the appellate authority, was that the Partition Deed dated 31.1.1970 was against the principles of Hindu law to the extent it gave a share to minor daughters B in ancestral land. The land is stated to have also continued in the possession of Vithaldas. Even though the Partition Deed was pre the cut-off date of 26.9.1970, it was opined that the document could be looked into, in a case like the present one, where the property was apportioned to the two daughters who were not entitled to a share.

12Copy pinpoint12. 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 any interest on them, albeit it was before the cut- off date of 26.9.1970.

13Copy pinpoint13. An intra-court appeal was preferred, which was dismissed vide impugned order dated 27.11.2007. The Division Bench agreed with the findings that the partition effected vide Partition Deed dated 31.1.1970 was unnatural as it alienated properties to minor daughters, and that a female child could not get a share in the ancestral property, even though it was effected before the relevant date of 26.9.1970. Once again, as reflected in the records, the factum of cultivation of land by late Vithaldas was taken into account. The attainment of the age of majority by the elder two daughters, before the commencement date, 2.10.1975, was also ignored as irrelevant.

14Copy pinpoint14. The appellants before the Division Bench also sought to raise the issue of the two elder daughters not being arrayed as parties in the cross-objections, even though their existing rights were being affected. Further, it was argued that none of the members of the HUF had assailed the Partition Deed on any account. These pleas also did not find favour on the ground that it was late Vithaldas who sought to lose the land and, in effect, it was for him to see how to confer the rights on his two elder daughters. The two elder daughters were held to form part of the family unit.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 937 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

15Copy pinpoint15. The Special Leave Petition (‘SLP’) was filed only by late A 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. B 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.

16Copy pinpoint16. An additional affidavit was filed on behalf of the appellants, affirmed in March, 2017. On the appellants seeking the record from the Tehsil Office of the concerned district, they received a response, informing them that records from 1970 to 1975 are in a mutilated condition and that the mutation register for the period from 1964 to 1978 is not traceable. The crop statement was not available for the period 1970-1972 for Village Mangrul, while for Village Babulgaon the crop statement was not available for the period 1970-1973, for Survey No.14. It was thus notified that the crop statement for Survey No. 12 was not available for the period 1971-1972. The records made available, however, do show that from 1972- 1976, for Survey No. 12, and from 1973-1976, as gathered for Survey No. 14, the two daughters were shown as occupants, but through their guardian. It may be noted that somehow, on attaining the age of majority, apparently no endorsement was made qua the elder two daughters on that aspect. The Record of Rights also shows a similar position.

17Copy pinpoint17. 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 commencement date 2.10.1975 was seemingly not made. H

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18Copy pinpoint18. We heard Mr. Krishnan Venugopal, learned Senior Counsel for the appellants and Mr. N.R. Katneshwarkar, Advocate on behalf of the respondent-State. Deemed Fiction:

19Copy pinpoint19. 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.2 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.3 D

20Copy pinpoint20. 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 Sections.

21Copy pinpoint21. 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.4” This is the view also adopted by this Court in Gurdit Singh v. State of Punjab,5 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 G of Punjab6 was a similar one, The Pepsu Tenancy and Agricultural 2 Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79; State of West Bengal v. Union of India AIR 1963 SC 1241 3 The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL). 4 Gurdit Singh v State of Punjab (1974) 2 SCC 260 5 (supra) 6 H (supra)

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 939 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

Lands Act, 1955. It would be difficult to accept and countenance a 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 Act. This is also reinforced by the provisions of Section 18, dealing with determination of the surplus area of land where clause (b) specifically provides as under: “18. (a) xxxx xxxx xxxx xxxx (b) whether any land transferred between the period from 26th day of September, 1970 and the commencement date, or any land partitioned after the 26th day of September, 1970, should be considered or ignored in calculating the ceiling area as provided by sub-section (1) of section 10 or section 11;” Thus, once again, it is clearly stated that the lands transferred between the period 26.9.1970 and the commencement date (2.10.1975) D is what is to be ignored in calculating the ceiling area.

22Copy pinpoint22. 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 same. E

23Copy pinpoint23. 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 F 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 obviated. G

24Copy pinpoint24. 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 H

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A 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 date.

