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1987 Supreme(Bom) 101
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.S. Deshpande, J.
Ashokchand s/o Manakchand Tated others .... Petitioners.
Versus
State of Maharashtra .... Respondent.
Writ Petition No. 1494 of 1983, decided on 5-3-87.
Advocates appeared :
S.N. Kherdehar, Sr. A., for petitioners.
V.V. Naik, A.G.P., for respondents.
Headnote:MAHARASHTRA AGRICULTURAL LANDS (CEILING ON HOLDINGS) ACT, 1961
Section 3 (2)-Surplus land-Contention that Section 3 (2) of Ceiling Act could not be given any effect on account of its inconsistency with the provisions of Hindu Succession Act could not be accepted.
Under the first paragraph to sub-section (2) all land held by a person, or as the case may be, a family unit shall notwithstanding, anything contained in any other law for the time being in force or usage, be deemed to be surplus land, and has to be dealt with in the manner provided for Surplus land. Sub-section (2) therefore, excludes the application of any other law including the Hindu Succession Act to the extent of the inconsistency, However, what is overlooked is that the succession is not held in abeyance and the vesting is not postponed. The vesting would not be postponed even under the provisions of Section 3 and all the heirs would be entitled to succeed, but subject to the consequences which flow from the land belonging to the propositus being declared surplus under the provisions of the Ceiling Act. Proceedings would not become infructuous and would not have to be dropped if such person dies before a notification containing the declaration regarding surplus land held by him is published in the Official Gazelle under Section 21 of the Act, and possession of such surplus land is taken over by the concerned authorities. In such a case the proceedings have to he continued and the surplus land in the hands of the tenure holder as on the appointed day should be determined and taken possession of in accordance with law. The heirs of the tenure holders entitled to participate in the proceedings representing the estate of the tenure-holder, but they would be entitled as heirs only to such land that may remain after surrendering the surplus land as may be determined under the Act. In view of this clear proposition it is difficult to accept the contention of the Counsel that subsection (2) of Section 3 of the Ceiling Act cannot be given any affect on account of its inconsistency with the provisions of the Hindu Succession Act.
Section 4 (1) - Whether there widows of the deceased constitute a family unit under Explanation to Section 4 (1)-Held, merely on account of omission of words "if any" in clauses (b) and ( c), it could not be said that the surviving Spouses in the absence of minor sons and minor unmarried daughters, could not form a family unit.
Where three widows of the deceased who did not have any minor son or daughter were sought to be dealt with on the footing that the lands individually held by them were liable to be clubbed together on the basis that they constitute a family unit under the Explanation to Section 4 (1) of the Ceiling Act and the Judge took the view that the word "and" in clause (b) under the Explanation to Section 4 (1) of the Ceiling Act, cannot be read disjunctively because it appears that when the Legislature intended that the conjunction "and" should be read disjunctively, it added words "if any" at the end. The result of the use of the words "if any" is that even if there is a person and his spouse as found in clause (a) of the Explanation without minor sons/or minor unmarried daughters they will constitute a family unit. Where however any spouse is dead in which situation clause (b) is attracted, the words "if any" having deliberately been omitted the only conclusion is that for constituting a family unit the surviving spouse or spouses must have either minor son or sons or minor unmarried daughter or daughters and the three widows together therefore were not members of a family unit within the meaning of the Explanation to Section 4 (1) of the Ceiling Act. Firstly, this decision goes against the view which the counsel is canvassing in respect of clause (a) because even in that case the construction on clause (a) was that the words. "If any" cover both minor sons and minor unmarried daughters. We are not concerned with the interpretation put on clause (b) by the Judge for deciding the present case, but it appears to me that merely on account of omission of the words "if any" in clauses (b) and (c), it cannot be said that the surviving spouses in the absence of minor sons and minor unmarried daughters, cannot form a family unit.
Section 4 (1) (a), (b) and (c)-Persons who would constitute a family unit-Explained that words "if any" did not appear in clauses (b) and (c) not because of any deliberate omission, but because those words were unnecessary while providing for situations mentioned in clauses (b) and (c).
