VITHALDAS JAGANNATH KHATRI (D) THROUGH SHAKUNTALA ALIAS SUSHMA & ORS. versus THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS. on 29 August 2019

1. Deemed Fiction:

Conclusion

1.1 The legislation in question is a beneficial piece oflegislation and, indeed, must be given the widest amplitude, theobject being to distribute land among the landless. In givingHwider amplitude to such legislation, the Court should not interpret the words of the statute beyond its plain readingreflecting the intent of the legislation. The provisions have tobe read, to see whether there is any ambiguity, requiring anyfurther aid for construction of those sections, or whether theyare explicit and clear in their meaning. On a reading of theprovisions of Chapter III, including Sections 8, 10 & 11 of thesaid Act, there is no ambiguity as would require any aid toconstruct the meaning of those Sections. [Paras 19 and 20] [938-B-D]

Gurdit Singh v. State of Punjab (1974) 2 SCC 260 :[1974] 3 SCR 896 – relied on.

1.2 The commencement date would be the date from whichthe provisions would come into force. However, the amendmentof 1972 created a deemed fiction by inserting the provision forsetting at naught transactions that may have occurred on a priordate, i.e., from 26.9.1970. The result is that the transactions ortransfers in this window of about five years would also be hit bythe provisions of the said Act insofar as the determination ofsurplus land is concerned. In the wisdom of the legislature, thewindow of five years is provided as sufficient for scrutinizingtransactions which could be called “dubious and indirectmethods” to evade the result of the said Act. This is alsoreinforced by the provisions of Section 18, dealing withdetermination of the surplus area of land. The effect of Section18(b) is that any land, even if it is obtained by partition or othertransfer, after the date of 26.9.1970 would be included for thepurposes of calculation of surplus land, as land of the person whoso transferred the same. The second Explanation to sub-section(1) of Section 10 also provides that documents evidencing suchtransfer even before 26.9.1970 would not be exempted if theyare not registered on or before that date, or even if they areregistered after that date, they are not presented for registrationon or before that date. Thus, the possibility of evading the landceiling limits by creating documents on a back date andsubsequently producing them for registration is obviated.[Paras 21-23] [938-E-F; 939-A-B, E-F]

A

B

C

D

E

F

G

H

916SUPREME COURT REPORTS

[2019] 11 S.C.R.

ABengal Immunity Co Ltd. v. State of Bihar : [1955]2 SCR 603 ; Mancheri Puthusseri Ahmed v.Kuthiravattam Estate Receiver (1996) 6 SCC 185 :[1996] 5 Suppl. SCR 813 – relied on.

1.3 A legal fiction is to be limited for the purpose for whichBit is created and should not be extended beyond that legitimatefield. It was held in Mancheri case, “a fiction cannot be extendedby the court on analogy or by addition or deleting words notcontemplated by the legislature.” Thus, this being the mannerof interpreting a provision for deeming fiction, the relevant datesprovided, of 26.9.1970 and 2.10.1975, giving a window of fiveCyears for the State to take action and prevent any dubioustransaction during this period of time, cannot be expandedto an unlimited prior period of time. [Paras 25, 26] [940-B-G;941-A]

Raj Kumar Johri v. State of M.P. (2002) 3 SCC 732 :D[2002] 2 SCR 512 ; Uttar Chand v. State ofMaharashtra, (1980) 2 SCC 292 : [1980] 2 SCR 1048– relied on.

2. The appellate authority allowing the cross-objections:EThe order was passed by the competent authority, beingthe SDO, insofar as the two elder daughters are concerned, heldin their favour as far as the lands vested in them, in pursuanceof the Partition Deed. There was, thus, no occasion for them tofile an appeal, nor did they so file an appeal. Other members ofthe family, who filed the appeal, did not implead them as parties.FOnce again, naturally so, as they would not be the interestedparties, or even pro forma parties in that behalf. However, oncethe State decided to file cross-objections and, in that, impugnedeven that portion of the order of the SDO which held in favourof the two elder daughters, they were necessary parties to thoseGproceedings. It is no answer to say that since the effect of theland ceiling would be to restrict the area of their father, VJK, itis for VJK to see how he can benefit his daughters. Thisfundamental defect cannot be cured in the subsequentproceedings, as the right of appeal is a statutory right and animportant one. This view is reinforced by a catena of judicialHpronouncements. It has been held that the Code of Civil Procedure, 1908 does not contemplate filing of cross-objectionsagainst a party who is not a party to the appeal. In case suchobjections have to be filed two distinct operations are necessary.He must implead the persons as parties qua whom he intendsto file cross-objections then he must file the memorandum ofcross-objections. The position would be no different qua ajudicial or quasi-judicial authority as a party to be effected mustget a right of hearing. Thus, for this reason also the cross-objection could not have disturbed the status of the two elderdaughters. [Paras 28 and 29] [941-D-G; 942-A-B]

Udit Narayan Singh Malpharia v. Additional Member,Board of Revenue, Bihar AIR 1963 SC 786 (WS) :[1963] Suppl. SCR 676 – relied on.

Rajendra Nath Chatterjee v. Moheshata Debi AIR1926 Cal 533 ; Venkatapathi v. Veerayya AIR (30)1943 Madras 609 – approved.

