VITHALDAS JAGANNATH KHATRI (DEAD) THROUGH SMT. SHAKUNTALA ALIAS SUSHMA & ORS. versus THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS. on 19 February 2020

VITHALDAS JAGANNATH KHATRI (DEAD)THROUGH SMT. SHAKUNTALA ALIAS SUSHMA & ORS.

v.

THE STATE OF MAHARASHTRA REVENUEAND FOREST DEPARTMENT & ORS.

(Civil Appeal No. 6006 of 2009)

FEBRUARY 19, 2020

[R. F. NARIMAN, S. RAVINDRA BHAT ANDV. RAMASUBRAMANIAN, JJ.]

Maharashtra Agricultural Lands (Ceiling on Holdings) Act,1961: ss.8, 10, 11, 21, 44B – Ceiling limits – Partition Deed dated31.01.1970 (duly registered on 1.07.1970) executed betweenappellant, his wife, minor son and three minor daughters in respectof agricultural land of HUF – On 19.11.1976, 59 acres and 35guntas of land of appellant declared surplus by SDO – Appeal filedby appellant, his wife, minor son and elder daughter – Two otherminor daughters did not appeal being satisfied with the order ofSDO since no part of land that devolved upon them by means ofpartition deed was declared surplus – State filed cross objectionschallenging the exclusion of land of the two daughters but did notimplead them – Appellate authority allowed the objections holdingthat the partition deed though before the cut off date was againstthe principles of Hindu Law to the extent that it gave share to minordaughters in ancestral land – Whether the partition deed registeredprior to cut-off date of 26.09.1970 was against the principles ofHindu Law to the extent it gave a share to minor daughters in theland and on that basis, was partition deed of no effect in law –Held: It is clear from the provisions of the 1961 Act that transfersor partitions of land made in anticipation of or in order to avoid ordefeat the 1972 Amending Act were to be ignored in calculatingceiling limits – Under s.21, the Collector has to make a declarationas to entitlement of a person or family unit to hold within the ceilingarea – Further, s.44B excludes pleaders from appearing on behalfof any party in any of the proceedings under the 1961 Act – This isfor the reason that the Collector has to determine on the facts ofeach case, based on returns filed if any, as to what areas are to be

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Aexcluded so far as determination of ceiling of a person or familyunit is concerned – If it were to be held that the Collector could gointo a trial as to genuineness of a particular partition deed, eventhough it is before the cut-off date, it would extend the legal fictionthat is limited to transfers and partitions made after the cut-off date;and secondly, if a period even before the cut -off date can beBconsidered, it would render the cut-off date otiose, as then in allcases the Collector could go into whether a particular transfer orpartition has been entered into to avoid the effect of the 1972Amendment Act, which is an enquiry restricted only to transfersand partitions which take place on or after 26.09.1970 upto theCcommencement date – Also, if the Collector were to substitute himselfas a Civil Court deciding a Civil Suit, it would be absolutely essentialfor a person or family unit to engage a pleader of his choice toargue all the ramifications that his case may have, both in fact andin law – In fact, a Civil Court alone would have the jurisdiction todecide a question as to whether a partition deed entered into beforeDthe cut- off date is or is not sham, which would involve a declarationthat the partition be declared void – The 1961 Act, therefore, barsthe jurisdiction of the Civil Court only insofar as transfers andpartitions are entered into on or after 26.09.1970 and before thecommencement date, and not to transfers and partitions that takeEplace before the cut-off date – This apart, once it is clear that thedaughters are affected by virtue of the partition deed being held tobe non est in law by the appellate tribunal, they ought to have beenmade parties to the appeal so that they could have made argumentsin favour of the legal validity of the partition deed – This opportunitybeing denied to them is also fatal to the appellate authority’s order,Fwhich has, therefore, wrongly been upheld by the High Court –Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings)and (Amendment) Act, 1972 – Hindu Law – Partition – Jurisdiction– Interpretation of statutes – Legal fiction – Party, impleadment of.

Maharashtra Agricultural Lands (Ceiling on Holdings) Act,G1961: ss.8, 10 and 11 – Transfer and partition after cut-off date –Jurisdiction of Collector to declare such transfer/partition shamfor determining ceiling area – Held: It is not possible to state thatwherever the expressions “transfer” and “partition” occur in ss.8,10 and 11 of the 1961 Act, they must be understood as meaningHtransfers and partitions which are genuine – If the word “genuine”

is added, it would amount to straining the language of theseprovisions and giving these provisions a construction which theycannot possibly bear - a construction that would go against theobject of giving the Collector a limited jurisdiction to decide whetherlands fall within the ceiling area, and in so doing, whether transfersand partitions between the cut-off date and commencement dateshould be “ignored” – The language of s.11 also leads to theconclusion that even in case of a partition that is made after thecut-off date and before the commencement date, the power of theCollector is not to declare such partition sham, and therefore void,which is for a Civil Court to do, but is only to ignore such partitionfor the purpose of calculating ceiling area – Land Laws –Interpretation of Statutes.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. It is clear from the provisions of the 1961 Actthat transfers or partitions of land made in anticipation of or inorder to avoid or defeat the 1972 Amending Act were to beignored in calculating ceiling limits. This was so laid down by theAmending Act, 1975, which made 26.09.1970 the cut-off date afterwhich such transfers became suspect. The 1961 Act does not inany manner declare such transfers to be void. However, if thecontrary is proved on the facts of a given case, i.e. that a bonafidetransfer or partition was in fact effected after the cut-off date, theperson affected would be out of the clutches of Section 10 and/orSection 11 of the 1961 Act. In fact, what is important is theexpression “shall accordingly be ignored”, which occurs inSection 11. [Para 16][933 A-D]

2. In terms of Section 13, where a person or member of afamily unit either fails without reasonable cause to furnish a return,or furnishes a false return, he becomes liable to a penalty. A falsereturn may be ignored by the Collector, requiring the person orfamily unit to submit a true and correct return complete in allparticulars under Section 13(2). If thereafter, any such person orfamily unit fails to comply with the order within the time sogranted, then, as a penalty for failure to furnish such return or atrue and correct return complete in all particulars, the right, titleand interest in the land held by him or the family unit as the casemay be, in excess of the ceiling area, shall, subject to the ABC

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Aprovisions of Chapter 4, be forfeited to the State Governmentand vest in that Government. This Section gives a limitedjurisdiction to the Collector to determine whether a true andcorrect return complete in all particulars has been given. Thus, aCollector would be well within his jurisdiction to state that aregistered partition deed entered into after 26.09.1970 has beenBsuppressed in the return furnished, as a result of which a penaltyof INR 500 may be imposed, or excess land forfeited underSection 13(3). This jurisdiction is limited only to the factum of apartition deed having been suppressed from the return, and doesnot extend to conduct an enquiry as to whether a partition deedCprior to 26.09.1970 is or is not a sham document. [Para 17][933D-H; 934-A]

