DAULAT SINGH (D) THR. LRS. versus THE STATE OF RAJASTHAN & ORS on 8 December 2020

[2020] 11 S.C.R. 845

DAULAT SINGH (D) THR. LRS.

v.

THE STATE OF RAJASTHAN & ORS

(Civil Appeal No. 5650 of 2010)

DECEMBER 08, 2020

[N. V. RAMANA, S. ABDUL NAZEER ANDSURYA KANT, JJ.]

Rajasthan Imposition of Ceiling on Agricultural Holdings Act,1973: s.15 – Power to reopen cases – Limitation period – Relevantdates for determination of issue of limitation is the date of ordersought to be reopened and the date of issuance of show-causenotice under s.15 of the Ceiling Act of 1973.

Rajasthan Tenancy Act, 1955 – ss.30C, 30D, 30DD – Ceilinglimit – Appellant was owner of 254.2 bighas of land – On19.12.1963, he gifted away 127.1 bighas of land to his son andthereafter he was left with 17.25 standard acres of land – Proceedingwas initiated under the ceiling law but same was dropped on14.04.1972 with observation that amendment of s.30DD of the Act,1955 was effective from 31.12.1969 and since the gift deed wasexecuted before the said amendment, the said transfer was valid –By notice dated 15.03.1982, the Revenue Ceiling Department re-opened the case of the appellant – Authorities held that the appellantwas holding land over and above the ceiling limit – High Court,while passing the impugned order, held the registered gift deed dated19.12.1963 to be invalid on the basis that it did not meet therequirements as provided under s.122 of the Transfer of PropertyAct, 1882 – High Court observed that gift deed did not showacceptance of gift by the donee, rather it seemed that donee waseven unaware of the gift – High Court held that appellant washolding 4.5 standard acres of land in excess of ceiling limit –Aggrieved land owner filed instant appeal – Held: The recitals inthe gift deed indicated that donor intended to part with ownershipand possession immediately after the execution of the gift deed –Mutation entry in the Revenue Record reflected that half portion ofappellant’s land was bestowed as a gift by him to his son through aregistered instrument of gift – Even in the statement of the appellant,

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Ahe has stated that the transferee-son was living separately and wascultivating the said gifted property and that he was in possession ofan ox and equipments for ploughing and agriculture – These factswere reiterated by the transferee also in his statement – Thestatements of transferor and the transferee clearly indicated thatthe transferee had the equipment and skills and was sustainingBhimself as an agriculturalist – Lastly, the said transfer was executedway before the cut-off date stipulated under s.30DD i.e. 31.12.1969– Therefore, the registered gift deed was a bona fide transfersquarely covered within the ambits of s.30DD, which intended toprotect the rights of agriculturalists – The transfer of the land beingCvalid under s.30DD, the ceiling area of the appellant fell within theceiling limit as provided under s.30C – Rajasthan Imposition ofCeiling on Agricultural Holdings Act, 1973.

Facts

Transfer of Property Act, 1882: ss.122, 123 – Whether theregistered gift deed executed by appellant was valid in the eyes ofDlaw – Held: For a gift to be valid, it must be gratuitous in natureand must be made voluntarily – The said giving away implies acomplete dispossession of the ownership in the property by the donor– Acceptance of a gift by the donee can be done anytime during thelifetime of the donor – Act of receiving willingly, acceptance can beinferred by the implied conduct of the donee – The recitals in theEgift deed indicated that donor intended to part with ownership andpossession immediately after the execution of the gift deed –Mutation Record clearly reflected that half portion of appellant’sland was bestowed as a gift by him to his son through a registeredinstrument of gift – Furthermore, the statement rendered by theFappellant before the Additional District Magistrate indicated thatthe donee was already a major at the time of the execution of thegift deed and after execution of the gift deed the donee startedcultivating on the same – This statement of the appellant wascompletely supported by the statement made by the donee before the Additional District Magistrate in which donee had stated that,Gas he did not get along with his step-mother, he started livingseparately and the land was transferred to him by virtue of giftdeed was under his possession and he was cultivating the same –Therefore, these circumstances clearly indicated that there was anacceptance of the gift by the donee during the lifetime of the donorH– Respondents failed to bring on record any evidence to rebut the fact that the donee was in enjoyment of the property – In light ofthe same, the Single Judge Bench took a plausible view that, it wasa transfer between a father and a son and there was a validacceptance of the gift when the donee-son started living separately– Lastly, since it was registered deed bearing signature of the donorand attested by two witnesses, the requirements under s.123 of theTransfer of Property Act, 1882 were satisfied – Gift deed – RajasthanImposition of Ceiling on Agricultural Holdings Act, 1973 – RajasthanTenancy Act, 1955.