3. Unmarried daughters’ claim in HUF property:

3.1 It *Guramma Bhratar case, the acceptability of giftingof a reasonable part of the ancestral property, in favour ofdaughters, for marriage purposes, was held to be valid, and inaccordance with Mitakshara law. Thus, legal view is very clearthat a provision for marriage of unmarried daughters can bemade out of ancestral property. Such provision can be madebefore, at the time, or even after the marriage. The provisionis being made out of pious obligation, though the right of womengot diluted over a period of time. However, with the amendmentto the Hindu Succession Act, in 2005, a specific right is nowconferred on women to get a share on partition of ancestralproperty, including the right to claim partition. This change wasbrought about in Maharashtra in 1994, itself. [Para 33, 36] [945-F; 946-E-G]

Pugalia Vettorammal and Anr. v. Vettor Goundan (1912)22 MLJ 321 ; R. Kuppayee v. Raja Gounder (2004)1 SCC 295 : [2003] 6 Suppl. SCR 605 ; *GurammaBhratar Chanbasappa Deshmukh v. MallappaChanbasappa & Ors. [1964] 4 SCR 497 – relied on.Annamalai Ammal v. Sundarathammal & Ors. AIR 1953Mad 404 – approved.

A

B

C

D

E

F

G

H

A3.2 In the instant case, by way of Partition Deed, aprovision was made for education and marriage of daughters. Inthe context of where the society is today, such an endeavourshould be commended as salutary, rather than be frowned upon.There is no doubt that there was nothing prohibiting such aprovision from being made. If the law permits so, it can hardlyBbe called fraudulent. Thus, the very premise of allowing thecross-objection has no sustenance in law. Further, the two elderdaughters, whose rights have been debated actually, evenattained majority before the commencement date, i.e., they weremajor unmarried daughters on the date when the amendmentsCcame into force. They were, thus, not included even in the familyunit in terms of the definition contained under Section 4. [Paras37, 38] [946-H; 947-A-C]

3.3 None of the members of the family ever sought toassail or challenge the deed. It was with the consensus of theDfamily, apart from the legality of the same. Too much importanceshould not be attached to the nomenclature of a document andone can look behind the façade of the document to decipher thetrue nature of the transaction. In the given facts of the case itis not in dispute that the Deed was a registered document.EThus, even if one construes it as a partition-cum-gift deed, itwould make no difference as the requirements of a gift deed,under Sections 122 & 123 of the TP Act stand satisfied. Thus,even if the document is effectively a gift deed, and Hindu Lawpermits the making of a provision for the daughter for hermarriage, the execution of a partition deed, which has the effectFof such a gift would not nullify the effect of the deed. This is soas a provision made for the daughter out of the ancestralproperty would be in compliance of the pious obligation. Thesefindings, thus, lead to the conclusion that view of the SDOregarding the land of the two elder daughters, is the correct view.G[Paras 39-42] [948-C; 949-B-E]

Made Gouda v. Chenne Gowda AIR 1925 Mad 1174; Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313; Namburi Basava Subrahmanyam v. Alapati Hymavathi& Ors. (1996) 9 SCC 388 : [1996] 3 SCR 1100 –Hrelied on.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMAv. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.

Ponnu & Anr. v. Taluk Land Board, Chittur & Ors.,(1981) KLT 780 – approved.

Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79: [ 2007] 2 SCR 990; State of West Bengal v. Unionof India AIR 1963 SC 1241: [1964] SCR 371 –referred to.

PER K. M. JOSEPH, J. (Dissenting)

1. POWER OF AUTHORITIES UNDER THE ACT OVERTRANSACTION PRIOR TO 26.09.1970

1.1 The word “transfer” and “partition” as employed inSection 10 and 11 of the Act must be understood as meaning atransfer and a partition which is genuine. In other words, atransfer, be it by any means, as defined under Section 8, mustactually result in the divesting of rights of the previous ownerand vesting of rights in the transferee. The legislative intentionwas that such transfers, which otherwise would pass muster asgenuine transactions and, therefore, would have the effect ofdefeating the object of the Act as contained in particular inSection 3 and the Chapter relating to distribution of surplus landshould be rendered ineffective. The same is the position inrespect of the partition under Section 11 of the Act. Even if thereis a genuine partition by which shares are in fact allotted to theparties and the parties enjoy the properties as separate ownersof what was previously joint ownership, their rights will besubsumed and overwhelmed by the laudable object underlyingSection 3 of the Act and the prohibition would have full sway.[Paras 54] [973-D-G]

1.2 Apart from clauses (a) and (b) of Section 18 of the Act,the Collector is duty bound to ascertain other matters. Clause(c) of Section 18 of the Act specifically mandates that the Officermust find out what is the total area of land held by the holderon the commencement date. Clause (1) of Section 18 of the Actalso contemplates that the Collector may take into considerationany other matter which in his opinion is necessary for calculatingthe ceiling area inter alia. Section 3 of the Act read in conjunctionwith Section 18(c) and (l), inter alia, establishes that the Collector A

B

C

DEF

GH

920SUPREME COURT REPORTS

Ahas power and it becomes his duty, in fact, to ascertain what isthe area held on the appointed day, viz., 02.10.1975. TheLegislature has defined the words “to hold” means, “to belawfully in actual possession of land as owner or as tenant”. Word“owner” is further defined to mean, “in relation to any landincludesa person holding the land as occupant, superior holderBas defined in the Code, lessee of Government, as it is commonlyunderstood”. If the person is holding the land as occupant, hewould be an owner. Therefore, if a person is in possession asan occupant as on the appointed day, the extent of land so heldby him, would be considered for the purpose of calculating theCceiling limit. Equally, if the person is in possession as lessee ofthe Government, he would incur the wrath of Section 3 of theAct, should he have land in excess of the ceiling limit inclusiveof the land which he holds as lessee of the Government. [Para55] [973-H; 974-A-E]

