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2020 Supreme(SC) 182
SUPREME COURT OF INDIA
R. F. Nariman, S. Ravindra Bhat, V. Ramasubramanian, JJ.
VITHALDAS JAGANNATH KHATRI (DEAD) THROUGH SMT. SHAKUNTALA
ALIAS SUSHMI & ORS. – Appellants
Versus
THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS. – Respondents
CIVIL APPEAL NO. 6006 OF 2009
Decided On : 19-02-2020
For the Appellant(s) :Krishnan Venugopal, Anish Gupta, Adarsh Tripathi, Deepanshi Ishar, Shivender Singh, Nikhil Kandpal, Ajay Kumar Talesara, Advocates
For the Respondent(s):Rahul Chitnis, Aaditya A. Pande, Sachin Patil, Advocates
IMPORTANT POINT
Collector’s jurisdiction under Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 does not go to extent of declaring a registered partition deed that is made before cut-off date as being sham.
Headnote:
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 – Sections 10, 18 and 33 – Determining ceiling area of family unit – Under Section 11 of 1961 Act, where any land held by a family is partitioned after cut-off date of 26.09.1970, partition so made shall be deemed, unless contrary is proved, to have been made in anticipation of, or in order to avoid or defeat, Amending Act of 1972 and shall accordingly be ignored – However, if contrary is proved on facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after cut-off date, person affected would be out of clutches of Section 10 and/or Section 11 of 1961 Act – In present case, partition deed, as well as its registration, is prior to the cut-off date – Elder daughters are affected by virtue of partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to appeal so that they could have made arguments in favour of legal validity of partition deed – This opportunity being denied to them, is also fatal to appellate authority’s order which has wrongly been upheld by Single Judge and Division Bench of Bombay High Court – Appeals are provided to Maharashtra Revenue Tribunal against a declaration or part thereof made under Section 21 of 1961 Act – Persons who would be aggrieved by such declarations can only be person or family unit whose ceiling area is determined or landlord to whom possession of land is to be restored or right, title and interest of person or family unit whose land is to be forfeited to State Government – Collector’s jurisdiction under 1961 Act does not go to extent of declaring a registered partition deed that is made before cut-off date as being sham – Impugned judgment of Bombay High set aside and judgment of Sub-Divisional Officer restored. (Paras 8, 16, 20, 21, 31 and 32)
Facts of the case:
A partition deed dated 31.01.1970 (duly registered on 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatri and his minor son and three minor daughters. In terms of this document, the agricultural land of the Hindu Undivided Family (HUF) is sought to be divided by mentioning that parties two to five - who are the four children of Vithaldas - have to be provided expenses for their education and marriage, which will be borne out of the separate property allotted to each. An earlier partition deed was executed between Vithaldas and his father Jagannath on 20.01.1955. Separate provision was made in favour of the wife of Vithaldas by means of a gift deed of land in her favour.
Findings of the Court:
It is not possible to state that wherever the expressions “transfer” and “partition” occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word “genuine” is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be “ignored”.
Result : Appeal allowed.
JUDGMENT
R.F. Nariman, J.
1. This appeal has come to us owing to a difference of opinion between Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgment dated 29.08.2019.
2. The brief facts necessary to appreciate the controversy in this appeal are as follows: a partition deed dated 31.01.1970 (duly registered on 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatri and his minor son and three minor daughters. In terms of this document, the agricultural land of the Hindu Undivided Family (HUF) is sought to be divided by mentioning that parties two to five - who are the four children of Vithaldas - have to be provided expenses for their education and marriage, which will be borne out of the separate property allotted to each. An earlier partition deed was executed between Vithaldas and his father Jagannath on 20.01.1955. Separate provision was made in favour of the wife of Vithaldas by means of a gift deed of land in her favour.
3. At this stage, it is necessary to set out certain provisions of ‘The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961’ (hereinafter referred to as the “1961 Act”). Section 2(4) of the 1961 Act defines ‘appointed day’ as meaning the day on which the 1961 Act comes into force, which is 26.01.1962. Section 2(6A) defines ‘commencement date’ as meaning the 2nd day of October, 1975. Section 2(11) defines ‘family’ as follows:
“(11) "family" includes, a Hindu undivided family, and in the case of other persons, a group or unit, the members of which by custom or usage, are joint in estate or possession or residence;”
Section 2(11-A) defines ‘family unit’ as follows:
“(11-A) "family unit" means a family unit as explained in section 4;”
4. By Section 3, no person or family unit shall, after the ‘commencement date’, hold land in excess of the ceiling area, as is determined in the manner provided. By Section 4(1), all land held by each member of a family unit, whether jointly or separately, shall, for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. The explanation defines ‘family unit’ as follows:
“Explanation.- A "family unit" means,-
(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or
(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or
(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.”
5. Section 5 then fixes the ceiling area. Section 8 deals with land held in excess of the ceiling area on or after the commencement date. Section 9 is a restriction on acquisition of land in excess of the ceiling area on or after the commencement date. Section 10 is important and is set out hereunder:
“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.
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 provisi
