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1983 Supreme(Raj) 112
Rajasthan High Court
Dwarka Prasad, J.
Gopal Singh - Appellant
Versus
State of Rajasthan - Respondents
S.B. Civil Writ Petition No. 955 of 1974
Decided On : May 12, 1983
A.L. Mehta, for Petitioner; Niyajuddin khan, Addl. Govt. Advocate.
Headnote:(a) Tenancy Act—Sec. 30-B—Clubbing of land standing in the name of wife— Wife constitutes a member of family along with her husband and her dependent children—Clubbing, held, rightly done.(b) Tenancy Act—Sec. 30-B—Family—Definition thereof.(c) Tenancy Act—Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963—R. 17 (1), (2) and (4)—Jagir Land—Ancestral property—Rule of primogeniture not applicable after resumption of Jagirs—Becomes joint family property—Members of joint family are entitled to seek partition.
The definition of family as given in S. 30-B of the Rajasthan Tenancy Act, is that a family consisted of a husband and wife, their children and grand children, being dependent on them and the widowed mother of the husband, so dependent. Thus, the wife constitutes a member of the family along with her husband and their dependent children and grand-children. The land standing in the name of the wife of Gopal Singh was, therefore, rightly clubbed along with the land standing in the name of Gopal Singh himself in accordance with the provisions of Rule 17 (1) of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 (hereinafter referred to as the Ceiling Rules), while calculating the extent of land for the purpose of determining the ceiling area applicable to the petitioner. Any land held individually by a member of the family shall be deemed to be held by the family, according to Rule 17 (1) of the Ceiling Rules and as such the land standing in the name of the wife of Gopal Singh must be deemed to be held by the family, consisting of Gopal Singh and his wife and dependent children and grand-children. (Para 5)
The Jagir was an ancestral property and the Jagirdar was holding the Jagirdar as property of the Hindu undivided family, with a rider that the members of the family could not get a partition effected because of the fact that by custom the Jagir property was impartible in nature and was governed by the rule of primogenitures. However, since the Jagir was resumed, the impartible character of the property was lost and the joint family property became subject to partition. So the co-sharers could exercise other rights as coparceners in the joint family property. The khud-kasht land held by the Jagirdar must, therefore, be held by him on behalf of and for the benefit of the joint Hindu family, of which he was the karta although the ex-jagirdar because the Khatadar tenant in respect of such Khudkasht land, yet the Khatadari rights were held by him on behalf of the joint Hindu family of which he was the Karta. The Junier members of the family were entitled to seek partition of the joint family property, namely the khudkasht land held in the name of Gopal Singh. A combined reading of sub-rules (2) and (4) of rule 17 go to show that while calculating extent of land held by the family consisting of Gopal Singh, his wife and dependent children and grand-children, the share of the members of the family in the land held by the Hindu undivided family has to be taken into account. According to sub-rule(4) such share shall be deemed to be the extent of land which would have fallen to the share of such member in case a partition would have taken place on the appointed date. In this view of the matter, the remaining land measuring 383 bighas 11 biswas, standing in the name of Gopalsingh and his wife has to be divided into six shares, including the shares of Gopalsingh, his wife and 4 sons. Thus, after the exclusion of the sharas of 3 sons of Gopalsingh, if a notional partition would have taken place on the appointed date, according to Rule 17 (4) of the Ceiling Rules, then only191 bighas 15 biswas of land would be available for determining the ceiling area applicable to Gopal Singh. (Para 11 & 12)
2. Gopal Singh petitioner was formerly the Jagirdar of the Jagir Amli Kalu Singh in Bhilwara District of the State of Rajasthan, which was resumed on Aug 23,1954. The Sub-Divisional Officer, Shahpura initiated proceedings under Chapter III-B of the Raj Tenancy Act, 1955 for determination of the extent of ceiling area which could be lawfully continued to be held by Gopal Singh and his family members. The Sub-Divisional Officer, by his order dated September 2, 1971 held that Gopal Singh had in his possession 97 standard acres of land in-excess of the ceiling limit and directed that the excess land be resumed. An appeal preferred by the petitioner before the Revenue Appellate Authority, Udaipur was dismissed on February 2, 1972. The petitioner preferred a revision petition before the Board of Revenue for Rajasthan, which was partly allowed on August 18, 1972 to the extent of recognising the transfer made by the petitioner Gopal Singh on September 3, 1959 in favour of Chanchal Singh in respect of land measuring 80 Bighas. The Board of Revenue consequently remanded the case to the Sub-Divisional Officer, Shahpura, for reconsideration of the matter relating to 80 Bighas of land sold by the petitioner to Chanehal-Singh. The remaining submission made on behalf of the petitioner before the Board of Revenue were rejected.
3. It is not in dispute that 647 Bighas and 18 Biswas of land stood in the name of Gopal Singh petitioner while 23 Bighas and 8 Biswas of land were entered in the revenue record in the name of his wife. Thus, 671 Bighas and 6 Biswas of land were entered in the name of Gopal Singh and his wife, out of which 267 Bighas and 15 Biswas of land were transferred by the petitioner by means of various sale-deeds to different persons prier to December 31, 1969 and the sale of aforesaid land to the extent of 267 Bighas and 15 Biswas, was recognised by the Sub Divisional Officer while determining the extent of excess land over and above the ceiling area applicable to the petitioner. Out of the remaining land measuring 463 Bighas 11 Biswas, the Board of Revenue also recognised the transfer of 80 Bighas of land, effected by the petitioner Gopal Singh in favour of Chanchal Singh by a sale deed dated September 3, 1959. The Sub-Divisional Officer had refused to recognise the transfer of 80 Bighas of land allegedly sold to Chanchal Singh, because of the tact that Chanehal Singh was the brother-in-law of Gopal Singh. However, the Board of Revenue, while considering the revision petitioner of Gopal Singh, held that the lower court committed an illegality in not recognising the transfer of aforesaid land in favour of Chanehal Singh. Thus, when the transfer of 80 Bighas of land sold by the petitioner Gopal Singh to Chanchal Singh, by means of the sale deed dated September 3, 1959 has been recognised, then 383 Bighas and 11 Biswas of land remained in the name of the petitioner Gopal Singh and his wife.
4. The Sub-Divisional Officer held that there were seven members in the family of Gopal Singh, including himself, his wife and a son Bhagwant Singh and his wife and their minor sons and minor daughters and held that the family was entitled to 40 standard acres of land, in accordance with the provisions of Section 30-C of the Rajasthan Tenancy Act (hereinafter referred to as the Act.
5. An argument which advanced before the Board of Revenue on behalf of the petitioner that the land standing in the name of the wife of Gopal Singh should not be clubbed along with his land was not accepted by the Board and in my view rightly. The definition of family as given in Section 30-B of the Rajasthan Tenancy Act, is that a family consisted of a husband and wife, their children and grand children, being dependent on them and the widowed