D1.3 The Collector, therefore, is duty bound in the courseof the inquiry to enquire and ascertain as to what exactly is theholding (as defined in the Act) as on the commencement day. Inthe matter of gleaning the meaning of a Statute and demystifyingthe words of a Statute and discovering the intention of theElegislation, the court must presume that the Legislature hastaken into consideration the felt necessities of the times. It willfurther assume that the Legislature was aware of the law as itexists and not begin with assumption that the Legislature isignorant of the opinions expressed by the courts on points oflaw. [Para 56] [974-F-H]F

Sree Meenakshi Mills Ltd., Madurai v. Commissionerof Income Tax, Madras AIR 1957 SC 49 : [1956] SCR691 ; Kalwa Devadattam and others v. The Union ofIndia and others AIR 1964 SC 880 : [1964] SCR 191– referred to.G

2.1 In a sham transaction, be it a sale or a partition, thoughit has all the trappings of a transfer or a partition and it may beregistered as such, in effect, the transferor continues to be theowner. The person who was the previous owner, would, in theHcase of the partition which is sham, continue to be the owner. A

clever camouflage or a document ingenuously disguised as a saleor a partition, cannot be permitted to defeat the intention of theLegislature. If the surrounding circumstances and the actualreality behind the transaction is objectively probed and it isestablished that the transferor or the previous owner, as the casemay be, in the case of a transfer or a partition, respectively,continued to hold the property as such on the appointed day, itmust be ignored. [Para 59] [976-G-H; 977-A]

2.2 The interpretation that the Legislature knows theexisting law and that the Legislature does not waste words andfurther that an interpretation which, while on the one hand,furthers the object of the Statute, and equally importantly, is one,which the plain language of the Statute is capable of bearing,would persuade this Court to hold that the Collector, when inthe course of an inquiry under Section 18 of the Act, has beforeit, materials to show that an ostensible transfer or a partition isnothing but a sham and a person or a member of the familycontinues to hold the land as on the commencement day, itwould be well within his powers to act as per the mandate ofthe Act and include the land for the purpose of calculating theceiling limit. [Para 60] [977-C-E]

2.3 The Collector is endowed with the powers of the civilcourt in the matter of both summoning and enforcing attendanceof any person. The person summoned can be examined on oath.He has power also to compel production of any document. Forthe purpose of determining whether a document is a collusive,a fraudulent or a sham transaction, it would indeed be arguedthat the Authority to so decide must be in a position to considerrelevant evidence in the form of deposition of witnesses as alsoevaluate documentary evidence which may throw light on thematter. Such powers are expressly conferred on the Collectorand the powers are the same as that which the civil court enjoysin this regard. [Para 61] [977-G-H; 978-A-B]

3.1 Another argument raised by the appellants is that thepartition cannot be impeached on the ground that properties areallotted to the daughters when under the prevalent law thedaughters did not have any right to a share. If at all, anybody A

B

C

D

E

FG

H

Acould impeach the said partition, it would be only the affectedparties, viz., the persons who are legitimately entitled to a sharein partition. It is one thing to say that a sharer whose sharesmay be affected, could question it in the appropriate forum. Itis, however, a far cry from maintaining that the CompetentBAuthority under the Act, when it has before it, evidence whichpoints to the transaction being a sham or collusive affair, isdisabled from finding it to be so. If one proceeds on the basisthat the transaction was sham, the persons who would benefitfrom the sham transaction would be the other sharers. In thefacts of this case, viz., the father, the wife and the son. This isCfor the reason that it is implicit in the finding that in thetransaction of sham that there is no effective transfer. Theproperties would continue to be held by the father. The daughterswould not get any effective share. The other sharers, who wouldordinarily have challenged the transaction, viz., the wife and theDson, would be themselves beneficiaries under the transaction andthey cannot be expected to challenge the transaction. Acceptanceof the argument of the appellants would result in partiesdefeating the Act by setting up a pretense and wearing a cloakand this cannot be permitted. [Paras 66-67] [979-G; 980-B-E]

E

3.2 Thus, a transfer or a partition entered into before26.09.1970, if it is not genuine and is collusive or is a shamtransaction, can, in a given case, on materials being present, befound to be so by the Authority under the Act; What iscontemplated under Sections 10 and 11 of the Act read withFSection 8, undoubtedly, is a transfer as defined in Section 8, beinga genuine transaction. A fraudulent transaction or a shamtransaction if entered into before 26.09.1970, would incur thewrath of Section (3), and a farce of a partition likewise, bringingabout a mock division of property among the sharers, would alsoincur wrath of Section (3) of the Act. No doubt, even if theGtransaction is a sham transaction, be it a transfer or a partition,it would incur the wrath of Sections 10 and 11 and it would notbe necessary to justify the invalidity with any materials if enteredinto or effected after 26.09.1970. It does not mean that atransaction which is entered into, particularly after the Act cameHinto force, be it a transfer or a partition, and if there are materials and circumstances brought out, which persuades Authorities tohold that it is collusive or a sham transaction and the propertydid not change the hands, the property would not be liable tobe treated as held by the previous owner as on thecommencement day and included in the account despite thepurported transfer or partition. [Para 68] [980-E-H; 981-A-B]

4. WHETHER THE PARTITION ALLOTTING SHARES TOTHE DAUGHTERS WAS UNNATURAL AND SHAM

4.1 The Partition was unnatural for the reason that underthe extant Hindu Law, daughters were not entitled to a share.Another reason to hold the partition unnatural is that the wifeof VJK was entitled in law upon a partition to a share but she isnot given any share. The further finding is that VJK continuedto be in effective cultivation of the land, and in this regard, therecord of rights was relied upon. [Para 69] [981-E; 982-E-F]

4.2 Under the extant law, women were not co-parceners.A wife could not demand a partition. Women could not enforcepartition. This was a right which was conferred upon the males.Also, partition can be of property which is previously held jointly.The father, no doubt had the power under the Mitakshra Lawto effect a partition even if the sons did not agree to the same.[Paras 72-73, 75, 77] [984-G; 985-B-G; 986-G]

State of Maharashtra v. Narayan Rao Sham RaoDeshmukh and others AIR 1985 SC 716 : [1985] 3SCR 358 – referred to.