25Copy pinpoint25. On behalf of the appellants, a number of judgments have been referred to, on how a deemed fiction should be construed. Thus, a B legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field7. 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, C the issue of legal fiction was, once again, examined 8. 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 legislature.”

26Copy pinpoint26. This judgment has found support in a subsequent judgment of this Court in Raj Kumar Johri v. State of M.P.9 Thus, the aforesaid 7 Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603 8 Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 H 9 (2002) 3 SCC 732

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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 time.

27Copy pinpoint27. This Court, in Uttar Chand v. State of Maharashtra,10 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 fraudulent. C

The appellate authority allowing the cross-objections:

28Copy pinpoint28. 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. D 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 appeal11. 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-objections12. The position 10 (1980) 2 SCC 292 11 Rajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 12 Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 H

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A would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing13. Thus, unqualified imprimatur can be lent to this view.

29Copy pinpoint29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters. B Unmarried daughters’ claim in HUF property:

30Copy pinpoint30. 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 time.

31Copy pinpoint31. 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 E a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated.

32Copy pinpoint32. It has been observed that a father can make a gift within reasonable limits of ancestral immovable property to his daughter as part of his moral obligations, at the time of her marriage or even F thereafter. In fact, there is an observation made that gift made of 1/6th of the total holding of the ancestral property is valid14. This is in view of the fact that such gifts made are for pious purposes, but the alienation must be by an act inter vivos15.

33Copy pinpoint33. In Guramma Bhratar Chanbasappa Deshmukh v. G Mallappa Chanbasappa & Ors. 16 , the legal position has been summarized as under: 13 Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) 14 Pugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321 15 R. Kuppayee v. Raja Gounder (2004) 1 SCC 295 16 H (1964) 4 SCR 497

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 943 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

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A 699] and declared the validity of a gift of 8 acres of ancestral land by a Hindu father to his daughter after marriage when the family was possessed of 200 acres of land. The marriage took place about forty years before the gift. There was no evidence that the father then had any intention to give any property to the daughter. The legal position was thus expounded by the learned B Judges. Munro and Sankran Nair, JJ.: “The father or the widow is not bound to give any property. There may be no legal but only a moral obligation. It is also true that in the case before us the father did not make any gift and discharge that moral obligation at the time of the marriage. But it is difficult C to see why the moral obligation does not sustain a gift because it was not made to the daughter at the time of marriage but only some time later. The moral obligation of the plaintiff’s father continued in force till it was discharged by the gift in 1899.”… ...Venkataramana Rao, J. in Sithamahalakshmamma v. Kotayya D [(1936) 71 MLJ 259] had to deal with the question of validity of a gift made by a Hindu father of a reasonable portion of ancestral immovable property to his daughter without reference to his son. Therein, the learned Judge observed at p. 262: “There can be no doubt that the father is under a moral obligation to make a gift of a reasonable portion of the family property as a marriage portion to his daughters on the occasion of their marriages. It has also been held that it is a continuing obligation till it is discharged by fulfilment thereof. It is on this principle a gift of a small portion of immovable property by a father has been held to be binding on the members of the joint family.” Adverting to the question of the extent of property he can gift, the learned Judge proceeded to State: “The question whether a particular gift is reasonable or not will have to be judged according to the State of the family at the time of the gift, the extent of the family immovable property, the indebtedness of the family, and the paramount charges which the family was under an obligation to provide for, and after having regard to these circumstances if the gift can be held to be reasonable, such a gift will be binding on the joint family members irrespective of the consent of the members of the family.”