Clause (a) of Explanation to Section 4 (1) refers to all the persons who would constitute a family unit, while clause (b) refers to the circumstances where one of the spouses is dead and clause (c) relates to the case where all the spousal are dead. The Counsel urged that in the three clauses there is reference to minor sons and minor unmarried daughters, and in his submission the underlying idea is that there cannot be any family unit without minor sons or minor unmarried daughters, and separate provision has been made in respect of major Sons who would be entitled to the share in the joint property. While elaborating his argument in respect of clause (a) he urged that the words "if any" appearing after minor sons and minor unmarried daughters, would qualify the words "minor unmarried daughters" and not "minor sons". According to the counsel the reason would be that minor unmarried daughters would not be entitled to a share in the joint property and, therefore, there case would have to be dealt with on a different footing. Though one stage he suggested that the words "if any" were superfluous, he did not pursue that argument further realising that no words in a statute can be held to be redundant, if they are capable of being given their full meaning and the expression "if any" cannot, therefore, be regarded as a mere surplus age, Giving the words used in clause (a) their plain meaning, it appears that the words "if any" qualify both minor sons and minor unmarried daughters, in view of the punctuation mark preceding the words "if any".
The Counsel however, urged that the words "if any" are absent in clauses (b) and (c) and omission was deliberate. It is difficult to agree with the counsel this point because what a family unit means is apparent from clause (a) which refers to all its constituents while clauses (b) and (c) relate respectively to where one or more spouses and all the spouses are dead and the unit continues with t he surviving spouses or spouse and the minor children or with only the minor children. The words "if any" do not appear in clauses (b) and (e) not because of any deliberate omission as is urged by the counsel, but because those words were unnecessary while providing for the situations mentioned in clauses (b) and (c).
2. Manakchand Pannalal Tated filed a return under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (Ceiling Act, for short) as amended. His family unit comprised himself and his wife Madanbai. There was a partition between Manakchand, Madanbai and their four sons and five daughters on October 13, 1956, before the Ceiling Act came into force, and in that partition Manakchand had got on his share 62 acres 19 gunthas of land while Madanbai got 87 acres 16 gunthas of land. Manakchand died on 31-7-1977 and the proceedings continued after his death. The Surplus Lands Determination Tribunal passed an order on 21-2-1979 holding that the family unit of Manakchand and Madanbai held land to the extent of 161 acres 6 gunthas out of which an area of 9 acres 38 gunthas was treated as Potkharab. The family unit was allowed to retain 54 acres of land in addition to Potkharab land and 87 acres 8 gunthas was declared as surplus. An appeal was taken against this order to the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal found that in all 18 acres 9 gunthas of land should have been excluded as Potkharab and it accordingly delimited 78 acres 37 gunthas as surplus.
3. Two points were raised by Shri Khardekar the learned Counsel for the petitioner in this Court on the basis of the fact that Manakchand died on 31-7-1877 and Madanbai died on 11-6-1982 an that at the time of their deaths there were neither minor sons nor minor daughters who could have formed a family unit along with them, the shares of the sons and daughters having already been given to them in the partition dated October 13, 1958. He firstly urged that in view of the Explanation to section 4 of the Ceiling Act, there could be no family unit in the present case because there were no minor sons nor minor unmarried daughters and it was necessary that such minor sons and daughters exist for the formation of a family unit under Clause (a) of explanation to section 4(1) of the Ceiling Act. As a sequel, it was urged that the holdings of Manakchand and Manadanbai should be treated separately and each should be allowed to hold 54 acres of land which is the maximum which can be held under the Ceiling Act and the remaining land only should be declared as surplus Another contention raised was that the second paragraph of sub-section (2) of section 3 of the Ceiling Act cannot have any effect because succession cannot be held in abeyance and the heirs of the deceased holders would be entitled immediately upon their deaths to hold the properly of the deceased which would vest in them.
4. I would reproduce sub-section (1) of section 4 of the Ceiling Act because it is necessary to do so for setting out the contentions of Shri Kherdekar :
"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,
Explanation.---"family unit" means :---
(a) a person and his spouse (of more than one spouse) and their 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."
Under Clauses (11) of section 2 family" includes, a Hindu undivided family, and in the case of other persons, a group unit the members of which by custom or usage, are joint in estate of or possession or residence; and under Clause (11-A) "family unit" means a family unit as explained in section 4. In fairness to Shri Kherdekar it must be mentioned that Shri Kherdekar pointed out that a learned Single Judge of this Court in (Nirmalabai v. State of Maha