Rajasthan Imposition of Ceiling on Agricultural Holdings Act,1973 – s.6 – Applicability of – Held: s.6 of the Ceiling Act of 1973declares that every transfer of land including by way of gift, madeon or after 26-09-1970 and before 01-01-1973, shall be deemed tohave been made to defeat the provisions of the Ceiling Act of 1973– In the instant case, the gift deed was executed on 19-12-1963,that is much before 26-09-1970 – Therefore, s.6 of the Ceiling Actof 1973 does not affect the transfer of land by the appellant-donorin favour of the donee-son – Also, there is no finding that the giftdeed in this case was actuated upon any extraneous consideration– Hence, it constituted a bona fide transfer which are exemptedfrom the rigors of s.6 of the Ceiling Act of 1973.

Words and Phrases: Word ‘acceptance’ – Meaning of.

Allowing the appeal, the Court

HELD : 1. Section 15 of the Ceiling Act of 1973 confersupon the State Government the power to re-open the cases, if itis satisfied that the earlier order was in contravention with theprovisions of the Act and is prejudicial to the State interest. Thesaid direction to re-open cases must be preceded by a show-cause notice served upon the person concerned. However, theproviso clause states that no notice can be issued after the expiryof five years from the date of the final order sought to be re-opened or after the expiry of 30[th] June 1979, whichever is later.Therefore, the relevant dates for determination of the issue oflimitation is the date of order sought to be reopened and the dateof issuance of show-cause notice under Section 15 of the CeilingAct of 1973. The respondents brought to notice the xerox copyof the Notice dated 20.11.1976 issued by Deputy Government AB

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ASecretary, Revenue (Billing), Rajasthan. The aforesaid notice wassent to the appellant on 20.11.1976, that is within five years ofthe earlier order dated 15.04.1972. Further, the notice alsosatisfied the requirements as provided under Section 15 of theCeiling Act of 1973, and hence was valid in the eyes of law. Thecase was, thus, re-opened within the time period stipulated underBSection 15 of the Ceiling Act of 1973. [Paras 13, 14, 15, 16][855-C-H]

2.1 Section 122 of the Transfer of Property Act, 1882provides that for a gift to be valid, it must be gratuitous in natureand must be made voluntarily. The said giving away implies aCcomplete dispossession of the ownership in the property by thedonor. Acceptance of a gift by the donee can be done anytimeduring the lifetime of the donor. Section 123 provides that for agift of immovable property to be valid, the transfer must beeffectuated by means of a registered instrument bearing the Dsignature of the donor and attested by at least two witnesses.[Paras 20, 21][856-G-H; 857-A]

Naramadaben Maganlal Thakker v. PranjivandasMaganlal Thakker (1997) 2 SCC 255 : [1996] 5 Suppl. SCR 780 – referred to.

E2.2 Section 122 of the Transfer of Property Act, 1882 neitherdefines acceptance, nor does it prescribe any particular mode foraccepting the gift. The word acceptance is defined as “the receiptof a thing offered by another with an intention to retain it, asacceptance of a gift.”The said fact can be ascertained from theFsurrounding circumstances such as taking into possession theproperty by the donee or by being in the possession of the giftdeed itself. The only requirement stipulated here is that, theacceptance of the gift must be effectuated within the lifetime ofthe donor itself. Hence, being an act of receiving willingly,acceptance can be inferred by the implied conduct of the donee.G[Paras 24-27][857-F-H; 858-A]

Asokan v. Lakshmikutty (2007) 13 SCC 210 – referredto.

Ramanatha P. Aiyar: The Law Lexicon, 2[nd] Edn., page19 – referred to.H

2.3 The recitals in the gift deed indicated that donor intendedto part with ownership and possession immediately after theexecution of the gift deed. The Mutation entry in the RevenueRecord clearly reflects that half portion of appellant’s land wasbestowed as a gift by the appellant to his son through a registeredinstrument of gift dated 19.12.1963. Furthermore, the statementdated 31.08.1984, rendered by the appellant-donor before theCourt of Additional District Magistrate indicates that the doneewas already a major at the time of the execution of the gift deed.He further stated that after execution of the gift deed the doneestarted cultivating on the same. This statement of the appellant-donor is completely supported by the statement made by thedonee before the Court of Additional District Magistrate.Therein, the donee clearly stated that, as he did not get alongwith his step-mother, he started living separately and the landwas transferred to him by virtue of gift deed was under hispossession and he was cultivating the same. Therefore, thesecircumstances clearly indicate that there was an acceptance ofthe gift by the donee during the lifetime of the donor. [Paras28-31][858-G-H; 859-A-D]

2.4 The respondents failed to bring on record any evidenceto rebut the fact that the donee was in enjoyment of the property.In light of the same, the Single Judge Bench took a plausibleview that, it was a transfer between a father and a son and therewas a valid acceptance of the gift when the donee-son startedliving separately. Lastly, it ought to be noted that apart from thepoint of acceptance by the donee as held above since the deed isregistered, bears the signature of the donor and has been attestedby two witnesses, the requirements under Section 123 of theTransfer of Property Act, 1882 have been satisfied. [Para 33][859-E-G]

