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GAUHATI HIGH COURT
J.N.Sarma, J.
Dhiren Chakravorty -Appellant
Versus
State of Assam -Respondent
Civil Rule Nos. 35 and 1205 of 1989
Decided On : 22-09-1995
ASSAM FIXATION OF CEILING ON LAND HOLDINGS ACT, 1956 - SECTION 4 - FAMILY SETTLEMENT - VALIDITY - DAYABHAGA LAW - TRANSFER OF PROPERTY - MODES OF TRANSFER - SALE, GIFT, EXCHANGE - RELINQUISHMENT - FAMILY ARRANGEMENT - ANTECEDENT TITLE - PARTITION - INDIVIDUAL RIGHT - SONS' RIGHT UNDER DAYABHAGA LAW.
Fact of the Case:
Two writ petitions challenging orders passed in ceiling cases. In Civil Rule No. 35 of 1989, the petitioners sought to quash orders dated 25.2.77, 19.9.88, and 29.10.88, passed in ceiling cases. In Civil Rule No. 1205 of 1989, the petitioners sought to quash an order dated 18.11.85 and the order of revision application passed by the Secretary, Govt. of Assam, Revenue Department. The common question of law raised in both cases was whether a family settlement or Bibhagnama dated 13.6.70, executed by the father of the petitioners in Civil Rule No. 35 of 1989, was valid in the eye of law.
Finding of the Court:
1. The family settlement or Bibhagnama dated 13.6.70, executed by the father of the petitioners in Civil Rule No. 35 of 1989, was not a valid family settlement or family arrangement. 2. The sons had no share to the property and by this so-called family arrangement no right, title, and interest could be passed to the sons. 3. The sons are not the shareholders in the property of his father because the family is governed by the Deyabhaga School of Hindu Law. 4. Under the Dayabhaga Law, the father has the absolute right and power to dispose of the property by sale, gift, or otherwise. 5. The distribution of the land made by the father in Civil Rule No. 35 of 1989 and made by the mother of Civil Rule No. 1205 of 1989 cannot be deemed to be a valid transfer in the eye of law.
Issues: 1. Whether the family settlement or Bibhagnama dated 13.6.70, executed by the father of the petitioners in Civil Rule No. 35 of 1989, was valid in the eye of law. 2. Whether the distribution of the land made by the father in Civil Rule No. 35 of 1989 and made by the mother of Civil Rule No. 1205 of 1989 can be deemed to be a valid transfer in the eye of law.
Ratio Decidendi: 1. A family settlement or family arrangement is based on the assumption that there is antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is. 2. A family arrangement is in no sense a transfer of property, for no right vested or contingent is conveyed by one party to another. 3. The arrangement proceeds upon the assumption that one or other claimant has an antecedent title to the property in whole or in part or in equal proportion and the entire claim rests not upon the transfer of a right but upon the recognition of a claim. 4. Under the Dayabhaga Law, the sons do not acquire any interest by birth in ancestral property, their rights arise for the first time on the father's death. 5. On the death of the father, they take the property as is left by him whether separate or ancestral as heirs and not by survivorship. 6. Since the sons do not take any interest in ancestral property in their father's lifetime, there can be no coparcenary in the strict sense of the world between a father and son. 7. Under the Dayabhaga Law, the father has the absolute right and power to dispose of the property by sale, gift, or otherwise.
Final Decision: The writ applications were dismissed.
2. In Civil Rule No.35 of 1989, the prayer has been made to quash the orders dated 25.2.77 (Annexure II), order dated 19.9.88 (Annexure IX) and order dated 29.10 88 (Annexure VIII). All these orders were passed in ceiling cases. These Annexure II, IX and VIII are quoted below:
xxxx xxxxx xxxx
3. In Civil Rule No. 1205 of 1989 the prayer has been made to quash the order dated 18.11.85 Annexure II and the order of revision application passed by the Secretary, Govt. of Assam, Revenue Department, Annexure II to the writ application, They are quoted below:
xxxx xxxxx xxxx
4. The Assam Fixation of Ceiling on Land Holdings Act, 195 6 (hereinafter called the Act) was enacted for fixation of ceiling on land holdings. The first ceiling was fixed at 150 bighas per family and the Act of 1956, provided that the excess land of existing holdings may be acquired by the State Govt. and the method of payment of compensation to the persons holding the land has been clearly provided. It was also provided in the Act that the excess land so acquired will be settled with landless person (including tenants) who may be in occupation of land provided certain conditions are satisfied. The Act also imposes ceiling of future acquisition of land that may be retained for personnal cultivation by the land owner. By the Amendment Act, 1971 the ceiling area was reduced to 75 bighas from 150 bighas. By the subsequent Amendment Act the further ceiling limit of land holding was reduced to 50 bighas. The law as on today stands is section 4 of the Act, and section 4(1) relevant for the purpose of these two cases are quoted below:
"4. Ceiling on existing holding : (1) Notwithstanding anything to the contrary in any law, custom or agreement no person shall be entitled to hold, as owner, tenant or mortgagee in possession, land which exceeds the limit of 50 bighas in the aggregate and this limit of 50 bighas shall be applicable to the aggregate of the lands held individually by the members of a family or jointly by some of all the members of such a family.
Provided that where such person hold 'orchard' land the aforementioned limit shall be increased by the actual area of orchard subject to a maximum of 4 bighas over the limit of 50 bighas mentioned above."
5. The family has been defined in section 3 (d) of the Act and that is quoted below:
"3. (d) 'Family' means a family consisting of any one or more or all of the following namely:
(1) husband, (2) wife, (3) minor children, and also includes a joint family.
Explanation: 'Joint family' means a family of which the members are descendants from a common ancestor and have a common mess and shall include wife or husband, as the case may be, but shall exclude married daughters, married sons and their children :
Provided that a family consisting of father and/or mother, sons and/or unmarried daughters holding lands jointly shall be presumed to be joint in spite of any h one of more having a separate mess."
6. Person has been defined in section 3 (j) and that is quoted below:
"3. (j) 'Person' includes an individual, a family, a joint family a trustee, a company, a body corporate, a partnership firm, a society or an association of individuals whether incorporated or not."
7. The brief facts of Civil Rule No.35 of 1989 are as follows : The three petitioners named in this writ application and the respondent Nos.6, 7 and 8 are all sons of late Dharmakanta Chakraborty who expired on 12.2.86. All the six brothers individually owned the properties. The petitioner No. 1 Shri Dhiren Chakraborty owns and possesses 12 bighas 2 kathas 2 lechas of land which had been mutated in his name about 10 years back. The petitioner No.2 Shri Bhabani Chakraborty owns and possesses 7 bighas 4 kathas 1 lecha la
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