Mayne’s Hindu law and usage – referred to

5. THE LAW RELATING TO GIFTS BY A HINDU TO HISDAUGHTER

5.1 A Joint Hindu Family would consist of a large numberof persons. A Joint Hindu Family could, however, be understoodto be a narrower body of individuals that constitutes acoparcenary. The coparceners, at the relevant point of time,consisted of males, viz., son, grandson and the great grandson.They were persons who were entitled to demand partition. Apartition involves separate enjoyment and what was previouslyjointly held property. A wife of a Hindu while not a coparcener AB

C

D

E

F

G

H

Awas one such person who was entitled to a share in the partition.But even when a partition took place, the daughter of a personwas not a person who was entitled to any share.[Para 80] [991-D-E]

Annivillah Sundaramya v. Cherla Seethamma andBothers 1911 (21) MLJ 695 ; Pugaria Vettoramal andanother v. Vettor Gounder, Minor, by his next friendand mother Poochammal and another 1912 (22) MLJ321 – approved.

Annamalai Ammal v. Sundarathammal and Others AIRC1953 Madras 404 ; Guramma Bhratar ChanbasappaDeshmukh and others v. Mallappa Chanbasappa andanother AIR 1964 SC 510 : [1964] SCR 497 –referred to.

5.2 The terms of the partition deed have been set out.DThe first thing that is a striking feature in the partition deed isthe exclusion of the wife of VJK. No doubt, she was gifted 60and odd acres by gift deed dated 20.1.1955. However, when thefamily partition took place, her right may continue. If the wifeunder the Hindu Law, when a partition is effected, was entitledto a share, the fact that she is not given any share, does raise aEsuspicion. The father got 32 and odd acres. The son is given 30acres. Most importantly the daughters who had no right are seengiven a total of 45 acres and 35 acres. The daughters togethergot 1½ times the share of the son. Any property, which went tothe wife, would have been liable to be included in the accountFof the family for the purpose of determining the ceiling limit. Itis no doubt true that there was no concept of family unit at thattime but family as a person was subject to the ceiling limit. Theelder daughters were 14 years and 11 years, respectively. Theson, in fact, was merely 4 years old and the youngest daughter8 years. The statement in the partition deed that the parties haveGbeen using their properties jointly itself, is suspect as none ofthe daughters had any legal right in the properties. Thus, thecircumstances which stand against the document namely thepartition being a genuine transaction are: The age of thechildren being 4, 8, 11 and 14 years; the wife of the VJK notHbeing given any share; the children being represented by their grandfather as a guardian when the parents are alive. Allotmentof shares to the daughters when daughters did not have any rightto share in the partition of a Hindu Undivided Family at that pointof time. Out of a total of 106 acres, 45 acres and 35 acres canby no stretch of imagination be treated as ‘small’ or ‘reasonable’.While it may be true that after 1994, a Hindu daughter inMaharashtra had been recognized as a coparcener by Section29A of the Hindu Succession Act, 1956 and entitled to a shareas such, such right did not exist in 1970 when the partition wasentered into. [Para 83] [993-D-F-H; 994-A-E]

6. No doubt, it was open to a Hindu to make a gift of asmall portion or a reasonable portion to his daughter. In fact,there is a line of thought that though styled as partition, it couldbe held to be a gift in the absence of a pre-existing right. Thequestion in this case is not whether a gift could have been validlymade or not by VJK to his elder daughters. No case of it beinga gift is set up before the Tribunal or the High Court nor beforethis Court. Definition of ‘member of family’ under the Actincluded dependent daughters. There is no case that the propertywas the separate property of VJK. There can no dispute thatthe property was an ancestral property which he acquired interms of the earlier partition between him and his father. [Paras84-85, 88] [994-E-H; 996-D]

Potti Lakshmi Perumallu v. Potti Krishnavenamma AIR1965 SC 825 : [1965] SCR 26 ; Made Couda and Ors.v. Chenne Gouda and Ors. AIR 1925 Madras 1174 ;Ponnu and another v. Taluk Land Board, Chittur andothers (1981) KLT 780 – referred to.

