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

A effected before the relevant date, whereas in the case at hand, there are no such actual transfers, but only attempted evasion, if we may so describe the partition dated 31-1-1970. Further, as rightly observed by the learned Single Judge, the 7/12 extracts of the fields in question show that they were in joint cultivation of appellant No.1 and his daughters right up to the year 1975. B

10. It is not necessary to dissect the expression used by the Tribunal while discussing the effect of these transfers. As held in the judgment of this Court in Dadarao v. State of Maharashtra, reported at 1969 Mh.L.J. 813, on which the learned Advocate for the appellants has placed reliance, such partition may be valid or invalid as between the parties. The question is whether it is to be recognized for the purpose of determining the ceiling area or not. Herein, since there was no transfer by the instrument dated 31-1-1970 in favour of respondent Nos.6 and 7, there was no question of recognizing and transfer for the purpose of determining surplus land of appellant No.1.

11. The learned Advocate for the appellants submitted that the partition had not been questioned by the concerned members of the family and, therefore, there was no reason whatsoever for ignoring such partition. He submitted that the question whether respondent Nos.6 and 7 were entitled to a share in such partition, could have been agitated only by respondent No.4 Anilkumar and appellant No.2 Kamladevi and it was not open for the State to question the rights created in favour of respondent Nos.6 and 7 by a document dated 31-1-1970.

F 12. This fallacious contention was rightly repelled by the learned AGP by pointing out that the State was as much an interested party as the family members, because operation of the provisions of the Act entitled the State to secure the surplus land for the purpose of their distribution. If the argument of the learned Advocate for the appellants were to be accepted, fictitious transfer, in which the transferor or the transferee had no dispute, would have taken out the entire surplus land out of the provisions of the Act. Therefore, this contention of the learned Advocate for the appellants has to be rejected.”

22. As regards the flaw in entertaining the cross objection filed by the State, it came to be dealt with by the High Court on the footing

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that under Section 33 of the Act, the Code of Civil Procedure, 1908 A was to be followed. It was found that the observation of the Tribunal about State not being required to pay court fee, was not proper but non-payment of court fee was not a matter over which a litigant could take advantage. State could approach the Tribunal to make the deficiency good. Thereafter, the question was posed whether the B Tribunal could have entertained the cross objection which affected the rights of the elder daughters without their presence in the party array before the Tribunal.

23. The High Court dealt with the judgments of the High Court of Judicature at Allahabad in Kundomal Ganga Ram v. Topamal Chotamal3 and Malireddi Venkatapathi and others v. Malireddi Veerayya C and others—-4 for the principle that a respondent maintaining cross objection could do so after a person affected by the cross objection was brought on the party array and proceeded to hold as follows in paragraphs 21 and 23: “21. We have carefully considered these submissions. Apart from the question whether respondent Nos.6 and 7 had any right in the concerned fields, it seems to us that there was absolutely no possibility of their rights, if any, being prejudicially affected by inclusion of concerned lands in the holding of appellant No.1. It would be appellant No.1, who would stand to lose corresponding acreage after adjusting the claims of respondent Nos.6 and 7, if he was so keen to ensure that they got what he desired to give them. The order passed by the Tribunal was not one directed against respondent Nos.6 and 7, but was one which affected the rights of the appellant. There is no similarity with the facts of the unreported judgment in the case of Balkrishna Maharaj F Mandir, referred to above, because in that case, Tarasingh was a tenant, who was also a party before the Surplus Land Determination Tribunal. Therefore, we do not find any force in the submissions made on behalf of the appellants as the proxy of respondent Nos.6 and 7. G xxx xxx xxx

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A and the learned Single Judge did was to take into account the fact that lands continued to be with appellants as there was no severance of respondent Nos.6 and 7 from appellants’ family. As for court-fees on cross-objection, though we disapprove observations of the Tribunal, the defect is curable and cannot help appellants in pocketing a chunk of land, which should become available to the State for distribution. Respondent Nos.6 and 7 were not necessary parties to the cross-objection, first, because of absence of subsisting interest in the properties, and secondly, because appellants could be trusted to take care of their daughters’ interests from their own property, rather than resorting to what may be proverbially described as “Robbing Peter to pay Paul”. Lastly, claim for exclusion of field survey no.106 of Sawangi, contending that the gift dated 20-1-1955 was not actually received, while at the same time taking a diametrically opposite stand about document dated 30-1-1970, amounts to blowing hot and cold in the same breath.” D And on this basis the appeal came to be dismissed. CONTENTION OF THE APPELLANTS

24. The arguments addressed by the learned senior counsel for the appellants run thus: E There was a partition entered into and registered on 31.01.1970. Thereunder, certain lands have been set apart to the daughters of Shri Vithaldas. Shri Vithaldas had three daughters and one son besides his wife. All the three daughters were minors as on 31.01.1970. The commencement day is 02.10.1975. The elder daughters turned major prior to the appointed day. Therefore, having regard to the meaning of the words “family unit”, as contained in Section 4 of the Act, the property held by the elder daughters, which were acquired under the registered partition deed dated 31.01.1970, must be excluded in calculating the land holding by the family unit. He seeks to buttress his position by pointing out that the Legislature has fixed the cut off date after which partition deed would be ignored for the purpose of calculation of the ceiling limit. Indeed, Section 11 of the Act, declares that any partition after the 26th Day of September, 1970 shall be deemed unless the contrary is proved to have been made in anticipation or in order to avoid or defeat the objective of the Amending Act, 1972 and

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shall accordingly be ignored. Consequently, the land covered by such partition shall, for the purpose of this Act, be the land held by the family. The appellants placed further store by Section (10) of the Act which again contemplates 26.09.1970 as the date beyond which transfers would be held to be infirm as executed for defeating the object of the Amending Act, 1972. Section 10 of the Act further proceeds to declare that the ceiling account will be determined ignoring such transfers. As far as Section 8 of the Act is concerned, it is directed against transfer made on or after the commencement date, viz., 02.10.1975. The explanation supplies the meaning of the word “transfer” for the purpose of this Section in a most wide manner and I need not be detained further by the contours of the said definition. The argument of the appellants is that the Legislation in question is expropriatory. Therefore, such a Statue must be interpreted, no doubt, by giving full play to the express provisions but it cannot go beyond the same. In other words, having regard to the fact that the partition deed, at the heart of the controversy in this case, is executed and registered on 31.01.1970 much before even 26.09.1970 and many years before the commencement day, the partition deed must be given full operation resultantly. Properties, which stood allotted to elder daughters under the partition deed, must be excluded from the account of the family unit as by the said day, the elder daughters had become major, and could no longer be members of the family unit.

25. It is contended by the learned senior counsel for the appellants that there is no case for the respondent-State that the partition was a collusive one. The further contention raised by the learned senior counsel for the appellants is that the Tribunal acted illegally in allowing the cross objection of the respondent-State and thereafter holding that the partition deed dated 31.01.1970 is to be ignored.

26. The learned counsel for the appellants has contended that a legal fiction should not be extended beyond the purpose for which it was created. In this regard, appellants relied on the following case law G – Bihar Immunity Company Ltd. v. State of Bihar and Others5; Commissioner of Income-Tax v. Bombay City I, Bombay v. Amarchand N. Shroff by his heirs and legal Representatives6; Commissioner of 5

(1955) 2 SCR 603

6 AIR 1963 SC 1448 H

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A Income Tax, Kanpur v. Mother India Refrigeration Industries (P)Ltd.7; Bijender Singh v. State of Haryana and another8.

27. It is also sought to be contended that the purpose of the legal fiction is to be ascertained from the plain language of the provisions that creates it (See Commissioner of Income-Tax, Delhi v. S. Teja B Singh9).

28. Irrespective of how beneficial the object of the Statute may be, the deeming fiction cannot be extended beyond the purpose of creating the fiction (See Mancheri Puthusseri Ahmed and Others v. Kuthiravattam Estate Receiver10).