3. By Section 14 of the 1961 Act, the Collector is then tohold an enquiry either suo motu or otherwise, whether or not areturn has been filed, in respect of every person or a family unitDholding land in excess of the ceiling area. In so doing, Section 18states that the Collector must consider several matters including,under sub-clause (b), whether any land transferred between26.09.1970 and the commencement date (which is 02.10.1975),or any land partitioned after the cut-off date should either beconsidered or ignored in calculating the ceiling area as providedEin Sections 10 and 11 of the 1961 Act. If Section 18(a) to (k) areseen, the evidence adduced at the hearing to be given to theholder and other persons interested in the land, only goes tocalculating the total area of the land, including land held by theholder between 26.09.1970 and 02.10.1975 and lands that haveFbeen acquired after 02.10.1975. All the details mentioned inSection 18 only speak of ignoring certain transfers or partitionsbetween the cut-off date and the commencement date, andotherwise would only go to the calculation of lands held by persons,and then applying the drill of the ceiling provisions of the 1961

Act. To state that Section 18(l) is a catch-all provision by whichGthe Collector can determine whether a particular transfer orpartition is a sham transaction, even if entered into before thecut-off date, is to go beyond the jurisdiction conferred on theCollector by the 1961 Act. In point of fact, even the language ofSection 18(l) makes it clear that “any other matter” isHcircumscribed by the following words: “for the purpose of

calculating the ceiling area, and delimiting any surplus land.” [Para18][934 B-G]

4. Under Section 21, the Collector has to make a declarationas to entitlement of a person or family unit to hold within theceiling area and area of land which is in excess of the ceilingarea. Further, what is of importance is that Section 44B excludespleaders from appearing on behalf of any party in any of theproceedings under the 1961 Act. This is for the reason that theCollector has to determine on the facts of each case, based onreturns filed if any, as to what areas are to be excluded, and whatareas of land are to be included so far as determination of ceilingof a person or family unit is concerned. If it were to be held thatthe Collector could go into a trial as to whether a particularpartition deed is or is not sham, even though it is before the cut-off date, would have two effects that are not warranted in law -first, it would extend the legal fiction that is limited to transfersand partitions made after the cut-off date; and second, if a periodeven before the cut-off date can be considered, it would renderthe cut-off date otiose, as then in all cases the Collector could gointo whether a particular transfer or partition has been enteredinto to avoid the effect of the 1972 Amendment Act, which is anenquiry restricted only to transfers and partitions which take placeon or after26.09.1970 upto the commencement date. Also, if theCollector were to substitute himself as a Civil Court deciding aCivil Suit, it would be absolutely essential for a person or familyunit to engage a pleader of his choice to argue all the ramificationsthat his case may have, both in fact and in law. In fact, a CivilCourt alone would have the jurisdiction to decide a question asto whether a partition deed entered into before the cut-off date isor is not sham, which would involve a declaration that the partitionbe declared void. The 1961 Act therefore bars the jurisdiction ofthe Civil Court only insofar as transfers and partitions are enteredinto on or after 26.09.1970 and before the commencement date,and not to transfers and partitions that take place before the cut-off date. [Para 19][934 F-H; 935 A-E]

5. As a matter of fact, if the appeal provision, i.e. Section 33of 1961 Act is to be seen, it is clear that appeals are provided tothe Maharashtra Revenue Tribunal against a declaration or part AB

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Athereof made under Section 21 of the 1961 Act. The persons whowould be aggrieved by such declarations can only be the personor family unit whose ceiling area is determined or the landlord towhom possession of land is to be restored or the right, title andinterest of the person or family unit whose land is to be forfeitedto the State Government. If at all a cross-objection can be takenBby a respondent under Section 33(1A), it can only be a person orfamily unit or landlord spoken of in Section 21(1) of the 1961 Act.The State Government may perhaps file a cross-objection whereit contends that land has wrongly not been forfeited to it. Butsuch is not the case on the facts of this appeal. Thus, the StateCtaking a cross objection on the facts of this case would itself beoutside Section 33(1A). If at all the State can be said to beaggrieved by a declaration made under Section 21, a suo motopower of revision is given to the State Government under Section45, which on the facts of a particular case may well be exercised.This apart, once it is clear that the elder daughters are affectedDby virtue of the partition deed being held to be non est in law bythe appellate tribunal, they ought to have been made parties tothe appeal so that they could have made arguments in favour ofthe legal validity of the partition deed. This opportunity beingdenied to them is also fatal to the appellate authority’s order,Ewhich has therefore wrongly been upheld by the Single Judgeand Division Bench of the High Court. [Paras 20, 21][935 E-H;936 A-B]

6. It is not possible to state that wherever the expressions“transfer” and “partition” occur in Sections 8, 10 and 11 of theF1961 Act, they must be understood as meaning transfers andpartitions which are genuine. If the word “genuine” is added, itwould amount to straining the language of these provisions andgiving these provisions a construction which they cannot possiblybear – a construction that would go against the object of givingthe Collector a limited jurisdiction to decide whether lands fallGwithin the ceiling area, and in so doing, whether transfers andpartitions between the cut-off date and commencement dateshould be “ignored”. The language of Section 11 also leads tothe conclusion that even in case of a partition that is made after H

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the cut-off date and before the commencement date, the powerof the Collector is not to declare such partition sham, andtherefore void, which is for a Civil Court to do, but is only toignoresuch partition for the purpose of calculating ceiling area.[Para 28][940 F-H; 941 A-B]

Raghunath Laxman Wani and Ors. v. State ofMaharashtra (1971) 3 SCC 391 : [1972] 1 SCR 48;Jugal Kishore v. State of Maharashtra (1989) Supp. 1SCC 589 : [1988] 3 Suppl. SCR 270; State ofMaharashtra and Anr. v. Rattanlal (1993) 3 SCC 326 :[1992] 3 Suppl. SCR 536 – distinguished.

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Gurdit Singh v. State of Punjab (1974) 2 SCC 260 :[1975] Suppl. SCR 453; Uttar Chand v. State ofMaharashtra (1980) 2 SCC 292 : [1980] 2 SCR 1048;Bhupendra Singh v. State of Maharashtra (1996) 1 SCC277 : [1995] 5 Suppl. SCR 491 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6006of 2009.

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From the Judgment and Order dated 27.11.2007 of the High Courtof Bombay Bench at Nagpur in Letters Patent Appeal No. 3 of 1991.

Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta,Jamshed Bey, Amit Singh Chauhan, Ekansh Bansal, Mrs. Bandana SinghGand Ajay Kumar Talesara, Advs. for the Appellants.

Rahul Chitnis, Aaditya A. Pande and Sachin Patil, Advs. for theRespondents.