3.1 Section 30C provides that for a family consisting of fiveor less members, the ceiling area would be thirty standard acres.When a family exceeds five members, five acres of ceiling areashall be extended for every additional member, however, sucharea cannot extend beyond sixty standard acres. The appellantadmittedly was having a family of less than five members and wasoriginally holding around 34.4 standard acres. Subsequently, by AB

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Avirtue of registered gift deed dated 19.12.1963, the appellant hadtransferred around 17.25 standard acres to his son. [Paras 35,38][860-C; 862-B-C]

3.2 Section 30D provides that any transfer, on or after25.02.1958, other than the ones provided in sub-section 1(i) andB1(ii) shall be deemed to have been entered to defeat the purposeof Ceiling Act. Such transactions were declared to be void. Theaforesaid two exceptions being transfer by partition and transferto a landless person. However, Section 30DD provides furtherexceptions to Section 30D as it recognizes certain transfer afterthe cut-off date provided under Section 30D. Section 30DDCrecognizes transfers of area up to 30 standard acres made infavour of an agriculturalist, his son or brother who are capable ofdoing agriculture and also intend to take up agriculture as aprofession. However, such transfer must have been made before31.12.1969 and the transferee must have attained the age ofDmajority on or before the aforesaid date. [Paras 39 and 40][862-C-E]

3.3 The legislature has carved out two separate categoriesof lands, one which is includible and other which is outside thepurview of ceiling laws. Once such a classification has been made,Ewith there being no challenge to its vires, it is the solemn duty ofevery authority to give full effect to the same, in both letter andspirit. Although, it is possible that there can be a voluntary transferwhich would meet the qualifications of both Sections 30D andSection 30DD, however, it is significant to note that Section 30DDopens up with a non-obstante clause with overriding effect onFSection 30D, as a result of which, any land included within itspurview would be protected from the rigors of Section 30D of theTenancy Act of 1955. Therefore, if the appellant succeed in itsendeavor to establish that the transfer was covered under Section30DD of the Tenancy Act of 1955, then such transferred land hasGto be exempted from computation of confiscable land, irrespectiveof the fact that it falls within the ceiling limit as prescribed underSection 30D of the Tenancy Act of 1955. [Para 43][863-B-D]

3.4 Another significant piece of evidence is the statementof the transferor-appellant dated 31.08.1984, wherein he has H

stated that the transferee-son was living separately and wascultivating the aforesaid gifted property. It is also mentioned thatthe transferee is in possession of an ox and equipments forploughing and agriculture. The aforesaid facts have beenreiterated by the transferee as well vide his statement dated15.12.1988, wherein he has clearly stated that, he is inindependent possession of the gifted property and has beencultivating the said land. The aforesaid pieces of evidence clearlyindicate that due to certain family issues, the appellant and hisson were living separately. During such separation, when thetransferee-son had already attained the age of majority, theappellant-owner of the land, who was an agriculturalist himself,transferred the aforesaid land in favour of his son, so as to enablehim to cultivate the same. The statements of transferor and thetransferee clearly indicate that the transferee had the equipmentand skills and was sustaining himself as an agriculturalist. [Paras44, 45][863-E-G]

3.5 Lastly, it must be taken into consideration that, theaforesaid transfer was executed way before the cut-off datestipulated under Section 30DD i.e. 31.12.1969. Therefore, theregistered gift deed dated 19.12.1963 was a bona fide transfersquarely covered within the ambits of Section 30DD, whichintended to protect the rights of agriculturalists. The transfer ofthe land being valid under Section 30DD of the Tenancy Act of1955, the ceiling area of the appellant falls within the ceiling limitas provided under Section 30C. [Paras 46, 47][863-H; 864-A-C]

3.6 There is no gainsaying that Section 6 of the Ceiling Actof 1973 also does not advance the case of the State. Firstly, therepeal of Chapter III-B of the Tenancy Act of 1955 through Section40 of the Ceiling Act of 1973 is not retrospective. Hence, theprovisions of the Ceiling Act of 1973 are not attracted in thepresent case as the case was re-opened and decided under theprovisions of the of Tenancy Act of 1955. Secondly, Section 6 ofthe Ceiling Act of 1973 declares that every transfer of landincluding by way of gift, made on or after 26-09-1970 and before01-01-1973, shall be deemed to have been made to defeat theprovisions of the Ceiling Act of 1973. In the instant case, the gift AB

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Adeed was executed on 19-12-1963, that is much before 26-09-1970. Therefore also, Section 6 of the Ceiling Act of 1973 doesnot affect the transfer of land by the appellant-donor in favour ofthe donee-son. Thirdly, there is no finding that the gift deed inthe present case was actuated upon any extraneous consideration.Hence, it constitutes a bona fide transfer which are exemptedBfrom the rigors of Section 6 of the Ceiling Act of 1973. [Para48][864-C-F]

Case Law Reference

From the Judgment and Order dated 25.04.2008 of the High CourtDof Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal No.264/1999(Writ).