C 29. Still further, it is contended that while interpreting the deeming fiction, recourse to the object of the Statute would be permissible only where the language is ambiguous (See (2009) 1 SCC 540). There can be no quarrel with these principles. CONTENTIONS OF THE STATE D

30. Per contra, the learned counsel for the respondent-State would seek to support the order of the High Court. He would point out that despite and notwithstanding the so-called partition deed dated 31.01.1970, it was the father who continued to be in possession and to take the income. He was equally carrying out the cultivation. Partition E deed, therefore, was a ruse and it is not to be taken into account for determining the extent of the land and the land seemingly allotted to the elder daughters must also be taken into consideration which is what has been done by the Tribunal and approved of by the High Court. He would point out that the court must lose sight of the fact that the F Legislation is a beneficial Legislation intended to empower the landless by endowing them with property rights over land and the judgment of the High Court does not warrant interference. THE ‘ACT’: SINCE ITS ENACTMENT AND CHANGES RELEVANT TO THE CONTROVERSY

G 31. It is necessary to appreciate the scheme of the Act. The Act was enacted in the year 1961. Section 2(4) defined the appointed day 7 (1985) 4 SCC 1 8 (2005) 3 SCC 685 9 AIR 1959 SC 352 10 H (1996) 6 SCC 185

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as meaning “the day on which this Act comes into force”. The Act as A such came into force on 26.01.1962. It is relevant to note that drastic changes have been brought about subsequent to the enactment in 1961. To understand its impact, the provisions of Sections 3, 4 and 5 as originally enacted are referred to here under: - Section 3 read as follows: - B “In order to provide for the more equitable distribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that landless persons are given land for personal cultivation), on the commencement of this Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximum limit (or ceiling) on the holding of agricultural land throughout the State.” Section 4 read as follows:- “4(1) Subject to the provisions of this Act, no person shall hold land in excess of the ceiling area, as determined in the manner hereinafter provided. Explanation.- A person may hold exempted land to any extent. (2) Subject to the provisions of this Act, all land held by a person in excess of the ceiling area, shall be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land.” Section 5 provided for the ceiling area Chapter III in which Sections 8 and 9 11 fell, is to be noticed. “8. No person who, on or after the appointed day, holds land in excess of the ceiling area, shall on or after that day transfer or partition any land until the land in excess of the ceiling is determined under the Act; Explanation.- In this Section “transfer” means transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition) made inter-vivos; and “partition” means any division of land by act of parties made inter- vivos.” The appointed day, it has been noticed was the 26th day of January, 1962. H

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A “9. No person shall, at any time on or after the appointed day, acquire by transfer or partition any land, if he already has land in excess of the ceiling area, or land which together with any other land already held by him will exceed in the total the ceiling area. B Explanation.- In this section, “transfer” and “partition” have the same meaning as in Section 8.” Section 12 fell under Chapter IV under Chapter Heading Surplus Land and it provided for filing returns. Reference is made to the far-reaching changes which were C brought out by the Maharashtra Act No. XXI of 1975. The preamble reads as follows: “WHEREAS, in the State of Maharashtra, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 imposed for the first time, in the public interest the maximum limit (or ceiling) D on the holding of agricultural land, and provided for the acquisition of land held in excess of the ceiling for distribution thereof amongst the peasantry of the State, and in particular, among landless persons; and for other purposes therein stated; AND WHEREAS, it is now expedient to lower, in the public interest, the maximum limit (or ceiling) on the holding of agricultural land in the State for making available additional land as surplus, so as to secure a still more equitable distribution of land, and for the purpose of removing economic disparities, and thereby for assisting more effectively landless and other persons; and generally for the purpose of so distributing the agricultural resources of the community as best to subserve the common good, and also to prevent the concentration of the means of agricultural production and wealth to the common detriment.” (Emphasis supplied) G It was to come into force on such day, as it was notified. It came into force from 19/09/1975.

32. Section 2(6A) of the Act defines the “commencement date” to mean the 2nd Day of October, 1975.

H 33. “Family” is defined in Section 2 (11) of the Act:

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 963 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

“2(11) “family” includes, a Hindu undivided family, and in the case A of other persons, a group or unit the members of which by custom or usage, are joint in estate or possession or residence;”

34. Section 2(14) is relied upon by the learned counsel for the State and it defines the words “to hold land”: B “2(14)”to hold land”, with its grammatical variations and cognate expressions, means to be lawfully in actual possession of land as owner or as tenant; and “holding” shall be construed accordingly;

35. Section 2(21) also relied on by the State defines the word C “owner”: “2(21)”owner”, in relation to any land, includes the person holding the land as occupant, 4[or superior holder as defined in the Code], or as lessee of Government, a mortgagee-in-possession, and a person holding land for his maintenance;” D

36. Section 3(1) contains the actual prohibition in the matter of holding land and it reads as follows: “3(1)Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner E hereinafter provided. Explanation.–A person or family unit may hold exempted land to any extent.”

37. Section 3(3) may also shed light: F “(3) Where any land– (a) is held by a family of which a person is a member, (b) is held in or operated by a co-operative society of which a person is a member, G (c) is held by a person jointly with others, (d) is held by a person as a partner in a firm and the holding of such person or of a family unit of which such person is a member[including the extent of share of such person, if any, in the land answering to any of the descriptions in clauses H

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A (a), (b), (c) or (d) above] exceeds the ceiling area on or before he commencement date or on any date thereafter (hereinafter referred to as the relevant date), then for the purpose of determining the ceiling area and the surplus land in respect of that holding, the share of such person in the land aforesaid shall be calculated in the following manner :– B (i) in the land held by a family of which the person is a member, the share of each member of the family shall be determined so that each member who is entitled to a share on partition, shall be taken to be holding separately land to the extent of his share, as if the land had been so divided and separately held on the relevant date; (ii) in the land held in or operated by a co-operative society or held jointly with others or held by a firm, the share of the person shall be taken to be the extent of land such person would hold in proportion of his share in the co-operative society, or his share in the joint holding or his share as partner in the firm, as if the land had been so divided and separately held on the relevant date.”

38. Section 5 provides for “ceiling area”. Section 5(1) and 5(2) reads as follows: E “5. Ceiling Area.- (1) In each of the districts and talukas specified in column 1 of the First Schedule, for each class of land described in columns 2, 3, 4, 5 and 6 thereof, the ceiling area shall be the area mentioned under each such class of land against such district or taluka. F (2) If a person, or a family unit, holds land of only one class, the ceiling area for his or its holding shall be the ceiling area for that class of land.”

39. I may now note Sections 8,9,10 and 11 of the Act, which substituted the earlier provisions: G “8.Restrictions on transfer.- 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.

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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 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 a public purpose under any law for the time being in force.

9. Restrictions on acquisition of land in excess of ceiling area.- No person or a member of a family unit shall at any time, on or after the commencement date, acquire by transfer any land if he, or as the case may be, the family unit already holds land in excess of the ceiling area or land which together with any other land already held by such person, or as the case may be, the family unit, will exceed in the total the ceiling area. Explanation.–In this section, transfer has the same meaning as in section 8. E

10. Consequences of certain transfers and acquisitions of land.- (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 (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. H

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A 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 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 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. 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. D 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. E (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. (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

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 967 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

encumbrance is made by him, direct that the right, title and interest of the holder in some other land of the holder equal in extent to the land acquired in wilful contravention of section 9, shall be forfeited to Government.

