Back
High Court Of Calcutta
D. K. SETH, S. K. GUPTA
RITASHREE BASU - Appellant
Versus
STATE OF WEST BENGAL - Respondent
F. M. A. 201 Of 2003
Decided On : 08/16/2004
LAND REFORMS - Vesting of Land - Deed of Gift - Validity - Acceptance - Appointment of Guardian - Sub-soil Right - Retention of Land in Form 'b' - Effect.
Fact of the Case:
A father executed a registered deed of patta settling certain lands in favor of his 5-year-old daughter represented by her mother and guardian. The father included the same land in his return submitted under the West Bengal Estates Acquisition Act (WBEA Act) and retained it in his name. The land was recorded in the R.S. record-of-rights in the name of the daughter. The daughter was married before the family ceiling introduced under the West Bengal Land Reforms (Amendment) Act, 1969 became effective.
Finding of the Court:
The deed of gift was acted upon when the mother of the daughter was appointed as the guardian of the minor's property in a proceeding under Act VIII Case No. 44 of 1955. The retention of the sub-soil right by the father did not affect the transfer of the surface right. The appointment of the mother as the guardian of the minor's property was not invalid as the father had an interest adverse to that of the minor. The inclusion of the land in the father's return in 'b' Form under the WBEA Act could not have the effect of revoking the deed of gift.
Issues: 1. Whether the deed of gift was acted upon? 2. Whether the retention of the sub-soil right by the father affected the transfer of the surface right? 3. Whether the appointment of the mother as the guardian of the minor's property was invalid? 4. Whether the inclusion of the land in the father's return in 'b' Form under the WBEA Act could have the effect of revoking the deed of gift?
Ratio Decidendi: 1. The deed of gift was acted upon when the mother of the daughter was appointed as the guardian of the minor's property in a proceeding under Act VIII Case No. 44 of 1955. 2. The retention of the sub-soil right by the father did not affect the transfer of the surface right. 3. The appointment of the mother as the guardian of the minor's property was not invalid as the father had an interest adverse to that of the minor. 4. The inclusion of the land in the father's return in 'b' Form under the WBEA Act could not have the effect of revoking the deed of gift.
Final Decision: The appeal was allowed. The order of the Revenue Officer and the learned Single Judge were set aside. A mandamus was issued declaring that the lands transferred by virtue of the patta dated 23rd March, 1953 in favor of the appellant were acted upon and were valid. A writ of prohibition was issued restraining the respondents from disturbing and interfering with the peaceful possession of the land by the appellant.
( 1 ) IN this case the father of the appellant Ranjit Pal Chowdhury executed a registered deed of patta on 23rd March, 1953 settling certain lands (16. 64 acres) in favour of her daughter who was then 5 years old represented by her mother and guardian. This document included the present lands in question measuring about 3. 64 acres recorded as orchard (Bagan ). In the return submitted by Ranjit Pal Chowdhury in 'b' Form under the West Bengal Estates acquisition Act (WBEA Act), the entire 16. 64 acres of land settled in favour of ritashree Pal Chowdhury was retained by her father Ranjit Pal Chowdhury. On the strength of the retention, the land was recorded in the R. S. record-of-rights in the name Ritashree Pal Chowdhury. Mr. Mukherjee submits that ritashree Pal Chowdhury was married on 12th December, 1970 (page 65 of the supplementary Paper Book); viz : before the family ceiling introduced under the West Bengal Land Reforms (Amendment) Act, 1969 became effective i. e. , 15th February. 1971.
( 2 ) IT appears that a proceeding under section 57 read with section 44 (2a)under the WBEA Act was initiated against Ranjit Pal Chowdhury being Case no. 193 of 1968. In the said proceeding, the record-of-right was corrected and the land was recorded within the estate of Ranjit Pal Chowdhury on the ground that the deed executed by Ranjit Pal Chowdhury in favour of Ritashree Pal chowdhury was not acted upon. Mr. Mukherjee contends that this proceeding was initiated without any notice to the appellant.
( 3 ) IT appears that a proceeding being Act VIII, Case No. 44 of 1955 was initiated before the Court of the Learned District Judge, Nadia by the mother of Ritashree for her appointment as guardian of the property of the minor. By an order dated 26th August, 1955, this application was allowed and the mother of Ritashree was appointed as guardian of the property of the minor (page 27 of the paper book ).
( 4 ) THUS, it appears that the said deed executed on 23rd March, 1953 was acted upon as back as in 1955. Nothing has been produced before us to show that the Case No. 44 of 1955 was considered in the said section 44 (2a)proceedings under the WBEA Act. In any event the authority under section 44 (2a) is quasi-judicial authority and it has no jurisdiction to sit on appeal on an order passed by a competent Civil Court having jurisdiction. Once the Civil court has appointed the mother as guardian in respect of the property of the minor assigned under the deed dated 23rd March, 1953, it clearly shows that the gift was accepted and the deed was acted upon. Therefore, the ground that the deed was not accepted nor acted upon, on which the record was corrected and which was the foundation of the proceeding under section 44 (2a), is non est. As such the decision in the proceedings under section 44 (2a) is void and a nullity.
( 5 ) THEREFORE, the property has to be treated at the hands of Ritashree Pal chowdhury. If Ritashree was not married before 15th February, 1971, the land could have been vested in the proceeding under section 7 (A) being 7/naba/suo moto/82 against Ranjit Pal Chowdhury. But Ritashree having been married on 12th December, 1970 before 15th February, 1971, this land cannot be treated as part of the estate of the Ranjit Pal Chowdhury. This is to be treated as the land of the Ritashree. Therefore, this land cannot be vested even if notices are served upon Ritashree or upon Ranjit Pal Chowdhury.
( 6 ) IN the circumstances, the order of vesting cannot be sustained and is hereby quashed. The land shall be retained at the hands of Ritashree unless ritashree and her family hold any land in excess of the ceiling under the West bengal Land Reforms (Amendment) Act, 1969.
( 7 ) THIS appeal is, thus, allowed. No order as to costs.
( 8 ) AT this stage Mr. Bose submits that he wants to make some more submission relying on some records, which he expected to be sent to him very soon. The matter is, therefore, treated as heard-in-p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