Dr. Manish Singhvi, Sr.Adv., Ms. Chitrangda Rastravara, Gp. Capt.Karan Singh Bhati, Sandeep Kumar Jha, Milind Kumar, Advs. for theappearing parties.

EThe Judgment of the Court was delivered by

N. V. RAMANA, J.

1. The present appeal arises out of the impugned judgment dated25.04.2008, passed by the High Court of Judicature for Rajasthan atJodhpur in D.B. Civil Special Appeal No. 264 of 1999 (Writ) whereinFthe Division Bench of the High Court allowed the appeal preferred bythe respondents and upheld the order dated 02.07.1990 passed by theBoard of Revenue while setting aside the order dated 02.04.1997 of theSingle Judge.

2. The facts underlying the appeal are as follows: Daulat SinghG(since deceased and now represented through his legal representativesand who shall hereinafter for the sake of convenience be referred to asthe appellant) was owner of 254.2 Bighas of land. On 19.12.1963, hegifted away 127.1 Bighas of land to his son, Narpat Singh. After the saidtransfer, the appellant was left with 17.25 standard acres of land, whichHwas below the prescribed limit under the Ceiling Act.

3. Although, a proceeding was initiated under the ceiling law, thesame was dropped on 15.04.1972 by the Court of Deputy Sub-DivisionalOfficer, Pali, Rajasthan. While dropping the proceedings, the Courtobserved that, the amendment of Section 30DD of the Rajasthan TenancyAct, 1955 (hereinafter “Tenancy Act of 1955”) was effective from31.12.1969, and since the gift deed was executed before the aforesaidamendment, the aforesaid transfer was valid.

4. However, by notice dated 15.03.1982, the Revenue CeilingDepartment re-opened the case of the appellant. The Revenue CeilingDepartment while issuing the aforesaid notice stated that the earlierorder dated 15.04.1972, passed by the Court of Deputy Sub-DivisionalOfficer, Pali was rendered without investigating whether the land transfersare recognizable as per the provisions of Section 30 of the Tenancy Actof 1955. The same being in contravention of the provisions, needs to bereopened.

5. The Court of Additional District Collector, Pali vide order dated28.10.1988, declared that the mutation of the land done in favour of theson of the appellant was invalid as there was no acceptance of the gift.It was declared therein that the appellant was holding 11 standard acresof extra land over and above the ceiling limit. The Collector, therefore,directed the appellant to handover vacant possession of the aforesaid 11standard acres of extra land to the Tahsildar, Pali.

6. Aggrieved by the aforesaid order, the appellant preferred anappeal before the Board of Revenue. Vide order dated 02.07.1990, theBoard of Revenue, modified the earlier order dated 28.10.1988, andupon re-calculation held that the appellant is holding 4.5 standard acresof land in excess of the ceiling limit.

7. Aggrieved, the appellant preferred a Writ Petition under Article227 of the Constitution of India, 1950 before the High Court. Vide orderdated 02.04.1997, the learned Single Judge of the High Court allowedthe writ petition preferred by the appellant. The Court held that the casewas beyond the purview of Section 6 of The Rajasthan Imposition ofCeiling on Agricultural Holdings Act, 1973 (hereinafter “Ceiling Act of1973”) because the land was transferred by way of gift before26.09.1970. It was further held that the aforesaid transfer of land, by theappellant in favour of his son by virtue of a registered gift deed, beingbona fide, was valid in the eyes of law. The learned Single Judge, A

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Atherefore held that there is no surplus land which is available with theappellant which can be resumed.

8. Thereafter, the respondents preferred an appeal against theabove order before the Division Bench, which allowed the appeal holdingthat the gift deed was invalid as the son of the appellant was unawareBabout the same. The Division Bench vide impugned judgment dated25.04.2008, held that the learned Single Judge passed the judgment inignorance of the provisions of Section 30C and 30D of the Tenancy Actof 1955. Therefore, the Division Bench of the High Court set aside theorder passed by the Single Judge Bench for being untenable and upheldthe order passed by the Board of Revenue.C

9. Aggrieved, the appellant has preferred the present appeal byway of Special Leave Petition before this Court.

10. The counsel on behalf of the appellant argued that the transferof land was effectuated way back in 1963. The Division Bench clearlyDerred in not recognizing the transfer of 17.25 acres in favor of theappellant’s son Narpat Singh, who was a major at the time the gift deedwas executed, during his lifetime, as per the requirements of Section122 of the Transfer of Property Act, 1882. There was an impliedacceptance because this is a case of transfer between father and son.On the basis of facts of this case, it is proved that the son was livingEseparately with his family. Moreover, such a transfer does not violatethe provisions of Section 30C and Section 30D of the Tenancy Act of1955. Lastly, the counsel also pleaded that the notice given for reopeningof the ceiling case was beyond the period of limitation.