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

40. Section 12 falling in Chapter IV deals with submission of returns and provides for submission of returns. Section 12(1) reads as follows: E “12: SUBMISSION OF RETURNS – [If any person or family unit - (1)(a) has at any time after the 26th day of September 1970 but before the commencement date held, or (b) on or after the commencement date acquires, holds or comes into possession of, any land (including any exempted land), in excess of the ceiling area, or”

41. Section 14 provides for the power of the Collector to hold inquiry: “14. Power of Collector to hold enquiry.-(1)As soon as may be after the expiry of the period referred to in section 12 or the further period referred to in sub-section (2) of section 13, the Collector shall either suo motu whether or not a return had been filed or] on the basis of the returns submitted to him under either of those sections, and such record as he may consider it H

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A necessary to refer to, hold an enquiry in respect of every person2[or family unit] holding and in excess of the ceiling area, and shall, subject to the provisions of this Chapter, determine the surplus land held by such person2[or family unit. (2) Where a person or family unit holds land in two or more talukas of the same district, the enquiry shall be held by such officer or authority exercising the powers of the Collector whom the Collector-in-charge of the district may by order in writing designate. (3) Where a person4[or family unit] holds land in two more districts of the same division, the enquiry shall be held by the Collector whom the Commissioner may, by order in writing, designate. (4) Where a person4[or family unit] holds lands in different divisions, the enquiry shall be held by the Collector whom the D State Government may, by order in writing, designate.5[(4A)Where a person holding land in an industrial undertaking, the enquiry may be held by the Collector whom the State Government may, by order in writing, designate].(5)The Collector so designated, shall for the purposes of the enquiry, be competent to exercise jurisdiction under this Act in respect of such person6[or family unit] and the lands held by him[or it].”

42. Section 18 is of vital importance to consider the question and it reads as follows: “18. Collector to consider certain matters.-18.On the day fixed for hearing under section 14, or any other day or days to which the inquiry is adjourned, the Collector shall, after hearing the holder and other persons interested and who are present and any evidence adduced, consider the following matters, that is to say,– (a) what is the total area of land which was held [by the holder on the 26th day of September, 1970; (b) whether any land transferred between the period from the 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;

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(bb) whether the holder has any share in the land held by a A family or held or operated by any co-operative society or held jointly with others or held as a partner in a firm; and the extent of such share; (c) What is the total area of land held [by the holder on the commencement date? B (d) whether any transfer or partition of land is made by the[holder] in contravention of section 8 or 11 and if so, whether the land so transferred or partitioned should be considered or ignored] in calculating the ceiling area under the provisions of sub-section (1) of section [10 or section C 11?] (e) whether any land has been acquired or possessed on or after commencement date by transfer or by partition? (f) whether any land has been acquired on or after the [commencement date] by testamentary disposition, D devolution on death or by operation of law? (g) what is the total area of land held at the time of the enquiry, and what is the area of land which10[the holder] is entitled to hold? E (h) whether any land is held by [the holder] as tenant, and if so, whether his landlord has a subsisting right of resumption of the land for personal cultivation, under the relevant tenancy law applicable thereto? (i) whether any land held by[the holder] is to be forfeited to F Government under sub-section (3) of section 10, or of section 13, or should be deemed to be surplus land under any of the provisions of this Act? (j) whether the proposed retention of land by [the holder] is in conformity with the provisions of section 16? G (k) which particular lands out of the total land held by1[the holder] should be entitled as delimited as surplus land? (l) any other matter which, in the opinion of the Collector, is necessary to be considered for the purpose of calculating the ceiling area, and delimiting any surplus land.” H

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A 43. Section 21 provides that the Collector is to make a declaration regarding surplus land, etc., after the inquiry.

44. Section 22 provides for compensation for any land acquired. The Section provides for the procedure and method of payment.

45. Chapter VI comes under the Chapter heading “Distribution B of Surplus Land”.

46Copy pinpoint46. Matters including the priority to be observed are indicated.

47Copy pinpoint47. Chapter VII deals with provision of appeal.

48Copy pinpoint48. Section 33 provides that an appeal lies against the order or C award of the Collector, before the Maharashtra Revenue Tribunal. Since it may have a bearing on the argument based on the illegality committed by the Tribunal allegedly in allowing the cross objection, it is referred to and it reads as follows: “33. Appeals.- (1)An appeal against an order or award of the D Collector shall lie to theMaharashtra Revenue Tribunal in the following cases :– (1) an order under sub-sections (2) and (3) of section 131[not being an order underwhich a true and correct return complete in all particulars is required to be furnished; E (2) a declaration2[or any part thereof] under section 21;3[(2a) an order under section 21-A; (3) an award under section 25; (4) an order refusing sanction to transfer or divide land under section 29; F (5) an order of forfeiture under sub-section (3) of section 29; (6) an amendment of declaration or award under section 37; and (7) an order of summary eviction under section 40. G (1A) Any respondent, though he may not have appealed from any part of the decision, order, declaration or award, may not only support the decision, order, declaration or award, as the case may be, on any of the grounds decided against him but take cross- objection to the decision, order, declaration or award which he H could have taken by way of an appeal:

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Provided that, he has filed the objection in the Maharashtra A Revenue Tribunal within thirty days from the date of service on him of notice of the day fixed for hearing the appeal, or such further time as the Tribunal may see fit to allow and thereupon, the provisions of Order 41, rule 22 of the First Schedule to the Code of Civil Procedure,1908, shall apply in relation to the cross- B objection as they apply in relation to the cross-objection under that rule (2) Every petition of appeal under sub-section (1), shall be accompanied by a copy of the decision, order, declaration or award, as the case may be, against which the appeal is made. C (3) In deciding such appeal the Maharashtra Revenue Tribunal shall exercise all the powers which a court has and follow the same procedure which a court follows, in deciding appeals from the decree or order of an original court, under the Code of Civil Procedure, 1908. (V of 1908).” D

49Copy pinpoint49. The power of the Tribunal is provided under Section 34, which reads as follows: “34. Power of Maharashtra Revenue Tribunal to confirm, etc.-. The Maharashtra Revenue Tribunal, in deciding an appeal E under section 33,may confirm, modify or rescind the decision, order, declaration or award or the amended declaration or award, as the case may be.”

50Copy pinpoint50. Section 41 bars the jurisdiction of Civil Court and it reads as follows: F

“41. Bar of jurisdiction.- No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Commissioner, Collector, Tribunal, the officer uthorized under G section 27, the Maharashtra Revenue Tribunal or the State Government. Explanation.–For the purpose of this section a civil court shall include a Mamlatdar’s Court constituted under the Mamlatdar’s Court Act, 1906.(Bom.II of 1906)” H

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51Copy pinpoint51. No doubt, Section 44(B) excludes pleaders, etc.. It reads as follow: “SECTION 44B: PLEADERS, ETC. EXCLUDED FROM APPEARANCE.-Notwithstanding anything contained in this Act or any law for the time being in force, no pleader shall be entitled B to appear on behalf of any party in any proceedings under this Act before the Authorised Officer, the Tribunal, the Collector, the Commissioner, the State Government or the Maharashtra Revenue Tribunal:

C Provided that, where a party is a minor or lunatic, his guardian may appear, and in the case of any other person under disability, his authorised agent may appear. Explanation. - For the purposes of this section, the expression “pleader “ includes an advocate, attorney, vakil or any other legal D practitioner.”

52Copy pinpoint52. Among the changes that have been ushered in the definition clause, the following are noted: - In section 2, sub-Section(5A) was added and it defined ‘Code’ E to mean Maharashtra Land Revenue Code, 1966 and sub-section 6A, which was added as the ‘commencement date’ means date on which the Amending Act, 1972, comes into force. Section 2 (11A) was inserted and it purported to define ‘family unit’ to mean family unit as explained in Section 4. F In Section 2(20), definition of ‘member of a family’ was substituted and it reads as follows:- “(20) ‘member of a family’ means father, mother, spouse, brother, unmarried dependent sister, divorced and dependent sister, son, son’s wife, unmarried daughter, divorced and dependent daughter, G sons’s son, son’s unmarried daughter, son’s divorced and dependent daughter.” A completely different Chapter came to be inserted as Chapter II. This was done by way of substitution of the earlier Chapter, the H Chapter contained in the Act prior to the amendment.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 973 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

53Copy pinpoint53. The following questions would arise for consideration by the A Court:-

1. Whether the authorities under the Act have the power to find that the partition entered into before 26.9.1970, was sham or collusive and thereby ignore the same? B

2. Notwithstanding the registered partition dated 31.01.1970, whether the property allotted to the elder daughters of Shri Vithaldas is liable to be included in the account of the family unit?