7.1 The Tribunal noted that the elder daughters were 14and 12½ years of age on the date of the partition in 1970. VJKcontinued to be the owner as the title has not passed by a legallyvalid instrument. It is stated further that the name of the son isrecorded in the Crop Register for the period 1972 to 1975 asoccupant. The eldest daughter became major on 03.11.1973, stillshe is shown as a minor and her father is shown as occupant onher behalf. For the year 1974-1975, the next feature to benoticed is eldest daughter is to shown along with her father asan occupant. However, she is so shown through her guardian A

B

C

D

E

F

G

H

Awho is shown as her grandfather. For the year 1975-1976, sheis shown as occupant through guardian grandfather. She hadmuch earlier become major. The name of VJK which was therein the earlier year is seen removed. [Paras 92, 95, 96] [997-D- E; 999-B; 1000-B]

B7.2 It is undoubtedly true that the appeal before theTribunal was filed by VJK, his wife, son and youngest daughter.There was no occasion for the elder daughters to challenge theorder passed as the properties allotted to them in the partitiondeed dated 31.1.1970 stood excluded. It is in such an appeal thatthe Government filed a cross objection. Undoubtedly, the crossCobjection was maintainable both under the express provisionsof Section 33 of the Act as also under Order 41 Rule 22 CPCwhich was also made applicable under Section 33 of the Act. Inlaw it is true that if a cross objection is maintained, the personaffected by an order in the cross objection must be on the partyDarray. If he is not on the party array, it is incumbent upon therespondent in the appeal who seeks to maintain a cross objectionagainst a non-party to implead such person as a party. The orderof the Tribunal was challenged by VJK and his wife only by filinga writ petition before the High Court. Appellants 3 and 4 in theEappeal before the Tribunal were made respondents in such writpetition. It is true that elder daughters were also maderespondents. VJK and his wife did not prosecute the writpetition also as representatives of the elder daughters. Thefinding regarding the partition deed and gift deed by the Tribunalimpacted both VJK and his wife on the one hand and also theFelders daughters on the other hand [the latter as regards thepartition deed]. The Ceiling Account of the family unit wasdetermined taking into consideration the 31 acres allotted to theelder daughters. VJK would been affected in two differentcapacities. One as head of the family unit and the other as fatherGof the elder daughters. [Paras 99-101] [1000-F-H; 1001-A-D]

8.1 Under the Hindu Minority and Guardianship Act, 1956,Section 6 declares who is to be the natural guardian of a Hinduminor. A perusal of Section 6 of the Hindu Minority andGuardianship Act would show that in the case of unmarried girl,Hthe father and after the father the mother would be the natural

guardian. This is in respect of both the person of the minorandthe property of the minor. When the writ petition was filed, theeldest daughter was clearly major and married. The seconddaughter was also a major. The State would contend the partitiondated 31.1.1970 was a sham and VJK continued to hold theproperty. It is not unnatural that he would challenge the inclusionof such property in the ceiling account as property of the familyunit on the basis that he continued to be the holder. Allowingthe cross objection by the Tribunal if viewed in this perspectivedid affect VJK. He could indeed question the inclusion of thelands allotted to his elder daughters in the account of the familyunit. VJK could support the partition deed but he could notchallenge the order of the Tribunal allowing the cross objectionon the ground that the cross objection was allowed without givingan opportunity to his daughters. Undoubtedly, VJK was the firstappellant before the Tribunal. He along with other appellantstherein were heard by the Tribunal as parties before allowingthe cross objection in relation to the partition. The ground thatthe cross objection was allowed without an opportunity to hiselder daughters was not available to VJK or his wife. Again,the writ petition has been filed only by VJK and his wife. Thoughthe elder daughters were majors, they did not challenge theorder of the Tribunal. Maybe it is true that they wererespondents in the writ petition filed by their parents. Even afterthe Single Judge dismissed the writ petition, upholding the orderof the Tribunal, no appeal was filed by the elder daughters. [Paras102-104] [1001-D; 1002-B-G]

8.2 If indeed the elder daughters had acquired possessionand rights under the partition deed in respect of an extent ofmore than 31 and odd acres of land in between themselves, itpasses one’s comprehension that they would not challenge theorder which purported to deprive them of their rights. Thisconduct on the part of the parties would appear to lendassurance to the case of the State that the partition was not agenuine transaction but a sham and the property continued withVJK in which case it would be property held by VJK even onthe commencement date namely 2.10.1975 rendering it liable tobe included in the account of the family unit. He accordingly AB

C

DE

F

GH

[2019] 11 S.C.R.

Achallenged the order of the Tribunal along with his wife who wasseparately aggrieved by the inclusion of the property found giftedto her. [Para 105] [1002-H; 1003-A]

9. A writ petition is not a partition suit. In a partition suit,apart from the plaintiff, the defendants also stood in the shoesBof a plaintiff. VJK passed away even when the appeal waspending in the High Court. Appeal was filed before this Courtoriginally as a special leave petition. In the Special LeavePetition, it is shown VJK (now deceased) through LRs and thepetitioners names are shown. The elder daughters werepetitioner No.1 and 2 in the special leave petition and upon leaveCbeing granted, they are in the party array as appellants 1 and 2.But they are before this Court only as legal representatives ofVJK who instituted the writ petition and appeal along with hiswife. Contentions which were available to VJK alone, wouldtherefore be available to them. [Para 106] [1003-C-F]

DJagdish Chander Chatterjee and Others v. Shri SriKishan and another (1972) 2 SCC 461 : [1973] 1 SCR850 ; Taherakhatoon (D) By Lrs. v. SalambinMohammad (1999) 2 SCC 635 : [1992] 2 SCR 210 –relied on.E

Bhagwandas Heda and others v. State of Maharashtraand others 1983 Mh. L.J. 825 ; Uttar Chand (Dead)by Lrs. v. State of Maharashtra and another AIR 1980SC 806 : [1980] 2 SCR 1048 ; Kundomal Ganga Ramv. Topamal Chotamal AIR 1953 Allahabd 710 ;FMalireddi Venkatapathi and others v. MalireddiVeerayya and others AIR 1943 Madras 609 ; BiharImmunity Company Ltd. v. State of Bihar and Others[1955] 2 SCR 603 ; Commissioner of Income-Tax v.Bombay City I, Bombay v. Amarchand N. Shroff by hisheirs and legal Representatives AIR 1963 SC 1448 :G[1963] Suppl. SCR 699 ; Commissioner of Income Tax,Kanpur v. Mother India Refrigeration Industries(P)Ltd. (1985) 4 SCC 1 : [1985] 2 Suppl. SCR 556;Bijender Singh v. State of Haryana and another (2005)3 SCC 685 : [2005] 2 SCR 1131; Commissioner ofHIncome-Tax, Delhi v. S. Teja Singh AIR 1959 SC 352

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMAv. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.