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AThe Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. This appeal has come to us owing to a difference of opinionbetween Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgmentdated 29.08.2019.B

2. The brief facts necessary to appreciate the controversy in thisappeal are as follows: a partition deed dated 31.01.1970 (duly registeredon 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatriand his minor son and three minor daughters.In terms of this document,the agricultural land of the Hindu Undivided Family (HUF) is sought toCbe divided by mentioning that parties two to five - who are the fourchildren of Vithaldas - have to be provided expenses for their educationand marriage, which will be borne out of the separate property allottedto each. An earlier partition deed was executed between Vithaldas andhis father Jagannath on 20.01.1955.Separate provision was made in favourDof the wife of Vithaldas by means of a gift deed of land in her favour.

3. At this stage, it is necessary to set out certain provisions of‘The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961’(hereinafter referred to as the “1961 Act”). Section 2(4) of the 1961 Actdefines ‘appointed day’ as meaning the day on which the 1961 Act comesEinto force, which is 26.01.1962. Section 2(6A) defines ‘commencementdate’ as meaning the 2nd day of October, 1975. Section 2(11) defines‘family’ as follows:

“(11) “family” includes, a Hindu undivided family, and in the caseof other persons, a group or unit, the members of which by customFor usage, are joint in estate or possession or residence;”

Section 2(11-A) defines ‘family unit’ as follows:

“(11-A) “family unit” means a family unit as explained in section4;”

4. By Section 3, no person orfamily unit shall, after theG‘commencement date’, hold land in excess of the ceiling area, as isdetermined in the manner provided. By Section 4(1), all land held byeach member of a family unit, whether jointly or separately, shall, for thepurposes of determining the ceiling area of the family unit, be deemed tobe held by the family unit. The explanation defines ‘family unit’ as follows:H

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

“Explanation.- A “family unit” means,-

(a) a person and his spouse (or more than one spouse) and theirminor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses,and the minor sons and minor unmarried daughters; or

(c) where the spouses are dead, the minor sons and minorunmarried daughters of such deceased spouses.”

5. Section 5 then fixes the ceiling area. Section 8 deals with landheld in excess of the ceiling area on or after the commencement date.Section 9 is a restriction on acquisition of land in excess of the ceilingarea on or after the commencement date. Section 10 is important and isset out hereunder:

“10. Consequences of certain transfers and acquisitions of land.-(1) If - (a) any person or a member of a family unit, after the 26th day ofSeptember, 1970 but before the commencement date, transfersany land in anticipation of or in order to avoid or defeat the objectof the Amending Act, 1972, or (b) any land is transferred in contravention of section 8, then, incalculating the ceiling area which that person, or as the case maybe, the family unit, is entitled to hold, the land so transferred shallbe taken into consideration, and the land exceeding the ceilingarea so calculated shall be deemed to be in excess of the ceilingarea for that holding, notwithstanding that the land remaining withhim or with the family unit may not in fact be in excess of theceiling area.

If by reason of such transfer, the holding of a person, or as thecase may be, of the family unit is less than the area so calculatedto be in excess of the ceiling area, then all the land of the person,or as the case may be, the family unit shall be deemed to besurplus land; and out of the land so transferred and in possessionof the transferee unless such land is liable to forfeiture under theprovisions of sub-section (3), land to the extent of such deficiencyshall, subject to rules made in that behalf, also be deemed to besurplus land, notwithstanding that the holding of the transfereemay not in fact be in excess of the ceiling area.

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Explanation.- For the purposes of clause (a) ‘transfer’ has thesame meaning as in section 8.

All transfers made after the 26[th ]day of September, 1970 but beforethe commencement date, shall be deemed (unless the contrary isproved) to have been made in anticipation of or in order to avoidor defeat the object of the Amending Act, 1972.

Explanation.- For the purposes of this sub-section, a transfershall not be regarded as made on or before 26[th ]September, 1970if the document evidencing the transfer is not registered on orbefore that date or where it is registered after that date, it is notpresented for registration on or before the said date.

(2) If any land is possessed on or after the commencement dateby a person, or as the case may be, a family unit in excess of theceiling area or if as a result of acquisition (by testamentarydisposition, or devolution on death, or by operation of law) of anyland on or after that date, the total area of land held by any person,or as the case may be, a family unit, exceeds the ceiling area, theland so in excess shall be surplus land.

(3) Where land is acquired in wilful contravention of section 9,then as a penalty therefore, the right, title and interest of the person,or as the case may be, the family unit or any member thereof inthe land so acquired or obtained shall, subject to the provisions ofChapter IV, be forfeited, and shall vest without any furtherassurance in the State Government:

Provided that, where such land is burdened with an encumbrance,the Collector may, after holding such inquiry as he thinks fit andafter hearing the holder and the person in whose favour theencumbrance is made by him, direct that the right, title and interestof the holder in some other land of the holder equal in extent tothe land acquired in wilful contravention of section 9, shall beforfeited to Government.”

Section 11 states as follows:

“11. Restriction on partition.- Where any land held by a family ispartitioned after the 26[th ]day of September, 1970, the partition somade shall be deemed (unless the contrary is proved) to have VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

been made in anticipation of or in order to avoid or defeat theobject of the Amending Act, 1972, and shall accordingly be ignored,and any land covered by such partition shall, for the purposes ofthis Act, be deemed to be the land held by the family; and theextent of share of each person in the land held by the family shallbe taken into consideration for calculating the ceiling area inaccordance with the provisions of section 3.

Explanation.- For the purposes of this section, ‘partition’ meansany division of land by act of parties made inter vivos, and includesalso partition made by a decree or order of a court, tribunal orauthority.”

6. Section 12 deals with the submission of returns by a person ora family unit. Section 13 is important and states as follows:

“13. Failure to submit return.- (1) Where a person or member ofa family unit required by section 12 to furnish a return,- (a) fails without reasonable cause so to do, within the time specifiedin that section, or (b) furnishes a return which he knows, or has reason to believe,to be false, he shall be liable to pay a penalty which may extend inthe former case to one hundred rupees, and in the latter case tofive hundred rupees.

(2) Where the Collector has reason to believe that a person or amember of a family unit required by section 12 to furnish a returnhas, without reasonable cause, failed so to do, or has submitted areturn which he knows or has reason to believe to be false, theCollector shall issue a notice calling upon such person or memberto show cause within fifteen days of the service thereof, why thepenalty provided by sub-section (1) should not be imposed uponhim. If the Collector, on considering the reply or other causeshown, is satisfied that the person or member has withoutreasonable cause failed to submit the return within time, or hassubmitted a return which he knew or had reason to believe to befalse, he may impose the penalty provided in the last precedingsub-section and require him to submit a true and correct returncomplete in all particulars, within a period of fifteen days from thedate of the order.

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A(3) If the person or member fails to comply with the order withinthe time so granted by the Collector, then as a penalty for failureto furnish a return, or a true and correct return complete in allparticulars, the right, title and interest in the land held by him or asthe case may be, by the family unit in excess of the ceiling areashall, subject to the provision of this Chapter, be forfeited to theBState Government and shall thereupon vest without furtherassurance in that Government.”