3. What is the effect of the cross-objections of the State being allowed in the absence of elder daughters, in the appeal before the C Tribunal? POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION PRIOR TO 26.09.1970

54Copy pinpoint54. In order to appreciate the intention of the Legislature in this regard, the word “transfer” and “partition” as employed in Section 10 D 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 word “transfer” must be understood, as describing, cases where under the law, by means of the devices mentioned in the Explanation to Section 8, the previous owner ceases to be the owner and the transferee acquires his rights. 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.

55Copy pinpoint55. I have noticed the matters to be considered by the Collector under Section 18 of the Act. Apart from clauses (a) and (b), he is duty bound to ascertain other matters. Clause (c) of Section 18 of the Act H

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A specifically mandates that the Officer must find out what is the total area of land held by the holder on the commencement date. Clause (l) 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 B conjunction with Section 18(c) and (l), inter alia, establishes that the Collector has power and it becomes his duty, in fact, to ascertain what is the area held on the appointed day, viz., 02.10.1975. I have noticed that 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 C 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. The word ‘occupant’ is defined with reference to its definition in the code. It is noteworthy that the word ‘owner’ includes the specified categories. If D a person is owner as it is commonly understood, then he is comprehended. 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. The same is the position with respect to a mortgagee in possession and a person who holds land for his maintenance.

56Copy pinpoint56. 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 mater of gleaning the meaning of a Statute and demystifying the words of a Statute and discovering the intention of the legislation, the court must bear in mind certain presumptions. The court will presume that the G 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. It will not begin with the assumption that the Legislature is ignorant of the opinions expressed by the courts on points of law. It will presume that the Legislature was aware of the decisions rendered H by the courts on points of law.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 975 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

57Copy pinpoint57. In Sree Meenakshi Mills Ltd., Madurai v. Commissioner of A Income Tax, Madras11, this Court had occasion to consider what the word “benami” has come to denote: “30. Now, the assumption underlying this argument is that the Tribunal had found in its order that the intermediaries were benamidars for the appellants, but there is no basis for this in B the order. In this connection, it is necessary to note that the word ‘benami’ is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example when sells properties to but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word ‘benami’ is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when purports to sell his property to without intending that his title should cease D or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when E a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid. …” (Emphasis supplied)

58Copy pinpoint58. In Kalwa Devadattam and others v. The Union of India and others12, the matter arose under Sections 25A, 67 and 30 of the Income Tax Act, 1922. One of the questions which arose was whether the partition involved in the said case was sham. The High Court relied upon the circumstances to find out that the deed of partition involved in the said case, though registered, was nominal. The object of the 11 AIR 1957 SC 49 12 AIR 1964 SC 880 H

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A partition, it was contended, was to protect the interest of the minor sons against the father who was not even living with the family and was acting to the detriment of his sons. Though the deed showed apparently an equal distribution of the property into four shares of the same value, the property allotted to the share of Nagappa was in reality not worth the amount shown. It was found that the intention of Nagappa was to make it appear to the Income Tax Department that no useful purpose will be served by taking steps. In the course, the Court proceeded to hold, inter alia, as follows: “14. … The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at a partition. Counsel for the plaintiffs practically conceded that fact, and submitted that Nagappa’s desire to defeat his creditors, and to save the property for his sons, was the real cause for bringing the deed of partition into existence. Counsel claimed however that Nagappa had adopted the expedient of effecting a partition with the object of putting the property out of the reach of his creditors and the genuineness of that partition should not be permitted to be blurred by the unmeritorious object of Nagappa. But the continued management of the property by Nagappa since the partition, and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. …” (Emphasis supplied)

59Copy pinpoint59. The Legislature, when it enacted the Act, must be presumed to know the state of the law to be that a transfer deed by way of a sale or lease or a mortgage, may be nothing but a nominal and a sham transaction. 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 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

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 977 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

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.

60Copy pinpoint60. A sham transaction demonstrated to be one when the appointed day dawns must certainly be treated as such, and the consequences, that are well-established in law, must afflict such a pretense of a transfer or a partition. Such a power must indeed vest with the Collector under Section 18 read with Section 3 of the Act. To deny the Collector such power as the appellants would attempt to persuade the court to hold, would involve asking the court to take leave of its commonsense and to place an interpretation on the Statute which will result in an absurd, besides an unjust situation. The interpretation canvassed by the appellants would result in defeating the object of the C Statute. 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 Statue, and equally importantly, is one, which the plain language of the Statute is capable of bearing, would persuade this Court to hold that D 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. E

61Copy pinpoint61. Section 30 of the Act sets out the powers of the Collector when he holds that inquiry under the Act. It declares that the Collector shall have same powers as are vested in the courts under the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’) in trying a suit in respect of the following matters: F (i) Proof of facts by affidavit; (ii) Summoning and enforcing attendance of any person and examining him on oath; (iii) Compelling the production of documents. G Under Section 31 of the Act, the Collector is obliged to set down reasons for his decision. Thus, 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 H

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A 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 B the same as that which the civil court enjoys in this regard.

62Copy pinpoint62. The argument of the appellants that the remedy open to the State would be to have a suit instituted and invite a civil court to adjudicate and pronounce a decree declaring a transaction as sham, does not commend to me. The Legislature has indeed clothed the C Collector with jurisdiction and the power to determine such questions. It would indeed amount to placing an interpretation which would render the Statute unworkable. On the other hand, the interpretation that if materials exist in the form of oral or documentary evidence, which clearly shows that the purported transfer or partition prior to 26.09.1970 D was a sham transaction, the object of the Statute would be furthered by allowing the Collector or other authorities to decide the matter accordingly.

63Copy pinpoint63. In Uttar Chand (supra), this Court in fact was considering the provisions of the Act where at a time when Sections 8, 10 and 12 E had not been amended into its present avtar. The Act itself exempted lands which were acquired or transferred prior to 04.08.1959. This was provided in Sections 8, 9 and 12 of the Act, as it stood. In the said case, the High Court has found the transfer to be collusive. So also, was a decree involved in the said case under which a large extent of land was given to his mother by the adopted son. This Court held “there was neither any pleading nor any case made out either before the Deputy Collector or before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer by Nemichand in favour of his mother, were collusive or tainted by fraud”. The transaction had been entered into five years before the Act was brought into force. Thereafter, no doubt, this Court went on to hold as follows: “3. … Even the Act clearly exempts lands which may have been acquired or transferred prior to 4-8-1959. Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4-8-

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 979 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

1959. As both the transfers mentioned above were prior to 4-8- A 1959, it is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son and the transfer by the adopted son Nemi Chand to his mother were either collusive or fraudulent. There B was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.” (Emphasis supplied)

64Copy pinpoint64. This was in fact a case where the finding of the court is based on there being no foundation in the pleadings nor any evidence to support the finding that the transactions were collusive or tainted by fraud. The transactions had taken place a good five years before the Act came into force. On a proper appreciation of the decision, though it may be contended that the decision should be understood as declaring that a transaction, even if it is collusive, having been entered into prior to the cut off date, it cannot be impeached, it may not be the correct way of looking at the decision. If there were pleadings or material to support the finding that it was collusive, the decision of this Court may not have been the same. There being no material to find that the transaction was either collusive or fraudulent, necessarily the transfer being genuine, there was no provision in the Act which extended to invalidate the transaction entered into five years prior to the Act.