: [1959] Suppl. SCR 394 ; Mancheri Puthusseri Ahmedand Others v. Kuthiravattam Estate Receiver (1996) 6SCC 185 : [1996] 5 Suppl. SCR 813 – referred to.

A

Case Law Reference

H

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

From the Judgment and Order dated 27.11.2007 of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in LPA No. 3of 1991B

Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta, AjayKumar Talesara, Advs. for the Appellants.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, NishantSharma, Ms. Deepa Kulkarni, Advs. for the Respondents.

The Judgments/Order of the Court were delivered/passed byCSANJAY KISHAN KAUL, J.

1. The socialistic agenda of the nascently formed Indian Statewith large landless poor population was given an impetus inter alia bya number of State legislations for re-distribution of agricultural land, byputting a ceiling limit on the same, and then allotting it to the landlessDpoor. We are concerned here with the Maharashtra Agricultural Lands(Ceiling on Holdings) Act 1961 (hereinafter referred to as the ‘saidAct’). The said Act also went through many amendments top fine tunedifferent aspects, most importantly the aspect of plugging loopholes,whereby owners having land in excess of the ceiling limit wouldEendeavour to somehow re-distribute it among the family to bring it withinthe ceiling limit, or at least, to reduce the excess land. The objective ofthe said Act can well be deciphered from its preamble, which reads asunder:

“An Act to impose a maximum limit (or ceiling) on the holdingFof agricultural land in the State of Maharashtra; to provide forthe acquisition and distribution of land held in excess of suchceiling; to provide that the lands taken over from undertakingsand the integrity of which is maintained in compact blocks, forensuring the full and efficient use of the land for agriculture andits efficient management through corporations (including aGcompany) owned or controlled by the State, be granted to suchcorporations or company; and for matters connected with thepurposes aforesaid”

2. Chapter III of the said Act made provisions restricting transfersand acquisitions and the consequences of contraventions. The relevantHSections falling in the Chapter are reproduced hereunder:

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

“Section 8 - Restriction on transfer

Where a person, or as the case may be, a family unit holds landin excess of the ceiling area on or after the commencement date,such person, or as the case may be, any member of the familyunit shall not, on and after that date, transfer any land, until theland in excess of the ceiling area is determined under this Act.

Explanation :- In this section, “transfer” means transfer, whetherby way of sale, gift, mortgage with possession, exchange, lease,assignment of land for maintenance, surrender of a tenancy orresumption of land by a landlord or any other disposition, whetherby act of parties made inter vivos or by decree or order of acourt, tribunal or authority (except where such decree or orderis passed in a proceeding which is instituted in such Court,Tribunal or before such authority before the 26th day ofSeptember, 1970), but does not include transfer by way of saleor otherwise of land for the recovery of land revenue or for sumsrecoverable as arrears of land revenue, or acquisition of land fora public purpose under any law for the time being in force.”

........

........

Section 10 - Consequences of certain transfers andacquisitions of land

(1) If -

(a) any person or a member of a family unit, after the 26th dayof September, 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 calculated A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

to 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 underthe provisions of sub-section (3)], land to the extent of suchdeficiency shall, subject to rules made in that behalf, also bedeemed to be surplus land, notwithstanding that the holding ofthe transferee may not in fact be in excess of the ceiling area.

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

All transfers made after the 26th day of September, 1970 butbefore the commencement date, shall be deemed (unless thecontrary is proved) to have been made in anticipation of or inorder to avoid or defeat the object of the Amending Act, 1972.

Explanation :- For the purposes of this sub-section, a transfer shallnot be regarded as made on or before 26th September, 1970 ifthe 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 ofthe ceiling 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 anyperson, or as the case may be, a family unit, exceeds the ceilingarea, the land so in excess shall be surplus land.

(3) Where land is acquired in wilful contravention of section 9,then as a penalty therefor, the right, title and interest of theperson, or as the case may be, the family unit or any memberthereof in the land so acquired or obtained shall, subject to theprovisions of Chapter IV, be forfeited, and shall vest without anyfurther assurance 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 andinterest of the holder in some other land of the holder equal in VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

extent to the land acquired in wilful contravention of section 9,shall be forfeited to Government.

Section 11 - Restriction on partition

Where any land held by a family is partitioned after the 26th dayof September, 1970, the partition so made shall be deemed (unlessthe contrary is proved) to have been made in anticipation of orin order to avoid or defeat the object of the Amending Act, 1972,and shall accordingly be ignored, and any land covered by suchpartition shall, for the purposes of this Act, be deemed to be theland held by the family; and the extent of share of each personin the land held by the family shall be taken into considerationfor calculating the ceiling area in accordance with the provisionsof section 3.