Section 14(1) states as follows:

“14. Power of Collector to hold enquiry.- (1) As soon as may beCafter the expiry of the period referred to in section 12, or thefurther period referred to in sub-section (2) of section 13, theCollector shall, either suo motu whether or not a return had beenfiled or on the basis of the returns submitted to him under either ofthose sections, and such record as he may consider it necessaryto refer to, hold an enquiry in respect of every person or familyDunit holding land in excess of the ceiling area, and shall, subject tothe provisions of this Chapter, determine the surplus land held bysuch person or family unit.”

Section 18 is important and is set out hereunder:E“18. Collector to consider certain matters.- On the day fixed forhearing under section 14, or on any other day or days to which theinquiry is adjourned, the Collector shall, after hearing the holderand other persons interested and who are present and any evidenceadduced, consider the following matters, that is to say,- F(a) what is the total area of land which was held by the holder onthe 26th day of September, 1970; (b) whether any land transferred between the period from the26th day of September, 1970 and the commencement date, or anyland partitioned after the 26th day of September, 1970, should beconsidered or ignored in calculating the ceiling area as providedGby sub-section (1) of section 10 or section 11; (bb) whether the holder has any share in the land held by a familyor held or operated by any co-operative society or held jointlywith others or held as a partner in a firm; and the extent of suchshare; H

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

(c) what is the total area of land held by the holder on thecommencement date?

(d) whether any transfer or partition of land is made by the holderin contravention of section 8 or 11 and if so, whether, the land sotransferred or partitioned should be considered or ignored incalculating the ceiling area under the provisions of sub-section (1)of section 10 or section 11?

(e) whether any land has been acquired or possessed on or afterthe commencement date by transfer or by partition?

(f) whether any land has been acquired on or after thecommencement date by testamentary disposition, devolution ondeath or by operation of law?

(g) what is the total area of land held at the time of the enquiry,and what is the area of land which the holder is entitled to hold?

(h) whether any land is held by the holder as tenant, and if so,whether his landlord has a subsisting right of resumption of theland for personal cultivation, under the relevant tenancy lawapplicable thereto?

(i) whether any land held by the holder is to be forfeited toGovernment under sub-section (3) of section 10, or of section 13,or should be deemed to be surplus land under any of the provisionsof this Act?

(j) whether the proposed retention of land by the holder is inconformity with the provisions of section 16?

(k) which particular lands out of the total land held by the holdershould be delimited as surplus land?

(l) any other matter which, in the opinion of the Collector, isnecessary to be considered for the purpose of calculating theceiling area, and delimiting any surplus land.”

Section 21(1) and 21(3) then state:

“21. Collector to make declaration regarding surplus land etc.,and consequences thereof.- (1) As soon as may be after theCollector has considered the matters referred to in section 18 andthe questions, if any, under sub-section (3) of section 20, he shallmake a declaration stating therein his decision on-

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A(a) the total area of land which the person or family unit is entitledto hold as the ceiling area; (b) the total area of land which is in excess of the ceiling area;(c) the name of the landlord to whom possession of land is to berestored under section 19, and area and particulars of such land;B(d) the area, description and full particulars of the land which isdelimited as surplus land; (e) the area and particulars of land out of surplus land, in respectof which the right, title and interest of the person or family unitCholding it is to be forfeited to the State Government.

The Collector shall announce his declaration in the presence ofthe holder and other persons interested who are present at thetime of such declaration.

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(3) The declaration made under this section, subject to the decisionof the Maharashtra Revenue Tribunal in appeal under section 33,or of the State Government in revision under subsection (2) ofsection 45, shall be final and conclusive, and shall not be questionedin any suit or proceedings in any court.”

E7. Appeals are provided against the Collector’s orders and awardsunder Section 33 of the 1961 Act. This again is an important provisionand is set out hereunder:

“33. Appeals.- (1) An appeal against an order or award of theCollector shall lie to the Maharashtra Revenue Tribunal in theFfollowing cases:-

(1) an order under sub-sections (2) and (3) of section 13 not beingan order under which a true and correct return complete in allparticulars is required to be furnished;

(2) a declaration or any part thereof under section 21; G

(2a) an order under section 21-A ;

(3) an award under section 25;

(4) an order refusing sanction to transfer or divide land undersection 29; H

[R. F. NARIMAN, J.]

(5) an order of forfeiture under sub-section (3) of section 29;

(6) an amendment of declaration or award under section 37; and

(7) an order of summary eviction under section 40.

(1A) Any respondent, though he may not have appealed from anypart of the decision, order, declaration or award, may not onlysupport the decision, order, declaration or award, as the case maybe, on any of the grounds decided against him, but take cross-objection to the decision, order, declaration or award which hecould have taken by way of an appeal:

Provided that, he has filed the objection in the MaharashtraRevenue Tribunal within thirty days from the date of service onhim of notice of the day fixed for hearing the appeal, or suchfurther time as the Tribunal may see fit to allow; and thereupon,the provisions of Order 41, rule 22 of the First Schedule to theCode of Civil Procedure, 1908, (V of 1908) shall apply in relationto the cross-objection as they apply under that rule.

(2) Every petition of appeal under sub-section (1), shall beaccompanied by a copy of the decision, order, declaration or award,as the case maybe, against which the appeal is made.

(3) In deciding such appeal, the Maharashtra Revenue Tribunalshall exercise all the powers which a Court has, and follow thesame procedure which a Court follows, in deciding appeals fromthe decree or order of an original Court, under the Code of CivilProcedure, 1908, (V of 1908).

Section 41 bars the jurisdiction of the Civil Court as follows:

“41. Bar of jurisdiction.- No Civil Court shall have jurisdiction tosettle, decide or deal with any question which is by or under thisAct required to be settled, decided or dealt with bythe Commissioner, Collector, Tribunal, the officer authorised undersection 27, the Maharashtra Revenue Tribunal or the StateGovernment.

Explanation.- For the purpose of this section a Civil Court shallinclude a Mamlatdar’s Court constituted under the Mamlatdars’Courts Act, 1906, (Bom. II of 1906).”

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ASection 44B excludes pleaders from appearance as follows:

“44B. Pleaders etc., excluded from appearance.- Notwithstandinganything contained in this Act or any law for the time being inforce, no pleader shall be entitled to appear on behalf of any partyin any proceedings under this Act before the Authorized Officer,Bthe Tribunal, the Collector, the Commissioner, the State Governmentor the Maharashtra Revenue Tribunal:

Provided that, where a party is a minor or lunatic, his guardianmay appear, and in the case of any other person under disability,his authorised agent may appear.

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Explanation.- For the purposes of this section, the expression“pleader” includes an advocate, attorney, vakil or any other legalpractitioner.”