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 945 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

This decision was followed by Chandra Reddy, J. of the Madras A High Court in Annamalai v. Sundarathammal [(1952) II MLJ 782, 784]… 16… The legal position may be summarized thus: the Hindu law tests conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of B partition. That right was lost by efflux of time. But, it became, crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. C By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances...”… In the aforesaid case, a discussion took place in respect of a Gift Deed executed with respect to a daughter. The acceptability of gifting of a reasonable part of the ancestral property, in favour of daughters, for marriage purposes, was held to be valid, and in accordance with Mitakshara law. There is a discussion of even the Manusmriti to conclude that, though it may not reflect the current legal position, but consistently, the Hindu texts not only sanction the giving of properties to daughters at the time of partition, or at the time of marriage, but even provisions can be made in advance, for the same. G

34Copy pinpoint34. The judicial pronouncement in Annamalai Ammal v. Sundarathammal & Ors.17 may also be noticed, where it has been observed as under: 17 AIR 1953 Mad 404 H

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A “5. If the obligation is moral and continuing one and could be made long after the marriage, could it be said that it is not within the competence of a father to make such a gift before the marriage? In my opinion, there is not much difference in principle between a gift after the marriage, and a gift before the marriage, the object of such a gift being to make a future provision for the bridal couple.

6. This leads me to the next question whether the circumstance that a gift is not described as a marriage provision under the document renders it an invalid one? To my mind, it appears it does not affect the validity of the gift. When a father makes a gift of a reasonable portion of the property to an unmarried daughter it may be assumed that it was meant to be a marriage provision. It is to be observed in this case that under Ex. P. 1 the plaintiff was given only a vested remainder and the gift in her favour would take effect only after the lifetime of the first defendant.”

35Copy pinpoint35. The aforesaid judgment received the imprimatur of this Court in Guramma Bhratar Chanbasappa Deshmukh & Ors. v. Mallappa Chanbasappa & Ors. 18.

36Copy pinpoint36. The legal view, thus, is very clear: a. A provision for marriage of unmarried daughters can be made out of ancestral property. b. Such provision can be made before, at the time, or even after the marriage. F c. 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 G to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself.

37Copy pinpoint37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision 18 H (supra)

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 947 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

was made for the marriage of the daughters. In fact, the provision is A 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. B If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law.

38Copy pinpoint38. 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, which reads as under: “Section 4 - Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation :- A “family unit” means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or E (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. F (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 G 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 H

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A date), and shall be taken into consideration in determining the ceiling area of a family unit.” 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.

39Copy pinpoint39. 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 same. The judgment of the Kerala High Court in Ponnu & Anr. v. Taluk Land Board, Chittur & Ors.,19may also be referred to, where, while dealing with the issue of a ceiling case, the conferring of rights on the son, under a partition deed, was held to be valid as being capable of being construed as a gift. The provisions of Section 122 of the Transfer of D Property Act, 1882 (hereinafter referred to as the ‘TP Act’), read with Section 123, were discussed. A gift, being a transfer of property made voluntarily and without consideration, has to be made by a registered instrument. A gift is essentially a transfer. Thus, even if there were no pre-existing rights, it could be a valid gift, so long as the said E requirements are met. In the facts of that case, the partition deed was not even between the joint owners or co-owners, but between the persons who owned the land exclusively and another person who held no existing title or right. It was held that a tribunal could go behind and look at the real nature of the transaction. Reliance was placed on F Made Gouda v. Chenne Gowda,20 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi 21, on a proper understanding of a transaction, the document was construed as a G composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. 22, while deciding 19 (1981) KLT 780 20 AIR 1925 Mad 1174 21 AIR 1962 Ker 313 22 H (1996) 9 SCC 388

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 949 OF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

whether the document in question was a will or a settlement, it was A held held that the nomenclature of the document is not conclusive, and instead its substance would be determinative. In 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 transaction. B

40Copy pinpoint40. 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. C

41Copy pinpoint41. 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 obligation.

42Copy pinpoint42. 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, F thus, also cannot be sustained.

43Copy pinpoint43. 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 G daughters, who are the appellants in the present proceedings.

44Copy pinpoint44. If any consequential orders are to be passed by the competent authority, arising from the aforesaid finding, the needful be done within a period of two months of the order being placed before the said authority. H

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45Copy pinpoint45. The appeal is accordingly allowed. The parties are left to bear their own costs.

K. M. JOSEPH, J.

B 1. Having perused the judgment authored by Brother Justice Sanjay Kishan Kaul, notwithstanding the highest respect that I maintain for him, I express my inability to concur with his judgment.