11. On the other hand, the counsel on behalf of the RespondentsFargued that the Division Bench rightly upheld the order passed by theBoard of Revenue which was passed after detailed assessment of thefacts and appropriate reliance upon Section 30C and 30D of the TenancyAct of 1955. The respondents submitted that the findings of facts couldnot be interfered with in a writ proceeding. The respondents also statedGthat, issue of limitation was never argued by the appellant in the Courtsbelow. Be that as it may, the notice was issued within the limitationperiod.

12. Having heard the learned counsel, three important issues arisefor our consideration:

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i.Whether reopening of the case was beyond the period ofAlimitation?

ii. Whether the registered gift deed executed by the appellant isvalid in the eyes of law?

iii. Whether the judgment of learned Single Judge is in ignoranceof the provisions of Sec 30C and 30D of the Tenancy Act of1955?

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ISSUE NO.1

13. Section 15 of the Ceiling Act of 1973 confers upon the StateGovernment the power to re-open the cases, if it is satisfied that theearlier order was in contravention with the provisions of the Act and isprejudicial to the State interest. The aforesaid direction to re-open casesmust be preceded by a show-cause notice served upon the personconcerned. However, the proviso clause states that no notice can beissued after the expiry of five years from the date of the final ordersought to be re-opened or after the expiry of 30[th] June 1979, whicheveris later.

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14. Therefore, the provision mandates that, after the expiry offive years from the date of final order sought to be re-opened, or afterthe expiry of 30[th] June 1979, whichever is later, no notice for re-openingof such cases can be issued. Therefore, the relevant dates fordetermination of the issue of limitation is the date of order sought to bereopened and the date of issuance of show-cause notice under Section15 of the Ceiling Act of 1973.

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15. During the course of the hearing and on a query raised by theBench, the respondents have brought to our notice the xerox copy of theNotice dated 20.11.1976 issued by Deputy Government Secretary,Revenue (Billing), Rajasthan.

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16. It ought to be noted that, the aforesaid notice was sent to theappellant on 20.11.1976, that is within five years of the earlier orderdated 15.04.1972. Further, the notice also satisfied the requirements asprovided under Section 15 of the Ceiling Act of 1973, and hence wasvalid in the eyes of law. The case was, thus, re-opened within the timeperiod stipulated under Section 15 of the Ceiling Act of 1973. Therefore,issue no.1 is answered in favour of the respondent-State.

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AISSUE NO.2

17. The High Court, while passing the impugned order, held theregistered gift deed dated 19.12.1963 to be invalid on the basis that it didnot meet the requirements as provided under Section 122 of the Transferof Property Act, 1882. The Division Bench while upholding theBobservations of the Board of Revenue, further observed that a perusalof the gift deed does not show acceptance of gift by the donee, rather itseems that donee was even unaware of the gift.

18. Section 122 of the Transfer of Property Act, 1882 provides that:

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122. “Gift” defined. — “Gift” is the transfer of certainexisting movable or immovable property made voluntarily andwithout consideration, by one person, called the donor, to another,called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made. — Such acceptance mustDbe made during the lifetime of the donor and while he is still capableof giving.

If the donee dies before acceptance, the gift is void.

19. Section 123 of the Transfer of Property Act, 1882 provides that:E

123. Transfer how effected. —For the purpose of making a giftof immovable property, the transfer must be effected by aregistered instrument signed by or on behalf of the donor, andattested by at least two witnesses.

FFor the purpose of making a gift of movable property, the transfermay be effected either by a registered instrument signed asaforesaid or by delivery.

Such delivery may be made in the same way as goods sold maybe delivered.

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20. Section 122 of the Transfer of Property Act, 1882 providesthat for a gift to be valid, it must be gratuitous in nature and must bemade voluntarily. The said giving away implies a complete dispossessionof the ownership in the property by the donor. Acceptance of a gift bythe donee can be done anytime during the lifetime of the donor.

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21. Section 123 provides that for a gift of immovable property tobe valid, the transfer must be effectuated by means of a registeredinstrument bearing the signature of the donor and attested by at leasttwo witnesses.

22. A three-Judge Bench of this Court in the case of NaramadabenMaganlal Thakker v. Pranjivandas Maganlal Thakker, (1997) 2SCC 255 had held that:

6. Acceptance by or on behalf of the donee must be made duringthe lifetime of the donor and while he is still capable of giving.