65Copy pinpoint65. Section 41 of the Act bars the jurisdiction of a civil court with respect to any matter which is to be settled, decided or dealt with by the authorities under the Act including the Collector and the Tribunal. In this view, the bar under Section 44(B) would be insufficient to deprive the authority of power to declare a sham transfer as such.

66Copy pinpoint66. 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 could impeach the said partition, it would be only the affected parties, viz., the persons who are legitimately entitled to a share in partition. This would be for the reason that they would be affected parties as their legitimate share would be illegally reduced as a result of giving properties by way of a share to those who are not legally entitled to the same, viz., the unmarried daughters. The persons who would be entitled to share in a partition H

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A would be the father and the son besides, no doubt, the wife. Strangely, the wife is not given any share in the partition. Therefore, the argument is that those sharers whose share would suffer diminution by the partition alone could possibly question it. This argument is liable to be rejected. 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 B far cry from maintaining that the Competent 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. C In the facts of this case, viz., the father, the wife and the son.

67Copy pinpoint67. 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 D 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. E

68Copy pinpoint68. Thus, it can be concluded as follows:

i. A transfer or a partition entered into before 26.09.1970, if it is not genuine and is collusive or is a sham transaction, can, in a given case, on materials being present, be found to be so by the Authority F under the Act;

ii. What is contemplated under Sections 10 and 11 of the Act read with Section 8, undoubtedly, is a transfer as defined in Section 8, being a genuine transaction. A fraudulent transaction or a sham transaction if entered into before 26.09.1970, would incur the wrath of Section (3), G and a farce of a partition likewise, bringing about a mock division of property among the sharers, would also incur wrath of Section (3) of the Act. No doubt, even if the transaction is a sham transaction, be it a transfer or a partition, needless to say, it would incur the wrath of Sections 10 and 11 and it would not be necessary to justify the invalidity with any materials if entered into or effected after 26.09.1970.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 981 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

iii. It does not mean that a transaction which is entered into, particularly after the Act came into force, be it a transfer or a partition, and if there are materials and circumstances brought out, which persuades Authorities to hold that it is collusive or a sham transaction and the property did not change the hands, the property would not be liable to be treated as held by the previous owner as on the commencement day and included in the account despite the purported transfer or partition. WHETHER THE PARTITION ALLOTTING SHARES TO THE DAUGHTERS WAS UNNATURAL AND SHAM

69Copy pinpoint69. The further question which arises for consideration is whether in the facts of this case, any interference is called for proceeding on the basis that there is power to find that the transaction is a sham. This question resolves itself into two further questions. Firstly, what is the effect of the Tribunal entertaining the cross-objection by the State when the two elder daughters of Vithaldas, to whom properties were allotted in the partition, were not parties? Secondly, whether the circumstances in which the partition was entered into and the material were sufficient for the High Court to uphold the findings by the Tribunal. Taking the second question first, the very first aspect which stands out is the finding that the partition is unnatural. It is dubbed unnatural for the reason that under the extant Hindu Law, daughters were not entitled to a share. No doubt, in Maharashtra, Section 29A has been inserted in the Hindu Succession Act, 1956 with effect from

1994. It reads as follows: “29A Equal rights to daughter in coparcenary property. — Notwithstanding anything contained in section 6 of this Act— F (i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the G right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: H

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A Provided that the share which a pre-deceased son or a pre- deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share B allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be; C (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other D testamentary disposition; (iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh E Amendment) Act, 1986. The next aspect considered relevant for holding the partition unnatural is that the wife of Shri Vithaldas was entitled in law upon a partition to a share but she is not given any share. The further finding is that Vithaldas continued to be in effective cultivation of the land, and in this regard, the record of rights was relied upon.

70Copy pinpoint70. The further aspect, which has been enlisted in support of its finding, is the fact that the minors were represented by their grandfather though the natural guardian, viz., Vithaldas, was very much alive. It is the case of the appellants that giving a share to the daughter cannot be impugned as done. Under the Hindu Law, daughters were entitled to maintenance and if the share is set apart to the daughters in lieu of same, it could not be questioned. The appellants further contended that the two elder daughters were minors at the time of partition. They attained majority only in the year 1973 and 1975 but before the commencement day.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 983 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

71Copy pinpoint71. There is nothing unnatural if the father cultivates the property on behalf of the daughters. The finding by the Authorities, approved by the High Court, that the daughters did not have the resources to cultivate the land, not only pales into insignificance, but the Authorities/ Courts have not appreciated the law correctly. A BRIEF SURVEY OF CERTAIN ASPECTS OF HINDU LAW B

72Copy pinpoint72. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others13 the case arose under the very Act the Court is concerned with, and therein upon the death of a male leaving behind him his widow, mother and his son [the respondent therein], the High court held that after the death of the Karta the joint family continued C but each one of the three were entitled to a separate unit of ceiling area. This Court took the view that a female member who inherited the interest under Section 6 of the Hindu Succession Act did not cease to be a member of the family. The Court inter alia held as follows: “7. As observed in Mayne on Hindu Law and Usage (1953 D Edn.) the joint and undivided family is the normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. There can be a joint family without a joint family property. At para 264 of the above treatise it is observed thus: E

“264. It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body... For, F coparcenary in the Mitakshara law is not identical with coparcenary as understood in English law: when a member of a joint family dies, ‘his right accresces to the other members by survivorship, but if a coparcener dies, his or her right does not accresce to the other coparceners, but goes to his or her own G heirs’. When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those persons 13 AIR 1985 SC 716 H

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A who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation.”

8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary, A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See Gowli Buddanna v. CIT [(1966) 3 SCR 224 : AIR 1966 SC 1523 : (1966) 60 ITR 293] and Sitabai v. Ram Chandra [(1969) 2 SCC 544 : AIR 1970 SC 343 : (1970) 2 SCR 1] .) A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. (See N.V. Narendranath v. CWT [(1969) 1 SCC 748 : AIR 1970 SC 14 : (1969) 3 SCR 882 : (1969) 74 ITR 190]………………….” (Emphasis supplied) Women were not co-parceners under the extant law. In this regard, the following discussion in Mayne’s Hindu Law and usage, sheds light. “Women not coparceners.- It is obvious that, on the twin principles of a right vested by birth in the male issue only and of unobstructed heritage, the conception of a Mitakshara H coparcenary is a common male ancestor with his lineal

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 985 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

descendants in the male line, and that the female members of A the family who have no vested right by birth and come in only as heirs to obstructed heritage (Sapratibandha Daya) cannot be copaceners, with the male members though, along with the males, or in exceptional cases by themselves, they are members of the undivided family as a corporate body.” B

73Copy pinpoint73. It is to be noticed that partition can be of property which is previously held jointly. Mayne’s of Hindu Law states as follows: “436.Coparcenary property alone divisible.- First the property to be divided by ex vi termini the property which has been previously held as joint property in coparcenary”. C COPARCENARY PROPERTY ALONE IS PARTIBLE

74Copy pinpoint74. In para 442 the learned author has dealt with the persons entitled to a share under the heading Share for women. The following is the discussion in regard to wives. D “453.Shares for women.-The interest of the women of the family, whether wives, widows, mothers or daughters, where a partition took place at the will of others were specially safeguarded by the Sanskrit writers. Wife.-Yajnavalkya says: “If he(father) makes the allotments equal, his wives to whom stridhana has been given by the husband or the father-in-law must be made partakers of equal portions”. Explaining this text, the Mitakshara says: “When the father, by his own choice, makes all his sons partakers of equal portions, his wives to whom peculiar property had not been given by their husband or by their father-in-law, must be made participants of shares equal to those of sons. But if separate property have been given to a woman, the author subsequently directs half a share to be allotted to her: “Or if any had been given, let him assign the half”.”