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

3. A reading of the aforesaid provisions would show that a fictionis sought to be created (whereby a transfer made from a prior date, of26.9.1970, is sought to be nullified, other than by way of a bona fidetransaction) by the Amendment Act of 1972, by providing for the cut-off date of 26.9.1970 qua any transactions or transfers, transactionsafter which date being deemed to be transfers in anticipation, or in orderto defeat the object of the Amendment Act of 1972. It may also benoticed that it is only by the Amendment Act of 1975 that thecommencement date was specified as 2.10.1975. Thus, while normallyall the relevant provisions of the legislation, having come into force from2.10.1975, the provisions would have applied from that date, i.e.2.10.1975, a legal fiction was created to apply the provisionsretrospectively, from 26.9.1970. It does appear from the submissionsthat as the legislation appears to have been debated and been incontemplation for some time, the apprehension of transactions duringthis window of time, in anticipation of the amendments, was taken careof by the aforesaid provisions.

4. The factual matrix has to be examined in the context of theaforesaid provisions, and in the present appeal we are practicallyconcerned with one document, which is the Partition Deed dated

A

B

C

D

E

F

G

H

A31.1.1970, which has been duly registered, i.e., both the document andits registration are undisputedly before the cut-off date of 26.9.1970.

5. The Partition deed has been executed between five parties –late Shri Vithaldas Jagannath Khatri and his then minor son and threeminor daughters. It may, however, be noticed that two of the minorBdaughters attained majority before the commencement date of2.10.1975, though they were not major on 26.9.1970. In terms of thisdocument, the agricultural land of the Hindu Undivided Family (‘HUF’)is sought to be divided by mentioning all the parties as part of the HUF.The lands were stated to be used jointly and shares in the lands weregiven to both, the minor son and the daughters stating as under:C

“….Party No.2 to 5[1] have to take the education & to see thateach of them take it freely & to provide for the expensestherefore and to see that each of them will meet the expensesout of their own property and that no dispute took place betweenthem in future, therefore we are executing & keeping with usDthis deed of partition…..”

6. After setting out the aforesaid recital, the property falling toeach of the parties is mentioned and post that, before the signatures, itis further stated as under:

E“In this way we have partitioned over estate, the property fallento the share of party have taken its possession & became thefull owner thereof. Now nobody is concerned with the propertyof others. Out of us for the education & marriage purpose ofparty No.2 to 5 and for the benefits of our family and for thesuccessful future, we of our free will & consideration executedF& kept this deed of partition, on this 31[st] day of January 1970.”

7. We may also notice that the prelude to the aforesaid PartitionDeed on account of an earlier Partition Deed executed betweenVithaldas and his father Jagannath, on 20.1.1955, when a separateprovision was also made through a Gift Deed by Jagannath, in favourGof the wife of Vithaldas.

8. On the provisions of the said Act coming into force, theSurplus Lands Distribution Tribunal (for short ‘SLDT’) institutedproceedings in exercise of suo moto powers in respect of the return H1 Children of Vithaldas VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

filed under Section 12 of the said Act by Vithaldas, which Section fallsin Chapter IV, dealing with ‘surplus land’. In the course of theassessment proceedings regarding surplus land, the holdings of the entirefamily were taken into consideration, as in terms of Section 2 (11) ofthe said Act, the family would include an HUF, which is joint in estate,or possession, or residence. A family unit, under Section 11-A of thesaid Act, for definition, has referred to Section 4, defining ‘land heldby a family unit’. In terms of order dated 19.11.1976, 60 acres and 27gunthas of land of late Vithaldas was declared surplus. This orderwas assailed before the Maharashtra Revenue Tribunal, Bombay Bench,Nagpur, which dismissed the appeal on 16.2.1977, resulting inproceedings being filed by Vithaldas, before the Bombay High Court,Nagpur Bench. In terms of order dated 2.3.1982, learned Single Judgeof the Nagpur Bench of the Bombay High Court remitted the matterback to the SLDT for fresh inquiry, on the ground of lack of adequateopportunity provided to Vithaldas and others to present their case.

9. On remand, a fresh order was passed by the SDO, ChikhaliDistrict, Buldana on 7.5.1984. Various aspects of holding of Vithaldaswere examined. On the matter being revisited in these proceedings,land measuring 59 acres and 35 gunthas was deemed surplus, underSection 3(2) of the said Act, while excluding (a) Potkharab land ofVithaldas, to the extent of 12.16 acres; (b) Field Survey No.106, whichwas stated to be vesting with the wife of Vithaldas, having been giftedby her father-in-law Jagannath, and found that the same continued tobe in possession of Jagannath, as also recorded in the Record of Rightsand crop statements; (c) the land allotted to the two major daughtersof Vithaldas, Shakuntala and Durgadevi.

10. The appeal proceedings were lodged by Vithaldas, his wife,the son and the third daughter, Beladevi, under Section 33 of the saidAct. The other two minor daughters, who had attained majority before2.10.1975, however, did not file the appeal as they were apparentlysatisfied with the view adopted by the SDO. The State also filed cross-objections challenging the exclusion of the land by the SDO qua (b) &(c) aforesaid. Since the two elder daughters were not aggrieved, theywere neither the appellant, nor the respondent before the appealproceedings. Nor did the State take care to implead them, despite havingfiled cross-objections qua their land. The appeal court, however,dismissed the appeal, and allowed the cross-objections vide order dated3.12.1984. Since the land of the two elder daughters is the only concern,

ABC

DE

F

G

H

Ain this matter, the rationale for allowing the cross-objections has beenset forth.