Section 45 provides for revision by the State Government andstates:

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“45. Control.- (1) In all matters connected with this Act, the StateGovernment shall have the same authority and control over theofficers authorised under Section 27, the Collectors and theCommissioners acting under this Act, as they do in the generaland revenue administration.

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(2) The State Government may, suo motu or on an applicationmade to it by the aggrieved person, at any time, call for the recordof any inquiry or proceedings under sections 17 to 21 (bothinclusive) for the purpose of satisfying itself as to the legality orpropriety of any inquiry or proceedings (or any part thereof) underFthese sections and may pass such order thereon as it deems fit,after giving the party a reasonable opportunity of being heard:

Provided that, nothing in this sub-section shall entitle the StateGovernment to call for the record of any inquiry of proceedingsof a declaration or part thereof under section 21 in relation to anyGland, unless an appeal against any such declaration or part thereofhas not been filed within the period provided for it, and a period ofthree years from the date of such declaration or part thereof hasnot elapsed.

Provided further that, no order shall be passed under this sectionHso as to affect any land which is already declared surplus anddistributed according to the provisions of this Act:

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

Provided also that the revisional jurisdiction under this section shallbe exercised only where it is alleged that the land declared surplusis less than the actual land which could be declared surplus.

(3) The State Government may, subject to such restrictions andconditions as it may impose by notification in the Official Gazette,delegate to the Commission the power conferred on it by sub-section (2) of this section or under any other provisions of this Actexcept the power to make rules under section 46 or to make anorder under section 49.”

8. It will thus be seen that under Section 11 of the 1961 Act,where any land held by a family is partitioned after the cut-off date of26.09.1970, the partition so made shall be deemed, unless the contrary isproved, to have been made in anticipation of, or in order to avoid ordefeat, the Amending Act of 1972 and shall accordingly be ignored.Thereis no doubt that on the facts of this case that the partition deed, as wellas its registration, is prior to the cut-off date.

9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldaswas declared surplus. An appeal preferred against this order wasdismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On02.03.1982, a learned Single Judge of the Nagpur Bench of the BombayHigh Court remitted the matter to the Surplus Land DeterminationTribunalfor fresh enquiry. On remand, a fresh order was passed by the Sub-Divisional Officer on 07.05.1984, where land admeasuring 59 acres 35gunthas was deemed to be surplus. An appeal was filed against theaforesaid order by Vithaldas, his wife, his son and the third daughterBela Devi under Section 33 of the 1961 Act. The two other minordaughters did not file any appeal, as they were satisfied with the viewadopted by the Sub-Divisional Officer, by which no part of the propertythat devolved on them by means of the partition deed was declaredsurplus. The State filed cross-objections in the appeal filed by Vithaldas,challenging the exclusion of the land, inter alia, of the two elder daughters.However, the State did not take care to implead them. The appeal filedby Vithaldas et. al. was dismissed by the Appellate Authority, who allowedthe cross objections of the State by its order dated 03.12.1984. Theappellate authority found that the partition deed dated 31.01.1970, thoughbefore the cut-off date, was against the principles of Hindu Law, to theextent that it gave a share to minor daughters in ancestral land. On thisbasis, the partition deed was declared to be of no effect in law.

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A10. The aforesaid appellate order was challenged by Vithaldasand his wife in writ proceedings before the Bombay High Court. Thelearned Single Judge dismissed the writ petition in September, 1987. Anintra-court appeal was preferred which was then dismissed by theimpugned order dated 27.11.2007. A Special Leave Petition was filed byVithaldas through his legal representatives who are the two elderBdaughters, as his legal heirs, as by now Vithaldas had expired. Duringthe course of the initial hearing, this Court, by its order dated 23.11.2016,passed an order stating that it wished to see revenue entries in terms ofSection 148 and 149 of the Maharashtra Land Revenue Code, 1966,post-execution of the partition deed.An additional affidavit was filed byCthe son of the late Vithaldas, stating that records from 1970-75 are in amutilated condition, but that from the records made available, the twoelder daughters were shown as occupants from 1972 to 1976 for surveynos. 12 and 14, through their guardian, i.e. their grandfather.

11. When the matter was argued before a Division Bench of thisDCourt, Justice Sanjay Kishan Kaul, after stating these facts, held that alimited fiction has been created by Section 11 of the 1961 Act, as a resultof which, if a partition deed is prior to the cut-off date, it cannot beignored under Section 11.The learned Judge also held that the State’scross-objections being allowed in the absence of the two elder daughterswas fatal, as they were both necessary parties to the proceedings. TheElearned Judge then went into the unmarried daughters’ claims in HUFproperty and held:

“38. The legal view, thus, is very clear:

“38. The legal view, thus, is very clear:

a. A provision for marriage of unmarried daughters can be madeFout of ancestral property.b. Such provision can be made before, at the time, or even afterthe marriage.

c. The provision is being made out of pious obligation, though theright of women got diluted over a period of time. However, withGthe amendment to the Hindu Succession Act, in 2005, a specificright is now conferred on women to get a share on partition ofancestral property, including the right to claim partition. Asmentioned above this change was brought about in Maharashtrain 1994, itself.”

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[R. F. NARIMAN, J.]

12. The learned Judge went on to further observe that a provisionfor an unmarried daughter in a partition deed may partake the nature ofa gift, and then concluded:

“45. In the end, it may be noted that the only aspect on which thedebate occurred was the share of the two elder daughters, andthe right to retain the land as their separate land, without it beingadjusted with the lands of late Vithaldas. The findings above, thus,lead to the conclusion that the view taken by the SDO vide orderdated 7.5.1984, regarding the land of the two elder daughters, isthe correct view, and the subsequent view by the appellate authorityfaulted on more than one reason, as mentioned aforesaid. Thefurther imprimatur of that view by the learned Single Judge andthe Division Bench of the High Court, thus, also cannot be sustained.

46. The impugned orders of the appellate authority, the learnedsingle Judge and the Division Bench are, thus, liable to be setaside and the view taken by the SDO, restored, qua the landslocated in Survey Nos. 12 & 14 of Babhulgaon, giving rights tothe two elder daughters, who are the appellants in the presentproceedings.”

13. K.M. Joseph, J. differed with Justice Kaul. According to thelearned Judge, the questions that would arise for consideration by theCourt are as follows:

“114. The following questions would arise for consideration bythe Court:-

1. Whether the authorities under the Act have the power to findthat the partition entered into before 26.9.1970, was sham orcollusive and thereby ignore the same?

2. Notwithstanding the registered partition dated 31.01.1970,whether the property allotted to the elder daughters of ShriVithaldas is liable to be included in the account of the family unit?

3. What is the effect of the cross-objections of the State beingallowed in the absence of elder daughters, in the appeal beforethe Tribunal?”