7. It would thus be clear that the execution of a registeredgift deed, acceptance of the gift and delivery of the property,together make the gift complete. Thereafter, the donor isdivested of his title and the donee becomes the absoluteowner of the property.

23. The Division Bench of the High Court in the impugned judgmentupheld the findings of the Board of Revenue wherein it held that therewas no valid acceptance by the donee. The Additional District Collectorheld that there was no semblance of acceptance in the gift deed. Onappeal, the Board of Revenue held that, “it is irrelevant that after thegift the land remained in possession of the donee or that he got itmutated in his name.”. The Division Bench of the High Court, relyingon the aforesaid observation, stated that there was no valid acceptanceas it seems like the donee was unaware about the gift deed itself.

24. At the outset, it ought to be noted that Section 122 of theTransfer of Property Act, 1882 neither defines acceptance, nor does itprescribe any particular mode for accepting the gift.

25. The word acceptance is defined as “is the receipt of a thingoffered by another with an intention to retain it, as acceptance of agift.” (See Ramanatha P. Aiyar: The Law Lexicon, 2[nd] Edn., page19).

26. The aforesaid fact can be ascertained from the surroundingcircumstances such as taking into possession the property by the doneeor by being in the possession of the gift deed itself. The only requirementstipulated here is that, the acceptance of the gift must be effectuatedwithin the lifetime of the donor itself.

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A27. Hence, being an act of receiving willingly, acceptance can beinferred by the implied conduct of the donee. The aforesaid position hasbeen reiterated by this Court in the case of Asokan v. Lakshmikutty,(2007) 13 SCC 210

14. Gifts do not contemplate payment of any consideration orBcompensation. It is, however, beyond any doubt or dispute that inorder to constitute a valid gift acceptance thereof is essential.We must, however, notice that the Transfer of Property Act doesnot prescribe any particular mode of acceptance. It is thecircumstances attending to the transaction which may berelevant for determining the question. There may be variousCmeans to prove acceptance of a gift.The document may behanded over to a donee, which in a given situation may alsoamount to a valid acceptance. The fact that possession hadbeen given to the donee also raises a presumption ofacceptance.

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28. In the present case, the gift deed itself contained certain recitalsas mentioned below:

“…Out of the aforesaid land in all the khasra’s 1/2 part means 50Epercent I am giving you in gift being my younger son with mypleasure. My elder son Shri Babu Singh has no objection to thisgift … From today you are the owner of the half of the land giftedto you and you will have possession hereafter. You have thecomplete right over the aforesaid land for cultivation from todayonward. Now you get the gifted land mutated in your name…FThese lands have not been sold or under Will or under the giftearlier. Further I state that the aforesaid land is free from anydebt liability… The registration of the aforesaid gift has been doneby me in my sound physical and mental health with consent withoutany undue coercion and pressure from anyone. I have gifted theGaforesaid land with my sweet will and wish…”These recitals clearly indicate that donor intended to part withownership and possession immediately after the execution of the giftdeed.

29. In order to show acceptance, the counsel for the appellantHdrew our attention to the mutation records. The Mutation entry in the Revenue Record of Gram Sedriya, District Pali dated 28.10.1968 clearlyreflects that half portion of appellant’s land was bestowed as a gift bythe appellant to his son through a registered instrument of gift dated19.12.1963.

30. Furthermore, the statement dated 31.08.1984, rendered bythe appellant-donor before the Court of Additional District Magistrateindicates that the donee was already a major at the time of the executionof the gift deed. He further stated that after execution of the gift deedthe donee started cultivating on the same.

31. The aforesaid statement of the appellant-donor is completelysupported by the statement made by the donee on 15.12.1988 before theCourt of Additional District Magistrate. Therein, the donee clearly statedthat, as he did not get along with his step-mother, he started livingseparately and the land was transferred to him by virtue of gift deedwas under his possession and he was cultivating the same.

32. Therefore, the abovementioned circumstances clearly indicatethat there was an acceptance of the gift by the donee during the lifetimeof the donor. Not only the gift deed in itself contained recitals abouttransfer of possession, but also the mutation records and the statementsof the both the donor and donee indicate that, there has been anacceptance of the gift by conduct.

33. The respondents failed to bring on record any evidence torebut the fact that the donee was in enjoyment of the property. In light ofthe same, the learned Single Judge Bench took a plausible view that, itwas a transfer between a father and a son and there was a validacceptance of the gift when the donee-son started living separately.Lastly, it ought to be noted that apart from the point of acceptance bythe donee as held above since the deed is registered, bears the signatureof the donor and has been attested by two witnesses, the requirementsunder Section 123 of the Transfer of Property Act, 1882 have beensatisfied. In line with the aforementioned observations, issue no.2 isanswered in favour of the appellant.