75Copy pinpoint75. A wife however could not demand a partition. The share of the wife under the Mitakshra law has been dealt with as follows in Mayne’s Hindu Law: “455. Wife – A wife however could never demand a partition during the life of her husband, since, from the time of marriage, she and he are united in religious ceremonies. This is in H

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A accordance with the fundamental rule of Hindu law as stated in the text of Harita as quoted by the writers: “There can be no partition between husband and wife”. Wife’s share under the Mitakshara law.- According to the Mitakshara law prevailing in States other than Madras, a wife is B entitled on a partition between her husband and his sons to a share equal to that of a son; but she cannot enforce a partition. She may either be the mother or the step-mother of the sons. She can sue for her share where there has been a partition and she has not been assigned any share, provided there was no waiver of her rights or acquiescence on her part.” C Women could not enforce partition. This was a right which was conferred upon the males “458. Women cannot enforce partition.-Neither the wife, nor mother nor grandmother is entitled to enforce a partition; the sons D have a perfect right to remain undivided as long as they choose. Any alienation of property made by the coparceners without their consent will therefore bind the wife, mother or grandmother as they do not become owners of any shares till an actual division of the joint estate.”

76Copy pinpoint76. Regarding the rights of daughters, in Mayne’s Hindu Law, it is stated as follows: “461. Rights of daughters. -Where a partition takes place during the life of the father, the daughter has no right to any special apportionment. She continues under his protection till her marriage; F he is bound to maintain her and to pay her marriage expenses, and the expenditure he is to incur is wholly in his discretion. But where the division takes place after the death of the father, the same texts which direct that the mother should receive a share equal to that of a son, direct that the mother should receive a share equal to that of a son, direct that the mother should receive G a fourth share.”

77Copy pinpoint77. 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. “471.Father’s power to effect a partition.-A Hindu father under the Mitakshara law can, it has been held, effect a partition

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 987 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

between himself and his sons without their consent and this is rested on the Mitakshara I,ii,2. This text has been held to apply not only to property acquired by the father himself but also to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se. So also it would seem that he has the power to make B a division when the sons are dead and his grandsons along are living. The power extends not only to effecting a division by metes and bounds, but also to a division of status. In all these cases, the father’s power must be exercised bona fide and in accordance with law; the division must not be unfair and the allotments must C be equal.” THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER

78Copy pinpoint78. In the decision in Annivillah Sundaramya v. Cherla Seethamma D and others 14, the Court was concerned with the gift of 8 acres of ancestral land by a Hindu father to his daughter after her marriage when the family possessed 200 acres. The gift of 8 acres was not unreasonable. In the above scenario it was found that if the father had enforced a partition, he would have admittedly got not less than 100 acres. In Pugaria Vettoramal and another v. Vettor Gounder, Minor, E by his next friend and mother Poochammal and another15, a Division Bench of the Madras High court elaborately considered the matter relating to gifts in favour of daughter of a coparcener. In the said case, in fact, the gift was made by paternal uncle in favour of his niece (brother’s daughter). In the course of its discussion, the court held as F follows: “We have however, no doubt that a gift made by a father to his own daughter or a daughter of an uncle, provided it be of a reasonable amount is valid as against his son and that the question is really covered by authority.” G Thereafter, the question arose about the quantum of the gift involved in the said case. It be noted that the gift was of land worth Rs.400 and the family property at the time of gift was worth Rs.2400/ 14 1911 (21) MLJ 695 15 1912 (22) MLJ 321 H

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A -. Therefore, it constituted one-sixth of the property in the hands of the donor. The Court proceeded to hold as follows: “The question whether the gift should be set aside on the ground of its being excessive presents more practical difficulty. The text of Yajnavalkya in Chapter I, Section 7, PI. 5, .of the Mitakshara B as interpreted by Vignaneswara defines the share of a daughter as one-fourth of what she would be entitled to if she were a son. The Smrithi Chandrika, in Chapter IV, cites a text of Katyayana which says: “For the unmarried daughters a quarter is allowed and three parts for the sons, but where the property is small, the portion is considered to be equal. The author of the Smriti C Chandrika says (Placituin 28): “ The meaning of the fourth or last portion of the above text, para 26, is that where the estate is small the share of each sister is considered by Vishnu and others as being equal to that of a son. Reference has already been made to the observation of Vignaneswara in his commentary on slokas 175 and 176 of Yajnavalkya that it is the duty of a father to provide for his daughters as well as for his sons. The text of Yajnavalkya defining the share of the daughter is no longer legally in force though it would afford a guide in determining whether any particular gift which is impeached is reasonable or not. As observed in the Viramitrodaya in the text cited in Bachoo v. Mankorebai16 the gift should be guided by propriety but not by caprice. It would be hardly right to lay down the hard and fast rule that nothing more than a fourth share of what the daughter would get if she were a son can be given in any case as apparently attempted to be done in Damodar Misser F v. Senabutty Misrain 17. The social condition existing at the time of the gift would be a proper matter to be taken into account; and where the property is very small and the expenses of marriage heavy in the community of the parties, it may not be improper to allot a share equal to that of the son for the expenses G of marriage and for dowry together. At the same time, where the property is very large, worth say several lakhs of rupees, the courts may not be prepared to uphold a gift of the share permissible according to the text of Yajnavalkya. The right of the

16 (1904) 29 Bo.51 H 17 (1882) 8. Cal. 537

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 989 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

daughter not being confined, as pointed out in Rantasami Ayyar A v. Vengidusami Ayyar 18 and Churamon Sahu v. Gopi Sahu I.L.R.19 to have the expenses of her marriage defrayed, it might be reasonable to allot something more than such expenses even where they are comparatively heavy. At the same time, it would not be fair to the sons that the father, after spending a large B amount on the marriage of his daughter, should make a gift of any considerable property to her. It must also be borne in mind that it would be unfair to the daughter that she should be told that her claim has been absorbed by excessive expenditure on marriage contracted by members of the family not for her benefit but to enable the co-parceners to maintain their social prestige. C In Churamon Sahu v. Gopi Sahu (supra), the Calcutta High Court upheld the gift of one-third of the family property on the occasion of the dwiragaman ceremony. The learned Judges observe that the question must be determined with regard to the circumstances of each particular disposition. They refer to a case D reported in 2 Morley’s Digest, 198, and cite the observation of Lord Gifford in that case that it was absolutely impossible to define the extent and limit of the power of disposition because it must depend upon the circumstances of the disposition whenever such disposition shall be made and must be consistent with the law regulating such dispositions. In Anivillah Sundararatnayd E v. Cherla Sitamma20 another principle is indicated. The learned Judges say : “ Here if the father had enforced a partition, he would have admittedly got not less than one hundred acres and it is impossible to say that a gift of 8 acres is unreasonable.” We are unwilling to adopt this test based upon the father’s right F to dispose of what he gets for his own share on partition for deciding the question what disposition he might make while remaining a member of an undivided family. We think it must be left to the court in each case to decide whether the gift is reasonable in all the circumstances under which it is made. In G this case, the donor, at the time of the gift, had only one son, and he was an infant. The share given to the 1st defendant was

18 (1898) 22 Mad.113 19 (1909) ILR 37 Cal.1 20 (1911) 21 MLJ 956 H

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A one-sixth of the whole. It was apparently considered by the donor that the property still left to the family would have time to increase before his son would have to support a family. He died undivided from his son, and apparently never wished to be divided from him. One eighth share of the property would be a suitable portion for the 1st defendant under such circumstances according to B Yajnavalkya’s text. What was given was one-sixth or one-twenty- fourth more, worth Rs. 100. We are not prepared to say that, an excessive portion of the property was given.” (Emphasis supplied)

79Copy pinpoint79. In Annamalai Ammal v. Sundarathammal and Others21, the High Court took note of the fact that there were concurrent findings that the property gifted was a very reasonable portion of the property and the gift was found valid. The question fell for consideration of this Court in the decision reported in Guramma Bhratar Chanbasappa Deshmukh and others v. D Mallappa Chanbasappa and another22. Therein, this Court after an elaborate survey of decisions including the decisions referred to by me, held as follows: - “18. 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 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. 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 21 AIR 1953 Madras 404 22 H AIR 1964 SC 510

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 991 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

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. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one”.