After setting out the provisions of the Act, the learned Judgeconcluded as follows:

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A“130. Thus, it can be concluded as follows:

i. A transfer or a partition entered into before 26.09.1970, if it isnot genuine and is collusive or is a sham transaction, can, in agiven case, on materials being present, be found to be so by theAuthority under the Act; B

ii. What is contemplated under Sections 10 and 11 of the Act readwith Section 8, undoubtedly, is a transfer as defined in Section 8,being a genuine transaction. A fraudulent transaction or a shamtransaction if entered into before 26.09.1970, would incur the wrathof Section (3), and a farce of a partition likewise, bringing about amock division of property among the sharers, would also incurwrath of Section (3) of the Act. No doubt, even if the transactionis a sham transaction, be it a transfer or a partition, needless tosay, it would incur the wrath of Sections 10 and 11 and it wouldnot be necessary to justify the invalidity with any materials ifentered into or effected after 26.09.1970.

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iii. It does not mean that a transaction which is entered into,particularly after the Act came into force, be it a transfer or apartition, and if there are materials and circumstances broughtout, which persuades Authorities to hold that it is collusive or asham transaction and the property did not change the hands, theEproperty would not be liable to be treated as held by the previousowner as on the commencement day and included in the accountdespite the purported transfer or partition.”

14. Having concluded thus, the learned Judge then went on todeclare that the partition deed, being unnatural, was sham; thatFcoparcenary property alone is partible, and stated that the question as towhether or not a gift could have been validly made by Vithaldas to hiselder daughters cannot be gone into, as no such case had been set up.Finally, the learned Judge held that it was of no moment that cross-objections of the state were allowed without making the two elderGdaughters parties to the appeal before the appellate tribunal, and thenconcluded that the appeal should stand dismissed.

15. Shri Krishnan Venugopal, learned Senior Advocate appearingon behalf of the Appellants largely relied upon the judgment delivered byJustice Sanjay KishanKaul and in particular, strongly relied upon GurditSingh v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. StateH

of Maharashtra (1980) 2 SCC 292. On the other hand, Shri RahulChitnis, appearing for the State, largely read from Justice Joseph’sjudgment and supported it.

16. On a conspectus of the provisions of the 1961 Act that havebeen set out hereinabove, what becomes clear is that transfers orpartitions of land made in anticipation of or in order to avoid or defeatthe 1972 Amending Act were to be ignored in calculating ceiling limits.This was so laid down by the Amending Act, 1975, which made 26.09.1970the cut-off date after which such transfers became suspect.What isimportant to note is that the 1961 Act does not in any manner declaresuch transfers to be void. However, if the contrary is proved on thefacts of a given case, i.e. that a bonafide transfer or partition was infact effected after the cut-off date, the person affected would be out ofthe clutches of Section 10 and/or Section 11 of the 1961 Act. Infact,what is important is the expression “shall accordingly be ignored”, whichoccurs in Section 11.

17. The scheme of the 1961 Act is that a person or a family unithas to submit returns by certain dates and extended dates that arementioned in Sections 12 and 12-A of the 1961 Act. Section 13 is importantin that where a person or member of a family unit either fails withoutreasonable cause to furnish a return, or furnishes a false return, hebecomes liable to a penalty, which may extend to INR 100 or 500, as thecase may be. A false return may be ignored by the Collector, requiringthe person or family unit to submit a true and correct return complete inall particulars under Section 13(2), together with the penalty of INR500. If thereafter, any such person or family unit fails to comply with theorder within the time so granted, then, as a penalty for failure to furnishsuch return or a true and correct return complete in all particulars, theright, title and interest in the land held by him or the family unit as thecase may be, in excess of the ceiling area, shall, subject to the provisionsof Chapter 4, be forfeited to the State Government and vest in thatGovernment. This Section gives a limited jurisdiction to the Collector todetermine whether a true and correct return complete in all particularshas been given. Thus, a Collector would be well within his jurisdiction tostate that a registered partition deed entered into after 26.09.1970 hasbeen suppressed in the return furnished, as a result of which a penalty ofINR 500 may be imposed, or excess land forfeited under Section13(3). This jurisdiction is limited only to the factum of a partition deed A

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Ahaving been suppressed from the return, and does not extend to conductan enquiry as to whether a partition deed prior to 26.09.1970 is or is nota sham document. Also, the discretion vested in the Collector underSection 30 is at a stage anterior to the holding of an enquiry under Section14, and the resultant declaration under Section 21.

B18. By Section 14 of the 1961 Act, the Collector is then to hold anenquiry either suo motu or otherwise, whether or not a return has beenfiled, in respect of every person or a family unit holding land in excess ofthe ceiling area. In so doing, Section 18 states that the Collector mustconsider several matters including, under sub-clause (b), whether anyland transferred between 26.09.1970 and the commencement date (whichCwe have seen is 02.10.1975), or any land partitioned after the cut-offdate should either be considered or ignored in calculating the ceilingarea as provided in Sections 10 and 11 of the 1961 Act. If Section 18(a)to (k) are seen, the evidence adduced at the hearing to be given to theholder and other persons interested in the land, only goes to calculatingDthe total area of the land, including land held by the holder between26.09.1970 and 02.10.1975 and lands that have been acquired after02.10.1975. All the details mentioned in Section 18 only speak of ignoringcertain transfers or partitions between the cut-off date and thecommencement date, and otherwise would only go to the calculation oflands held by persons, and then applying the drill of the ceiling provisionsEof the 1961 Act. To state that Section 18(l) is a catch-all provision bywhich the Collector can determine whether a particular transfer or partitionis a sham transaction, even if entered into before the cut-off date, is togo beyond the jurisdiction conferred on the Collector by the 1961 Act. Inpoint of fact, even the language of Section 18(l) makes it clear that “anyFother matter” is circumscribed by the following words: “for the purposeof calculating the ceiling area, and delimiting any surplus land.”

19. This becomes even clearer when the other provisions of the1961 Act are looked at. Under Section 21, the Collector has to make adeclaration as to entitlement of a person or family unit to hold within theGceiling area and area of land which is in excess of the ceiling area.Further, what is of importance is that Section 44B excludes pleadersfrom appearing on behalf of any party in any of the proceedings underthe 1961 Act. This is for the reason that the Collector has to determineon the facts of each case, based on returns filed if any, as to what areasare to be excluded, and what areas of land are to be included so far asH

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

determination of ceiling of a person or family unit is concerned. If itwere to be held that the Collector could go into a trial as to whether aparticular partition deed is or is not sham, even though it is before thecut-off date, would have two effects that are not warranted in law -first,it would extend the legal fiction that is limited to transfers and partitionsmade after the cut-off date; and second, if a period even before thecut-off date can be considered, it would render the cut-off date otiose,as then in all cases the Collector could go into whether a particulartransfer or partition has been entered into to avoid the effect of the 1972Amendment Act, which is an enquiry restricted only to transfers andpartitions which take place on or after26.09.1970 upto thecommencement date. Also, if the Collector were to substitute himself asa Civil Court deciding a Civil Suit, it would be absolutely essential for aperson or family unit to engage a pleader of his choice to argue all theramifications that his case may have, both in fact and in law. In fact, aCivil Court alone would have the jurisdiction to decide a question as towhether a partition deed entered into before the cut-off date is or is notsham, which would involve a declaration that the partition be declaredvoid.The 1961 Act therefore bars the jurisdiction of the Civil Court onlyinsofar as transfers and partitions are entered into on or after 26.09.1970and before the commencement date, and not to transfers and partitionsthat take place before the cut-off date.