ISSUE NO.3

34. The learned Division Bench, while setting aside the judgmentof the learned Single Judge observed that the learned Single Judge passedthe order in ignorance of the provisions of Section 30C and 30D of theTenancy Act of 1955. However, the counsel on behalf of the appellant A

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Ahas argued that the transfer of land made by the appellant to his sondoes not violate the terms of Section 30C and Section 30D as containedin Chapter III-B of the Tenancy Act of 1955 (since repealed by theRajasthan Imposition of Ceiling on Agricultural Holdings Act,1973) assuch a transfer satisfies the test of Section 30DD of the Tenancy Act of1955.B

35. Chapter III B of the Tenancy Act of 1955, comprising ofSections 30B to 30J deals with restrictions on holding land in excess ofceiling limit. Section 30C indicates the extent of ceiling area. This sectionprovides that for a family consisting of five or less members, the ceilingarea would be thirty standard acres. When a family exceeds five members,Cfive acres of ceiling area shall be extended for every additional member,however, such area cannot extend beyond sixty standard acres.

36. Section 30D provides that all transfers, except those whichare specified under sub-section (1) are not to be recognized fordetermination of holding with respect to the ceiling area. Thereafter,DSection 30DD, a subsequent amendment to the Tenancy Act of 1955provides further exceptions to the general bar under Section 30D.

37. It is pertinent for us to have a look at the relevant Sections30D and 30DD. The Sections read as follows:

E30D. Certain transfers not to be recognised for fixingceiling area under Section 30C.—

(1) For the purpose of determining the ceiling area in relationto a person under Section 30C, any voluntary transfer effectedby him on or after 25-2-1958, otherwise than- F(i) By way of partition, or

(ii) In favour of a person who was a landless person beforethe said date and continued to be so till the date of transfer, of the whole or a part of his holding shall be deemed to be atransfer calculated to defeat the provisions of this Chapter andGshall not be recognised and taken into consideration; and theburden of proving whether any such transfer falls under clause

(i) or clause (ii) shall lie on the transferor:

Provided that if by way any such transfer as is mentionedin clause (ii) land in excess of the ceiling area applicable to the H

transferee has been transferred to him, such transfer to theextent of such excess shall not be recognised or taken intoconsideration for the purpose of this sub-section:

Provided further that no such transfer as is mentionedin clause (ii) shall also so taken into consideration or recognisedif it has been made after 9-12-1959.

…

30DD. Certain transfers to be recognized.—

Notwithstanding anything to the contrary contained in Section 30D,for the purpose of determining the ceiling area in relation to aperson under Section 30C,-

(i) every transfer of land not exceeding thirty standardacres made by a person upto the thirty first day ofDecember, 1969 in favour of an agriculturist domiciledin Rajasthan or in favour of his son or brother intendingto take to the profession of agriculture and capable ofcultivating land personally and who had attained the ageof majority on or before the said date; and

(ii) every transfer to the extent as aforesaid made by a personbefore the first day of June, 1970 of land comprised in grovesor farms of the nature referred to in clauses (a), (b), (d) and(e) of sub-section (1) of Section 30-J as it stood prior to thecommencement of the Rajasthan Tenancy (SecondAmendment) Act, 1970 and acquired before the first day ofMay, 1959 in favour of his son or brother fulfilling the conditionsmentioned in clause (i) and who attains the age of majority onor before the first of the aforementioned dates, shall also berecognized.

Explanation - I The expression “agriculturist” in this sectionshall mean a person who earns his livelihood wholly or mainlyfrom agriculture and cultivates land by his own labour or bythe labour of any member of his family or along with suchlabour as aforesaid with the help of hired labour or servant onwages payable in cash or in kind and shall include an agriculturallabourer and a village artisan.

A

B

C

D

E

F

G

H

862SUPREME COURT REPORTS

AII. The expression “domiciled in Rajasthan” in this section shallmean a person who permanently resides in Rajasthan sincebefore the commencement of this Act.

38. As discussed earlier, Section 30C of the Tenancy Act of 1955provides for the ceiling limit of 30 standard acres for a family of fiveBmembers or less. The appellant admittedly was having a family of lessthan five members and was originally holding around 34.4 standard acres.Subsequently, by virtue of registered gift deed dated 19.12.1963, theappellant had transferred around 17.25 standard acres to his son.

39. Section 30D provides that any transfer, on or after 25.02.1958,Cother than the ones provided in sub-section 1(i) and 1(ii) shall be deemedto have been entered to defeat the purpose of ceiling act. Suchtransactions were declared to be void. The aforesaid two exceptionsbeing transfer by partition and transfer to a landless person.

40. However, Section 30DD provides further exceptions to SectionD30D as it recognizes certain transfer after the cut-off date providedunder Section 30D. Section 30DD recognizes transfers of area up to 30standard acres made in favour of an agriculturalist, his son or brotherwho are capable of doing agriculture and also intend to take up agricultureas a profession. However, such transfer must have been made before31.12.1969 and the transferee must have attained the age of majority onEor before the aforesaid date.