2. This appeal is filed by the appellants against the judgment of the High Court of Bombay, dismissing the appeal filed by their father, C Late Shri Vithaldas and their mother and confirming the judgment of the Learned Single Judge in the Writ Petition filed by their parents and also the order of the Tribunal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 hereinafter referred to as the Act.

3. Late Shri Vithaldas was married and had three daughters and D a son. He purported to enter into a partition which was registered on 31.01.1970. At the heart of the controversy in this case, is the allotment of shares to his two elder daughters, namely, Smt. Shakuntala and Smt. Durga Devi. They are hereinafter referred to as the elder daughters. They are appellant 1 and 2 in this Court. Both of them were minors at the time of partition, and the question is whether 31 acres and 29 guntas E of land allotted to them is to be excluded from the account of the family unit of Shri Vithaldas in determining the surplus land under the Act. Appellants 3 and 4 before this Court are the son and the third daughter of Late Shri Vithaldas.

4. Vithaldas filed a return under Section 12 of the Act on F 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. 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 G 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 H acres and 29 guntas. In Survey No. 12, the area is 17 acres 23 guntas

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 951 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

and in Survey No. 14, the area is 14 acres and 6 guntas. He further A 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 B Section 3(2) of the Act. The land gifted to his wife Kamla Devi by Shri Jagannath Khatri (fathr of Vithaldas) was found 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.

6. The State of Maharashtra, on the other hand, filed cross objections. The subject matter of the cross objection was as follows: Land gifted to Kamla Devi, wife of Vithaldas was wrongly excluded from the account of the family. Thereafter, in regard to the partition deed which is the subject matter of the controversy before us, the following is stated in the cross- objections:- The State objects to the partition deed at the record page No. 71 on following counts- i. The unnatural partition of minor sister is resorted to when the natural guardians are alive and nothing untowards is proved against them. ii. That instead of the present appellants who is the father of the minors and major and de facto guardian; the present partition deed shows the guardianship with Jagnnath Khatri G who is the grandfather of the minors. iii. The female child although gets the right to inherit the succession “opens” for her only on the death of the parents. Thus the partition deed is un-natural and against the sequence of Hindu Act of Maintenance. H

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A These are the national Acts passed by Parliament. The unnaturally therefore needs to be done away with. The entire area with the appellants, wife and appellants are to be clubbed together as per the definition of the family unit.

7. In the reply filed by Shri Vithaldas and his wife to the cross- B objections, in so far as it is related to the partition, it was stated as follows: The appellants further denied the contention raised by the Respondent State so far as the partition or allotment of share to the C daughters is concerned. The nomenclature is immaterial one. The factum of possession and cultivation is material one. The learned Sub Divisional Officer has rightly excluded the Survey Nos. 13 and 14 of Babalgaon from counting in the holding and the said finding need not any interference from this Tribunal. The contention raised in this ground are denied. D

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 in total land holding of the family. The E 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. F 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.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 953 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

10. It is relevant to consider the findings of the Tribunal: A In regard to the partition deed dated 31.01.1970, the contention of the State was that the daughters were not coparceners. They had no right to share in partition of ancestral property. Their right opened only upon the death of the father. The partition was attacked as unnatural. His wife, who was entitled to a share, was not given any share. The grandfather was shown as the guardian of the minor children though both the parents were living. The contention of the appellants was noted that what is material is the factual position as to cultivation. The Ceiling Authorities are not entitled to go behind the partition which took place before 26.09.1970. If the appellants-Vithaldas was not holding these lands on 26.09.1970 and thereafter, they could not be included.

11. Reliance was placed on the judgment of the Bombay High Court: “In the first place it is contended that Kiran the major unmarried daughter who is not included in the concept of “Family unit” under Section 4 of the Act was entitled to share on partition of the ancestral and joint family property and therefore, land to the extent of her share should be excluded in “terms of Section 3(3)(i) read with section 4 of the Act. This point has merely to be stated to be rejected. Hindu Law is clear what only certain females such as wife, widow, widow mother, grand mother only are entitled to share on partition. Unmarried daughters major or minor, married or unmarried does not belongs to that category of females.”