20. As a matter of fact, if the appeal provision, i.e. Section 33 of1961 Act is to be seen, it is clear that appeals are provided to theMaharashtra Revenue Tribunal against a declaration or part thereof madeunder Section 21 of the 1961 Act. The persons who would be aggrievedby such declarations can only be the person or family unit whose ceilingarea is determined or the landlord to whom possession of land is to berestored or the right, title and interest of the person or family unit whoseland is to be forfeited to the State Government. If at all a cross-objectioncan be taken by a respondent under Section 33(1A), it can only be aperson or family unit or landlord spoken of in Section 21(1) of the 1961

Act. The State Government may perhaps file a cross-objection where itcontends that land has wrongly not been forfeited to it. But such is notthe case on the facts of this appeal. Thus, the State taking a cross objectionon the facts of this case would itself be outside Section 33(1A). If at allthe State can be said to be aggrieved by a declaration made under Section21, a suo moto power of revision is given to the State Government underSection 45, which on the facts of a particular case may well be exercised.

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A21. This apart, once it is clear that the elder daughters are affectedby virtue of the partition deed being held to be non est in law by theappellate tribunal, they ought to have been made parties to the appeal sothat they could have made arguments in favour of the legal validity ofthe partition deed. This opportunity being denied to them, as has beenrightly held by Justice Kaul, is also fatal to the appellate authority’s order,Bwhich has therefore wrongly been upheld by the learned Single Judgeand Division Bench of the Bombay High Court.

22. At this stage, it is important to consider some of the judgmentsof this Court under the 1961 Act. In Raghunath Laxman Wani andOrs. v. State of Maharashtra (1971) 3 SCC 391, a Special LeaveCPetition was entertained directly against the judgment and order passedby the Maharashtra Revenue Tribunal dated 02.09.1966, in proceedingsheld by the Deputy Collector under Section 14 of the 1961 Act in respectof lands held by the appellants therein. The Deputy Collector and theTribunal concurrently found on fact that the appellants’ case of severanceDof status and partition of the family lands - partially in 1956, and then in 1960, was not acceptable. In the absence of any document regardingalleged severance of the family and partition, other factors when totedup rendered the appellants’ case of partition, first in 1956 and then in1960,‘doubtful’. Given these circumstances, this Court held that it “wouldbe more than reluctant to interfere and upset such a finding”(seeEparagraph 14). The Court then examined the scheme of the 1961 Act inparagraphs 15 to 17, and held that the ceiling area is to be ascertainedwith reference to the state of affairs existing only on the ‘appointeddate’. In this view, the Revenue Tribunal was held to be correct in nottaking into consideration three children born in the family after theFappointed date while determining the ceiling area to which the appellants’family was entitled. This case turned largely on its facts, and was in anycase decided before the introduction of Section 44-B to the 1961 Act in1976 - which forbade pleaders from arguing cases before the authoritiesunder the 1961 Act.G23. In Jugal Kishore v. State of Maharashtra (1989) Supp. (1)SCC 589, the question before this Court was whether in view of Section100(2) of the Bombay Tenancy and Agricultural Lands (VidharbhaRegion) Act, 1958 (hereinafter referred to as the “Bombay TenancyAct”), the Tenancy Tehsildar had exclusive jurisdiction to decide theissue of tenancy. In holding that the authorities under the 1961 Act wouldH

VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

have to determine the land holdings of the petitioner therein, this Courtheld:

“8. It is, therefore, submitted on behalf of the petitioner thatdetermination of the question of tenancy by the Ceiling Authorities,was without jurisdiction. The High Court held that in the facts ofthis case it was not. The Ceiling Authority had to determine theland holdings of the petitioner. Incidentally, where a transfer ismade by the landholder creating a tenancy, there whether thetransfer was made bona fide or made in anticipation to defeat theprovisions of the Ceiling Act, is a question which falls fordetermination squarely by the Ceiling Authorities, to give effect toor implement the Ceiling Act. In that adjudication it was an issueto decide whether tenancy right was acquired by the tenant of thepetitioner. But here before the Ceiling Authorities the adjudicationwas whether the transfer to the tenant, assuming that such transferwas there, was bona fide or made in anticipation to defeat theprovisions of the Ceiling Act. This latter question can only begone into in appropriate proceedings by the Ceiling Authorities.Unless the Acts, with the intention of implementing various socio-economic plans, are read in such complementary manner, theoperation of the different Acts in the same field would createcontradiction and would become impossible. It is, therefore,necessary to take a constructive attitude in interpreting provisionsof these types and determine the main aim of the particular Act inquestion for adjudication before the court.

9. In our opinion, having regard to the Preamble to the Act of theMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961,which was enacted for giving effect to the policy of the Statetowards securing the principles specified in clauses (b) and (c) ofArticle 39 of our Constitution; and in particular, but withoutprejudice to the generality of the foregoing declaration, to ensurethat the ownership and control of the agricultural resources of thecommunity are so distributed as best to subserve the commongood and having regard to the purpose of the Bombay Act, it wasopen to the Ceiling Authorities to determine whether there was, infact, a genuine tenancy.”

In this case, no question similar to the question that is before us inthe present matter arose on the facts. It was assumed that adjudication A

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Abefore the ceiling authority would include an adjudication as to whethera person was made a tenant to defeat the provisions of the 1961 Act.Based on that assumption, the question posed and answered by the Courtwas that it would be the ceiling authorities - and not the Bombay TenancyAct authorities - who would be competent to answer such question.This judgment also does not, in any manner, decide the questions thatBhave been posed before this Court, with particular reference to thelanguage of Section 11 of the 1961 Act and partitions which took placeprior to a cut-off date where even a limited deeming fiction did not becomeapplicable.

24. In State of Maharashtra and Anr. v. Rattanlal (1993) 3CSCC 326, this Court was concerned with the operation and reach ofSection 45 of the 1961 Act, which dealt with the revisional power of theState Government. On the facts of Rattanlal (supra), the AdditionalCommissioner had issued a show cause notice to the respondents therein,inter alia, for the reason that the respondent did not disclose the landsDor his half share in a particular declaration, having suppressed the same.On hearing the respondent, and for reasons recorded in his order dated09.06.1980, he remitted the case to the primary Tribunal to redeterminesurplus land. The High Court held that once an appeal was preferred bythe declarant under the 1961 Act, and an order made thereon, theCommissioner or State Government is devoid of jurisdiction to determineEthe ceiling area. The Supreme Court set aside the judgment of the HighCourt, and held that it was perfectly within the jurisdiction of the AdditionalCommissioner under Section 45 of the 1961 Act, suo moto, to call forthe records of a case and thereafter to decide it and pass such orderthereon as it deems fit under Section 45(2) of the 1961 Act. This caseFagain is far removed from the facts of the present case, concerningitself with the suo moto powers exercisable under Section 45 of the1961 Act.

