The main legal point established is the interpretation of 'family' under the Orissa Land Reforms Act and the recognition of the concept of gift in Hindu Law.

JUDGMENT :

R.N. Misra, C.J. - Ceiling surplus holder under the provisions of the Orissa Land Reforms Act is the Petitioner. He challenges the determination of the surplus area of 8.06 acres of land and the direction that the same should vest in the State.

Petitioner preferred an appeal as also a revision, to allow his stand to be sustained. According to the Petitioner there had been an amicable partition in 1968 between him and his two sons - Krushna and Satchidananda (opposite parties 5 and 6 respectively). In a title suit being T.S. No. 63 of 1974 in the Court, of the Munsif, Aska, between the Petitioner as Plaintiff and his two sons as Defendants, the question of partition was gone into and the claim that there had been a partition in 1968 was accepted. Petitioner as Plaintiff obtained a decree for recovery of possession of certain properties. It was, therefore, contended that the lands could not have been treated to belong to the Petitioner and surplus could not have been determined by treating all the three sharers as one. The next contention is that 2.80 acres of land had been gifted to a daughter at the marriage altar in 1964 and, therefore, that land should not have been taken into account. Allegations were also made that classification of the property had by the family was not properly done. The revisional authority by his order dated 2nd of April, 1977, while not accepting the other contentions directed:

However, on the second point in which I would like to concede with the argument of the learned Counsel for the Petitioner is that the Revenue Officer has held 2.49 acres of land as Class-I land being irrigated by the Rushikulya system. It is well-known that Rushikulya system is a Khariff system and it is an insurance system which merely insures the Khariff crop. Rabi is not an assured crop and only in certain areas minor millets like ragi are grown. It is, therefore, necessary that the Revenue Officer while determining the classification of land would go by the irrigation records in the Tahasil Office regarding the classification of the land rather than his personal inspection. He may go into the question of classification of land before the ceiling is decided. Subject to this observation the revision is dismissed.

Petitioner alleges, and same is the stand taken in the counter affidavit that the lands had already vested and distribution was made. The scheme under the Act is such that until the revision is disposed of no vesting takes place and certainly before vesting takes place there can be no distribution. Therefore, it cannot be accepted that before the Revenue Divisional Commissioner disposed of the revision where he directed re-classification, there could have been distribution. Such distribution it any is without authority of the Act and, therefore, cannot operate against the interest of the land-holder. We shall, therefore, proceed on the footing that the direction for re-classification must operate. The Revenue Officer is directed to implement the lawful direction of the Revenue Divisional Commissioner.

2. Of the two other contentions which have been canvassed before us, we shall deal with the question of partition first. According to Mr. Das, the partition has been evidenced by a document and the claim is reinforced by a decree. Learned Government Advocate, however, answers the argument by saying that the definition of 'family' given in Section 37(b) of the Act has overloading effect and unless the partition as claimed by the Petitioner answers the definition even if there be separation, the separated members shall be taken as belonging to a family. There is force in this submission. On the facts as found, particularly the finding recycling the factum of marriage and the age of the co-sharers, we do not think, we can interfere with the finding recorded by the fact-finding authorities as to the age of the co sharer-sons and the factum of they being married.

So far as the gift to a daughter in the marriage altar in