41. In the present case, the respondents have submitted that thetransfer is barred under Section 30D, therefore the State has a right ofresumption over the excess area of 4.5 acres as per Section 30C. Onthe contrary, the appellant has argued that the transfer was protectedFunder Section 30DD.

42. Our attention is drawn again to the registered gift deed dated19.12.1963. The gift deed itself contains the recitals that “…The aforesaid land which is of my khatedari (ownership) andonwhich I am carrying out cultivationand is in my possession.GOut of the aforesaid land in all the khasra’s 1/2 part means 50percent I am giving you in gift being my younger son with mypleasure.…From today you are the owner of the half of the landgifted to you and you will have possession hereafter. You havethe complete right over the aforesaid land for cultivation H

from today onward. Now you get the gifted land mutated inyour name.”

43. It is, thus, apparent that the legislature has carved out twoseparate categories of lands, one which is includable and other which isoutside the purview of ceiling laws. Once such a classification has beenmade, with their being no challenge to its vires, it is the solemn duty ofevery authority to give full effect to the same, in both letter and spirit.Although, it is possible that there can be a voluntary transfer whichwould meet the qualifications of both Sections 30D and Section 30DD,however, it is significant to note that Section 30DD opens up with anon-obstante clause with overriding effect on Section 30D, as a resultof which, any land included within its purview would be protected fromthe rigors of Section 30D of the Tenancy Act of 1955. Therefore, if theappellant succeed in its endeavor to establish that the transfer was coveredunder Section 30DD of the Tenancy Act of 1955, then such transferredland has to be exempted from computation of confiscable land, irrespectiveof the fact that it falls within the ceiling limit as prescribed under Section30D of the Tenancy Act of 1955.

44. Another significant piece of evidence is the statement of thetransferor-appellant dated 31.08.1984, wherein he has stated that thetransferee-son was living separately and was cultivating the aforesaidgifted property. It is also mentioned that the transferee is in possessionof an ox and equipments for ploughing and agriculture. The aforesaidfacts have been reiterated by the transferee as well vide his statementdated 15.12.1988, wherein he has clearly stated that, he is in independentpossession of the gifted property and has been cultivating the said land.

45. The aforesaid pieces of evidence clearly indicate that due tocertain family issues, the appellant and his son were living separately.During such separation, when the transferee-son had already attainedthe age of majority, the appellant-owner of the land, who was anagriculturalist himself, transferred the aforesaid land in favour of hisson, so as to enable him to cultivate the same. The statements oftransferor and the transferee clearly indicate that the transferee had theequipment and skills and was sustaining himself as an agriculturalist.

46. Lastly, it must be taken into consideration that, the aforesaidtransfer was executed way before the cut-off date stipulated under A

B

C

D

E

F

G

H

ASection 30DD i.e. 31.12.1969. Therefore, the registered gift deed dated19.12.1963 was a bona fide transfer squarely covered within the ambitsof Section 30DD, which intended to protect the rights of agriculturalists.Issue no. 3, stands answered in favour of the appellant, as the transfer isnot invalid as it stands protected as per the provision of Section 30DD ofthe Tenancy Act of 1955.B

47. In light of the aforesaid findings, the decision rendered by theDivision Bench of the High Court is liable to be set aside. The transferof the land being valid under Section 30DD of the Tenancy Act of 1955,the ceiling area of the appellant falls within the ceiling limit as providedunder Section 30C.C

48. There is no gainsaying that Section 6 of the Ceiling Act of1973 also does not advance the case of the State. Firstly, the repeal ofChapter III-B of the Tenancy Act of 1955 through Section 40 of theCeiling Act of 1973 is not retrospective. Hence, the provisions of theCeiling Act of 1973 are not attracted in the present case as the case wasDre-opened and decided under the provisions of the of Tenancy Act of1955. Secondly, Section 6 of the Ceiling Act of 1973 declares that everytransfer of land including by way of gift, made on or after 26-09-1970and before 01-01-1973, shall be deemed to have been made to defeatthe provisions of the Ceiling Act of 1973. In the instant case, the giftEdeed was executed on 19-12-1963, that is much before 26-09-1970.Therefore also, Section 6 of the Ceiling Act of 1973 does not affect thetransfer of land by the appellant-donor in favour of the donee-son. Thirdly,there is no finding that the gift deed in the present case was actuatedupon any extraneous consideration. Hence, it constitutes a bona fidetransfer which are exempted from the rigors of Section 6 of the CeilingFAct of 1973.

49. The appeal stands allowed in the aforesaid terms. Pendingapplications, if any, stand disposed of.

GDevika Gujral

Appeal allowed.

H