25. In Bhupendra Singh v. State of Maharashtra (1996) 1 SCC277, this Court, while dealing with proceedings under the 1961 Act, held:G“13. Section 18 of the Ceiling Act requires the ceiling authority toconsider certain matters enumerated therein before issuing adeclaration under Section 21 declaring the land which the personor the family unit is entitled to hold and the surplus lands. Clause(d) of Section 18 requires the Collector to consider, inter alia,Hwhether any transfer is made by the holder in contravention of VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

Section 8, and if so, whether the land so transferred should beconsidered or ignored in calculating the ceiling area under Section10(1). Clause (g) requires the authority to consider what is thetotal area of land held at the time of the enquiry and what is thearea of land which the holder is entitled to hold. Clause (j) requiresthe authority to consider whether the proposed retention of landby the holder is in conformity with the provisions of Section 16.Clause (k) requires the authority to consider which particular landout of the total lands held by the holder should be delimited assurplus land. Clause (l) requires the authority to consider any othermatter necessary to be considered for the purpose of calculatingthe ceiling area and delimiting any surplus land. If some diminutionin the area held by the person or family unit has occurred betweenthe relevant date and the date of the enquiry, the above clausesrequire that these be taken note of in accordance with law beforeany declaration is made under Section 21. These are importantmatters to be kept in mind especially when in the instant case thediminution has taken place by thrust of another statute, i.e., theRestoration Act.Since the said land is neither encumbered landnor land transferred in contravention of Section 8, it is not liable tobe included in the ceiling holding of the appellant.”

(emphasis supplied)

This judgment is important in that it delineates the scope of Section18(l) of the 1961 Act, and confines it to ‘calculating ceiling area and de-limiting surplus land’, albeit by the application of another statute, namely,the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

26. Shri Krishnan Venugopal strongly relied on the observationsin Gurdit Singh (supra). This case dealt with Section 32-DD whichwas introduced into ‘The Pepsu Tenancy and Agricultural Lands Act,1955’ with retrospective effect from 1956. This Section states as follows:

“3. The Act was amended by Act 16 of 1962 and Section 32-DDwas introduced into the Act with retrospective effect from October30, 1956. That section reads:

“32-DD. Future tenancies in surplus area and certain judgmentsetc. to be ignored.—Notwithstanding anything contained in thisAct, for the purposes of determining the surplus area of anyperson—

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A(a) a tenancy created after the commencement of the PepsuTenancy and Agricultural Lands (Second Amendment) Act, 1956,in any area of land which could have been declared as the surplusarea of such person; and (b) any judgment, decree or order of a court or other authority,Bobtained after the commencement of that Act and having the effectof diminishing the area of such person which could have beendeclared as his surplus area shall be ignored.”

27. This Court repelled an argument enlarging the scope of Section32-DD, which was based on the object sought to be achieved by theCSection in the following terms:

“12. … We are aware that the object of this provision in an Actlike the one under consideration is to prevent circumvention of itsprovisions by dubious and indirect methods. But that is no reasonwhy we should put a construction upon the section which itsDlanguage can hardly bear. It would have been open to therespondents to allege and prove that the judgment was obtainedcollusively. But that could have been done only after notice toAppellants 2 and 3 and after giving them an opportunity of beingheard. Therefore, to say, as the High Court has said, that noprejudice was caused to Appellants 2 and 3 for want of anEopportunity to them of being heard, is neither here nor there. Wethink the High Court went wrong in assuming that the Collectorwas right when he ignored the judgment by his order dated May20, 1963 on the ground that it had the effect of diminishing thearea of the first appellant which could have been declared as hisFsurplus.”

28. Likewise, as has been held by us hereinabove, it is not possibleto state that wherever the expressions “transfer” and “partition” occurin Sections 8, 10 and 11 of the 1961 Act, they must be understood asmeaning transfers and partitions which are genuine. If the word “genuine”Gis added, it would amount to straining the language of these provisionsand giving these provisions a construction which they cannot possiblybear – a construction that would go against the object of giving theCollector a limited jurisdiction to decide whether lands fall within theceiling area, and in so doing, whether transfers and partitions betweenthe cut-off date and commencement date should be “ignored”. It mayHbe added that the language of Section 11 also leads to the conclusion VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.[R. F. NARIMAN, J.]

that even in case of a partition that is made after the cut-off date andbefore the commencement date, the power of the Collector is not todeclare such partition sham, and therefore void, which is for a CivilCourt to do, but is only to ignoresuch partition for the purpose ofcalculating ceiling area.

29. Shri Krishnan Venugopal then relied upon Uttar Chand(supra).This case also dealt with 1961 Act, the cut-off date in that casebeing 04.08.1959. As both the transfers in the aforesaid case were priorto 04.08.1959, this Court held that the High Court was not justified inholding that the said transfers were either collusive or fraudulent. ThisCourt held:

“5. These sections are of no assistance to the respondent becauseSection 6 takes within its fold lands belonging to the owner, or hisfamily as a single unit and is not meant to cover the separate orindividual property of another member of the family which cannotbe clubbed together with land of the concerned owner or family.The argument advanced by the respondent appears to have foundfavour with the Commissioner, but it was legally erroneous asindicated above. In these circumstances the most important factto be determined was whether or not any transfer that had beenmade by the person concerned was prior to or after August 4,1959. If the transfer was prior to August 4, 1959 then the provisionsof the Act would not apply at all. In the instant case, both thetransfers being three years prior to the date mentioned above, theAct would not apply to them and the Commissioner and the HighCourt therefore erred in holding that the lands transferred byNemichand to his mother should be included in the total area ofthe land owned by the appellant.”

30. What is of importance in this case is that in a similar factsituation, if a transfer took place before the cut-off date mentioned bythe 1961 Act, the 1961 Act would not apply so as to include landssubsumed in the said transfers, in calculating the ceiling area.

31. Regard being had to our finding that the Collector’s jurisdictionunder the 1961 Act does not go to the extent of declaring a registeredpartition deed that is made before the cut-off date as being sham, it isunnecessary for us to go into any of the other findings of both the learnedjudges of this Court in relation to Hindu Law.

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A32. We are, therefore, of the view that the appeal deserves to beallowed, and the impugned judgment of the Bombay High Court dated27.11.2007 set aside for the reasons given by us. The judgment of theSub-Divisional Officer dated 07.05.1984 stands restored, as a result.

BDevika Gujral

Appeal allowed

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