80Copy pinpoint80. 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 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. When a partition took place, however, certain other persons were also entitled to share in the property. It must be remembered that a partition involves separate enjoyment and what was previously jointly held property. A wife of a Hindu while not a coparcener was one such person who was entitled to a share in the partition. But E even when a partition took place, the daughter of a person was not a person who was entitled to any share. In order to appreciate the contentions, it is necessary to advert to the relevant portions of the partition deed dated 31.01.1970: F “Partition deed of immovable property at Rs.500/- Partition deed of the land situated at Mangrul and Babhulagaon Executants: 1. Vitthaldas Jagannath Khathri, age 39 years, G

2. Anilbabu Vitthaldas Khatri, age 4 years,

3. Ku. Shakuntala d/o. Vitthaldas Khatri, age 14 years,

4. Ku. Durgadevi d/o. Vitthaldas Khatri, age 11 years. H

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A 5. Ku. Beladevi d/o. Vitthaldas Khatri, age 8 years. Party No.2,3,4,5 being minors represented by Guardian grandfather Jagannath Ganeshdas Khatri, age 65 years. Occu. Of all: Agriculture, all r/o. Mangrul Navghare, Tq.Chikhali, Dist. Buldhana. B We execute & kept the partition deed as under:- We all are the members of the HUF and party No.2 to 5 are the issues of part No.1 and party No.3,4,5 are the sisters of the party No.2 and party No.2 is the brother of party No.3,4,5. We C have been using our property jointly. Party No.2 to 5 have to take the education and to see that each of them take it freely and to provide for the expenses therefore and to see that each of them will meet the expenses out of their own property and that no dispute took place between them in future, therefore, we are executing and keeping with us this deed of partition. The D property fall on the share of each party is shown in front of his name…. xxx xxx xxx xxx In this way we have partitioned over estate, the property fallen to the share of party have taken its possession and became the E full owner thereof. Now nobody is concerned with the property of others. Out of us for the education and marriage purpose of party no.2 to 5 and for the benefits of our family and for the successful future, we of our free will and consideration executed and kept this deed of partition, on this 31st day of January, 1970. F xxx xxx xxx xxx”

81Copy pinpoint81. To the share of party no.1, namely, late Vithaldas, an extent of 23.01 acres in Sy.No.9 of Bhabulgaon village is set apart. Further, in Sy.No.14 Bhabulgaon village 9 acres out of 35.12 acres is also allotted to Vithaldas. Thus, a total of 32.01 acres is given to him. In G favour of his only son, who is aged 4 years and who is the third appellant before us, an extent of 30 acres 64 ares is seen set apart. The appellant no.1 (eldest daughter), who is the eldest child and who was aged 14 years, was given 17 acres and 23 ares. An extent of 14 acres and 6 ares is set apart to the second appellant before us from out of Sy.No.14 H Babulgaon out of 35.12 acres who is again the other daughter of

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 993 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

Vithaldas and aged 11 years at that time. The fifth party to the partition A deed Kumari Beladevi aged 8 years is given 14 acres and 06 ares from Sy. No.14 Babulgaon out of 35.12 acres. Thus, it can be seen that from the partition deed itself that the extent of land made subject matter of partition was 106 acres. This is apart from the land which was the subject matter of the gift in favour of the wife of Vithaldas who is made B a proforma respondent before this Court.

82Copy pinpoint82. Vithaldas was the karta of a Hindu Undivided Family (HUF). The Coparceners were Vithaldas and his son. Vithaldas, as father, had the unilateral right to partition the joint family property. The law, however, attached a condition to the exercise of such unilateral power that the partition must be fair. Fairness cannot be present when it is made in complete derogation of the extant law relating to share of parties on a partition.

83Copy pinpoint83. The terms of the partition deed have been set out. The first thing that is a striking feature in the partition deed is the exclusion of the wife of Vithaldas. In fact, under the Act as it stood in 1970, Section (8) interdicted a partition by a person who on or after the appointed day (26-01-1962), had excess land till the matter was determined. The word ‘person’ was defined to include a family. Family included a HUF. If the property of 60 and odd acres found held by the wife was reckoned, on 31-1-1970, as the member of family as defined included the spouse, and as the family holding would have crossed 114 acres, the maximum limit in Buldana District, the partition may have been in the teeth of Section (8) as it stood before substitution by Act XXI of

1975. No doubt, I may notice that she was gifted 60 and odd acres by her father and husband from out of the joint property by gift deed dated F 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 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 ares. The daughters together G 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. I have noticed the age of both appellants H

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A nos. 1 and 2 before us. They 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. The circumstances which stand B against the document namely the partition being a genuine transaction are:

1. The age of the children being 4, 8, 11 and 14 years.

2. The wife of the Vithaldas not being given any share.

3. The children being represented by their grandfather as a C guardian when the parents are alive.

4. Allotment 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 ares can by no stretch of imagination be treated as ‘small’ or ‘reasonable’. D While it may be true that after 1994, a Hindu daughter in Maharashtra had been recognized as a coparcener vide Section 29A of the Hindu Succession Act, 1956 and entitled to a share as such, the question to be posed and answered is whether such right existed in 1970 when the partition was entered into. The answer can only be in the negative.

84Copy pinpoint84. No doubt, as held by this Court in the decision supra, it was open to a Hindu to make a gift of a small portion or a reasonable portion of 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.

85Copy pinpoint85. The question in this case is not whether a gift could have been validly made or not by Vithaldas to his elder daughters. It is to be noted that there is no such case expressly set up that what was the effected under the partition was a gift or that Vithaldas intended to make a gift of the properties in question to the elder daughters. Though it is stated in the reply to the cross objection that the nomenclature is immaterial one, what was intended therefrom is clear from the next sentence. “The factum of possession and cultivation is material one”. No case of it being a gift is set up before the Tribunal or the High Court. It is to be remembered that definition of ‘member of family’ under the Act included dependent daughters. In the Special Leave Petition, in ground (I), it is stated as follows: -

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 995 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

“Because the Hon’ble Division Bench has merely confused the whole issue where at Para 9 it has observed that the Vithaldas could have gifted the property to his two daughters i.e. Shakuntala and Durga but that too would not have mattered till the time the said daughters continued to be part of his family. It is submitted that the said observation clearly goes beyond the intention and nature behind the said transfer which, was merely a partition in the lines of a family settlement.” By no yardstick can the circumstances be treated as either legal or natural. I may also notice that in the context of a family arrangement C a Bench of 4 learned Judges in the decision reported in Potti Lakshmi Perumallu v. Potti Krishnavenamma23, inter alia, held as follows: “7. No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a Court of law. But before the court would do so it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the arrangement indicated in the will was acted upon.”

86Copy pinpoint86. I would also think that no acceptable reasons are forthcoming as occasion warranting such a partition apart from its illegal and unfair terms.

87Copy pinpoint87. In Made Couda and Ors. v. Chenne Gouda and Ors.24, the appellant was the uncle of the second defendant who was his nephew (his sister’s son). Under a partition, a share was purported to be allotted to the nephew. The District Munsif found that the nephew got a share as a gift or in consideration of surrender of part of the property to the appellant. The value of the property being more Rs.100/-, whether it was a gift or an exchange. It offended against, the provisions of Transfer of Property Act. The first appellate Court took the view that it was not a gift but a partition and the nephew was made a co-sharer. The learned Judge set aside the findings and remitted the matter back to consider whether any valid title has been acquired independent of 23 AIR 1965 SC 825 24 AIR 1925 Madras 1174 H

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A the point decided in the judgment. The learned Court took the view that a person could not by mere recognition as a co-sharer by another co-sharer acquire title without complying with the provisions of the Transfer of Property Act.