12. Reliance was also placed on judgment in Writ Petition No. F 2791 of 1976 by the Nagpur Bench of the Bombay High Court. Therein it was found that the High Court had ignored a partition with the declarant’s mother, by registered partition deed dated 09.01.1970.

13. The appellants-elder daughters, who were allowed shares in partition, were found to be minors. Shankuntala, whose date of birth G was 03.11.1955 was 14 years of age and Durga Devi, whose date of birth is 29.08.1957, was 12½ years old, when the partition was effected on 31.01.1970.

14. Vithaldas continued to be the owner as title had not passed to the two daughters by a legally valid instrument. H

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A 15. As far as the actual possession was concerned, the Crop Statement in respect of Survey No. 14 for the year 1970-1971 and 1971- 1972, showed the cultivation by Vithaldas. For the years 1972-1973 to 1974-1975, it was shown as jointly cultivated by Vithaldas and daughter Durga Devi.

B 16. In respect of Survey No.12, the property allotted to daughter Shakuntala, it was found that it was being cultivated by Vithaldas along with daughter Shakuntala.

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

18. The writ petition was filed, viz., [Writ Petition No. 111 of 1985] by Vithaldas and his wife and wherein respondent 6 was Smt. Shakuntala and respondent 7 was Smt. Durga Devi, the elder daughters. Be it noted that the elder daughters did not challenge the order of the D Tribunal. The learned Single Judge has proceeded to uphold the findings of the Tribunal except as we have noticed.

19. Learned Single Judge referred to Bhagwandas Heda and others v. State of Maharashtra and others1, and the decision in Writ Petition No. 2997 of 1976, and thereafter, proceeded to hold as follows: E “8. Moreover, it may be seen that although the respondents 6 and 7 were major on the commencement date i.e. 2-10-1975, they were still minor being aged 14 and 12 and half years, respectively, on 31.01.1970, when the partition was affected. In fact, their father, was, therefore, in possession of their alleged shares in field S.No.14 of village Babhulgaon and the crop statements for the years 1970-71 and 1971-72 show his cultivation, while crop statements for the years 1972-73 to 1974- 75 show the joint cultivation by him and his daughter Durgadevi. As regards field Survey No. 12, during the year 1974-75 the father Vithaldas along with his daughter Shakuntala is shows as jointly cultivating the said filed. AS regards filed Survey No. 14 for the years 1970-71 and 1971-72 Vitthaldas is shown to have cultivated the said field. It is on the basis of these facts that the learned M.R.T. held that the petitioner Vithaldas was holding field 1 H 1983 Mh. L.J. 825

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 955 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

survey no. 12 admeasuring 17 acres 28 gunthas and survey no. A 14 admeasuring 14 acres 6 gunthas of village Babulgaon, which is alleged to be allotted to the shares of the respondents 6 and 7, respectively, in the alleged partition deed dated 31-1-1970. 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 B 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. C

20. Before the Division Bench, attention of the judgment in this regard in Uttar Chand (Dead) by Lrs. v. State of Maharashtra and another2, was invited. The said judgment will be referred to later on. The State pointed out that the partition involved in the said case decided by this Court was among persons who had an existing interest in the property. The fact that wife of Vithaldas who had a right in the partition D was not given a share, was taken note of. The argument of the State was that the partition deed did not effect any transfer in favour of the elder daughters, and therefore, there was no question of recognizing any transfer effected prior to 26.09.1970.

21. Thereafter, the findings are to be found in paragraphs 9, 10, E 11, 12: “9. We have carefully considered the rival submissions. First, in 1970, there could be no question of daughters being entitled to a share of family properties in a partition during the life-time of their parents. Further, showing father of appellant No. 1, as their F guardian in such a partition, would not result in severing them from the appellants’ family. Had appellant No.1 so wished, he could have gifted the properties to respondent Nos.6 and 7, but that too would not have mattered so long as respondent Nos.6 and 7 continued to be a part of his family. The judgment of the G Supreme Court in Uttar Chand v. State of Maharashtra, reported at AIR 1980 SC 806, on which the learned Advocate for the appellants places reliance, does not help the appellants, since in that case, the Apex Court was considering actual transfers 2 AIR 1980 SC 806 H

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