1999 Supreme(Guj) 510

Gujarat High Court
Judgename :D.C.Srivastava
KHALIFA JUSAB SHER MOHMED - Appellant
Versus
STATE - Respondent
S.C.A. 7837 of 1996
Decided On : 09/29/1999

Headnote:Gujarat Agricultural Land Ceiling Act, 1960 — Secs. 2(16) & 6(3B) — Additional benefit under — Admissibility — In order to claim additional benefit two requirements need to be fulfilled (1) Number of family members should exceed five (ii) And the persons so exceeding five in number should fall in one of the three sub-clauses of the provision — From the admission made in memo of revision preferred before Tribunal & Zerox copy of the Will filed with it, it is clear that the petitioner got the land under Will from his maternal uncle & thus other persons were excluded — There is no evidence to support that as alleged two brothers & four sisters were also beneficiaries under the Will — They never appeared to claim any such benefit nor they were impleaded as party by petitioner in the proceedings — Petitioner is therefore owner of impugned land within the meaning of Sec. 2(20) & consequently could not hold land in excess of ceiling area i.e. 54 Acres — Petitioner did got names of his brothers & sisters entered into revenue record after the appointed day but it could only be considered as an action to frustrate the provisions of the Act — Authorities therefore did not commit any illegality in excluding the claim of the two brothers & four sisters of the petitioner — Further contention on behalf of petitioner that Authorities did not consider properly, the entries in the ration card showing names of his family member is also without force — Ration card is not conclusive evidence of the number of family members nor it is clinching evidence regarding ages of the persons whose names are found in the ration card — Even if inconsistance averment made in ration-card is analysed the family member of petitioner do not exceed five to claim any additional benefit of Sec. 6(3-B) — Court found that Authorities below have not committed any error in calculating the surplus land with petitioner.

       A bare perusal of this sub-section makes it clear that in order to avail of the benefit of enlargement of the ceiling area two conditions must be satisfied, viz. (i) that the family should consist of more than five members and (ii) and it should have amongst it the categories of members mentioned in the three sub-clauses. If a family does consist of more than five members, but not amongst it any of the members mentioned in the three sub-clauses it will not be entitled to the benefit of enlargement of the ceiling area. The benefit of enlargement of the ceiling area will be available only when the family consists of more than five members and amongst them are members belonging to the categories mentioned therein.

       [Para 8]

       The word family has not been defined under the Act. The joint family appearing in Sec. 6(3-B) has been defined under Sec. 2(16) of the Act which means an undivided Hindu family and in the case of other person group or unit the members of which by custom or usage are joint in estate or residence. Thus, from this definition of the word joint family it means in cases of Hindus undivided Hindu family and for other persons it means a group or unit, the members of which by custom or usage are joint in estate or residence. The petitioner is a Mahomedan and as such concept of joint Hindu family is not applicable to this case. If he is considered to be other person within the meaning of Sec. 2(16) of the Act it had to be established by him that under the custom or usage the other members were joint in estate or residence on the relevant date, namely 1.4.1976. From the three impugned judgments it appears that there was no pleading to this effect. This ground was also not taken specifically in the writ petition.

       The Tribunal has observed that the land has been entered vide entry No. 357 dated 2.6.1970 in the record of rights in the name of petitioner as having heriditory character. However, Senior Revenue Clerk on 4.7.1971 made entry No. 11 for hariditary and certified for entering the names of six heirs. Subsequently, through entry No. 409 dated 1.3.1972 all the remaining heirs had withdrawn their rights from the land in question and hence the same was registered in the name of the petitioner. It is also mentioned that only the name of the petitioner was entered. Annexure : D to the writ petition is Memo of Revision preferred before the Tribunal on which the impugned judgment was rendered by the Tribunal. It is mentioned in this Memo that the land in question was given to the applicant by his maternal uncle Khalifa Janmohmed Valimohmad by Will. The zerox copy of the Will was also filed. The name of petitioner was first entered in the revenue Record and thereafter the petitioner got this land entered in the joint names of his two brothers Khalifa Lalmohmed Shefmohmed and Khalifa Ramzan Shermohmed and four sisters Khatabai, Fatamabai, Jenubai and Aminabai and thus got the entry made in joint names of seven persons.

       [Para 11]

       From this admission it is clear that the petitioner got the land under Will from his maternal uncle. Thus other person were excluded. It is not shown from the record that the two brothers and four sisters were also beneficiaries under the Will. Thus, on the basis of the Will the name of the petitioner alone could be entered in the record of right and subsequent action of getting the name of his two brothers and four sisters was unjustified and uncalled for. More over this action of getting the entry in joint names of seven persons was taken on 4.7.1971 i.e. after the prescribed date, namely, 24.1.1971. As such the entry dated 4.7.1971 has no relevance and it will be deemed to be an action to frustrate the provisions of the Act. If the petitioner got the land through Will from his maternal uncle he alone will be considered as land holder or owner within the meaning of Sec. 2(20) of the Act. He cannot be said to be the tenant of any person thereof. Comsequently under Sec. 6(1) of the Act the petitioner could not hold land in excess of the ceiling area. Since the ceiling area applicable to the petitioner is 54 Acres, he can not hold land more than ceiling area.

       [Para 12]

       In the absence of explanation how the number of family members increased in the ration card from 8 to 10 no weight can be attached to the ration card. If there were only 8 members in the family of the petitioner and in the ration card it is shown that the petitioner had three minor sons and one minor daughter besides himself and his wife, it can be said that there were in all six members in the family of the petitioner and not eight. Out of six persons one daughter aged one year could not be born on 1.4.1976. Likewise the minor son aged 3 years shown in the ration card of 1981 could not have been born on 1.4.1976. If these two minors are excluded from consideration then there could be only four members in the family of the petitioner, namely, himself, his wife and two minor sons aged 7 & 10 years who could have been alive on the specified date i.e. on 1.4.1976. Thus, if family members of the petitioner did not exceed 5, then no further benefit of Sec. 6(3-B) of the Act could be given to the petitioner. Consequently it is difficult to accept the contention that on facts as well as in law the authorities below did not properly appreciate the provisions of Sec. 6(3-B) of the Act.

       [Para 14]