88Copy pinpoint88. In Ponnu and another v. Taluk Land Board, Chittur and B others25, though rights were purported to be conferred upon his son under a partition deed, it was contended before the authority that it may be treated as gift. It is to be noted that to be a valid gift not only there must be registration but there must be attestation by two witnesses. [See Section 123 of the Transfer of Property Act]. It is further relevant to notice that in the said judgment the property was the separate property of the father which undoubtedly, he could gift. The gift under the Kerala Land Reforms Act had the effect of reducing the extent of land from the account of the declarant. In the facts of this case however, apart from the fact that the question which arises is whether the partition was a sham?, It is to be noted that there is no case that the property was the separate property of Vithaldas. 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. Even before this Court it is not maintained that the partition is to be construed as a gift.

89Copy pinpoint89. The question, however, relevant to this case is this. Apart E from the partition deed being unnatural, was it a sham transaction? The finding that the transaction is unnatural apart from raising serious suspicion effortlessly opens the doors to a finding of it being sham. Ordinarily, in the case of sham transaction its terms deceptively disguise the underlying truth. The task become uphill when the transaction appears natural, to prove it to be a sham transaction. But when the transaction itself is unnatural, the task of the court is made lighter.

90Copy pinpoint90. It is true that there is no express pleading in the cross objection that the transaction is sham and that Vithaldas continued to hold the land as on 2.10.1975. In Uttar Chand (supra), this Court, in fact, has pointed out to the lack of pleading to support the finding that transaction involved in the said case was a collusive one. In fact, it may be noticed that under the Act what is contemplated is filing a return by the person or family unit having surplus land followed by an inquiry under Section 14 read with Section 18 and the declaration under

25 H (1981) KLT 780

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 997 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

Section 21. The earlier proceedings which has taken place in this case has not been produced. Be that as it may, the State has filed cross objection in the appeal. The contents of the said cross objection in relation to the partition deed has also been noticed.

91Copy pinpoint91. I would think that in the facts of this case, the finding that there is no transfer of the interest of Vithaldas under the partition deed is what is essentially involved. In facilitating such a finding, the unnatural nature of the partition has played a large part. In the facts, the mere fact that it is not expressly stated that he continued to hold the land or that the transaction was a sham transaction by itself may not be fatal to the case of the State though ideally it should have been mentioned. C The parties have proceeded before the Tribunal and the High Court understanding the purport of the pleadings in the cross objection to be that there is no effective transfer under the partition. THE MATERIALS RELIED ON IN THE ORDER OF THE TRIBUNAL IN REGARD TO THE FINDING ABOUT THE D PARTITION DEED

92Copy pinpoint92. The Tribunal notes that the eldest among the daughters Shakuntala Bai was born on 03.11.1955. The second of the elder daughters Durga Devi was born on 29.08.1957. They were 14 and 12½ years of age on the date of the partition in 1970. Vithaldas continued E to be the owner as the title has not passed by a legally valid instrument. As regards the actual possession in regard to Survey Nos.14 and 12 of Babul Gaon in which the elder daughters were allotted the shares, it was found as follows: “15. As regards the actual possession of S.Nos. 14 and 12 of F Babulgaon, the crop-statements in respect of S.No.14 for the year 1970-71 and 71-72 shows the cultivation of Vithaldas, while during 1972-73 to 74-75 it is shown as jointly cultivated by Vithaldas and his daughter Durgadevi. S.No.12 of Babulgaon is shown as cultivated during 1974-75 by Vithaldas alongwith his daughter Shakultala. The crop statement for the other years have G not been filed by the appellant. It is ludicrous to think that these minor daughters would possess the necessary where withal to cultivate the land independently. I have therefore no hesitation to hold that the appellant Vithaldas was holding S.No.12 area 17 acres 23 Gs and S.No.14 area 14 As 6 Gs of Babulgaon, shown H

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A to have been transferred to his daughters Shakuntala and Durgadevi.” THE ORDER DATED 23.11.2016 PASSED BY THIS COURT AND ADDITIONAL AFFIDAVIT BY THE SON OF VITHALDAS

93Copy pinpoint93. On 23.11.2016, this Court passed an order which reads as follows: “The legal representatives of the deceased appellant¬ Vithaldas Jagannath Khatri appear to have placed reliance upon a document purporting to be a deed of partition of certain agricultural land in support of their contention that they had acquired ownership over the disputed land long before the effective date under the provisions of the Maharashtra Agricultural Land (Ceilings on Holdings) Act, 1961. While a copy of the said document purporting to be a partition deed is on record and has been noticed by the authorities below it is not clear whether the alleged acquisition 2 of rights under the said document was ever reported to revenue authorities in terms of Sections 148 and 149 of the Maharashtra Land Revenue Code, 1966. It is also not clear as to whether the revenue authorities had upon receipt of such a report taken any steps to acknowledge the creation of the alleged rights in favour of the legal representatives of the deceased appellant. The orders under challenge on the contrary suggest that the ownership of the land had continued in the name of the deceased in the revenue records despite the alleged execution of the partition deed. Confronted with this position Ms. Indu Malhotra, learned senior counsel appearing for the appellants seeks a short adjournment to take instruction and place on record material to suggest that the execution of the so-called partition deed and the acquisition of the rights thereunder by her clients was duly reported and accepted in appropriate proceedings envisaged under the land revenue code mentioned above. Copies of the record of rights in relation to land in question with effect from 31.09.1970 till 02.10.1975 shall also be placed on record. Needful shall be done within six weeks.”

94Copy pinpoint94. Pursuant to the same an additional affidavit by son of Late Vithaldas has been filed on 09.03.2017. Thereunder it is inter alia stated that on an application to the concerned office, reply was received to the effect that with regard to the field Survey No.12 and 14 of village Babulgaon as well as field Survey No.64 village Mangrul, that the record from 1970 to 1975 is in a mutilated condition and the mutation register for the period from 1964 to 1978 is not traceable.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE 999 OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

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

95Copy pinpoint95. It is stated further that the name of the son is recorded in the Crop Register for the period 1972 to 1975 as occupant. Certain copies of the Record of Rights from the register of crop prepared under Rule 29 of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance Rules)1971 have been produced. They show inter alia as follows: C Therein, in the year 1973-74 under the column ‘existing occupant’, as regards Survey No.14 is concerned, for a total area of 35 acres and 12 guntas it is Vithaldas who is shown as the occupant. Durga Devi is also shown as occupant as against Sy.No.14 in respect of 14.29 H. Bela Devi, the youngest daughter is also shown as occupant. Both are D shown as minor and their guardian, the grandfather. The same is the position in regard to the year 1974-1975. Still further it is shown likewise for the year 1975-1976. The same position is shown both before and after the consolidation proceedings in regard to Survey No.12. For the year 1972-1973 in regard to 17 acres and 23 guntas.,Shankuntala Bai E (the eldest daughter) was shown under the head ‘Name of the existing occupant’ along with Vithaldas Jagannath S.O.. Even in the Crop Register 1973-1974, the name of the occupant is shown as Vithaldas Jagannath for minor Shakuntala Bai Vithaldas. It is to be noted that going by the date of birth of Shakuntala Bai as noted by the Tribunal F as on 03.11.1955, she became major on 03.11.1973, Still she is shown as a minor and her father is shown as occupant on her behalf. In regard to 17 acres and 23 guntas for 1974-1975 under the name of existing occupant, the following is noticed-

1. Vithaldas Jagannath, G

2. Shakuntala Bai Vithaldas through the guardian Jagannath. Two features may be noted.

96Copy pinpoint96. The first occupant is shown as the father. This is despite the fact that on 03.11.1973 itself Shakuntala Bai had even already H