11. The principal plea, which found favour with the appellateauthority, was that the Partition Deed dated 31.1.1970 was against theprinciples of Hindu law to the extent it gave a share to minor daughtersBin ancestral land. The land is stated to have also continued in thepossession of Vithaldas. Even though the Partition Deed was pre thecut-off date of 26.9.1970, it was opined that the document could belooked into, in a case like the present one, where the property wasapportioned to the two daughters who were not entitled to a share.

C12. The aforesaid appellate order was challenged by Vithaldasand his wife in the writ proceedings before the Bombay High Court,Nagpur Bench, but that petition was dismissed vide oral judgmentdictated over a period of 7.9.1987 to 15/16.9.1987. There were certainother aspects also urged in those proceedings, but they are not relevantfor the present appeal. The High Court agreed with the finding thatDthe daughters, not having a share in the property, a Partition Deed couldnot have conferred any interest on them, albeit it was before the cut-off date of 26.9.1970.

13. An intra-court appeal was preferred, which was dismissedvide impugned order dated 27.11.2007. The Division Bench agreed withEthe findings that the partition effected vide Partition Deed dated31.1.1970 was unnatural as it alienated properties to minor daughters,and that afemale child could not get a share in the ancestral property,even though it was effected before the relevant date of 26.9.1970.Once again, as reflected in the records, the factum of cultivation ofFland by late Vithaldas was taken into account. The attainment of theage of majority by the elder two daughters, before the commencementdate, 2.10.1975, was also ignored as irrelevant.

14. The appellants before the Division Bench also sought to raisethe issue of the two elder daughters not being arrayed as parties in theGcross-objections, even though their existing rights were being affected.Further, it was argued that none of the members of the HUF hadassailed the Partition Deed on any account. These pleas also did notfind favour on the ground that it was late Vithaldas who sought to losethe land and, in effect, it was for him to see how to confer the rightson his two elder daughters. The two elder daughters were held to formHpart of the family unit.

15. The Special Leave Petition (‘SLP’) was filed only by lateVithaldas, through his legal representatives. The two elder daughtersare, thus, appellants as legal heirs of late Vithaldas, in the presentproceedings. This is of significance as the contention of respondents isthat the two elder daughters only stepped into the shoes of late Vithaldas,and that they cannot de novo start proceedings in their own rights.Leave was granted on 31.8.2009, and the interim order of status quowas directed to continue throughout. On 23.11.2016, during the courseof hearing, an order was passed to obtain clarity, whether in pursuanceof the Partition Deed, the transfer of rights was ever reported to therevenue authorities, in terms of Sections 148 & 149 of the MaharashtraLand Revenue Code, 1966. The action, if any, taken by the revenueauthorities was also not apparently reflected in the records before theCourt. Time was granted to place on record the requisite material quathe developments post the execution of the Partition Deed.

16. An additional affidavit was filed on behalf of the appellants,affirmed in March, 2017. On the appellants seeking the record fromthe Tehsil Office of the concerned district, they received a response,informing them that records from 1970 to 1975 are in a mutilatedcondition and that the mutation register for the period from 1964 to 1978is not traceable. The crop statement was not available for the period1970-1972 for Village Mangrul, while for Village Babulgaon the cropstatement was not available for the period 1970-1973, for Survey No.14.It was thus notified that the crop statement for Survey No. 12 was notavailable for the period 1971-1972. The records made available,however, do show that from 1972- 1976, for Survey No. 12, and from1973-1976, as gathered for Survey No. 14, the two daughters wereshown as occupants, but through their guardian. It may be noted thatsomehow, on attaining the age of majority, apparently no endorsementwas made qua the elder two daughters on that aspect. The Record ofRights also shows a similar position.

17. The picture which emerges from the documents produced isthat in pursuance of the Partition Deed, which was obviously produced,both for the Record of Rights and the Crop Register, the names of thetwo elder daughters were entered though through their guardian, lateJagannath (the grandfather), as they were minors at the relevant time,while the corresponding endorsement on their attaining majority, beforethe commencement date 2.10.1975 was seemingly not made.

A

B

C

D

E

F

G

H

A

18. We heard Mr. Krishnan Venugopal, learned Senior Counselfor the appellants and Mr. N.R. Katneshwarkar, Advocate on behalfof the respondent-State.

Deemed Fiction:

19. The legislation in question is a beneficial piece of legislationBand, indeed, must be given the widest amplitude, the object being todistribute land among the landless. The preamble quoted aforesaid setsforth the object of the said Act. But, it is equally true that in givingwider amplitude to such legislation, it cannot be that the Court interpretsthe words of the statute beyond its plain reading reflecting the intentCof the legislation. A preamble has its limitations insofar as being treatedas an aid for the interpretation of a statute. It cannot restrict or enlargethe provisions of the Act.[2] Thus, the provisions have to be read, to seewhether there is any ambiguity, requiring any further aid for constructionof those sections, or whether they are explicit and clear in theirmeaning.[3]D

20. On a reading of the provisions of Chapter III, includingSections 8, 10 & 11 of the said Act, there is no ambiguity as wouldrequire any aid to construct the meaning of those Sections.

21. The commencement date would be the date from which theEprovisions would come into force. However, the amendment of 1972created a deemed fiction by inserting the provision for setting at naughttransactions that may have occurred on a prior date, i.e., from 26.9.1970.The result is that the transactions or transfers in this window of aboutfive years would also be hit by the provisions of the said Act insofaras the determination of surplus land is concerned. The object was “toFprevent circumvention by dubious and indirect methods.[4]” This is theview also adopted by this Court in Gurdit Singh v. State of Punjab,[5]but then this Court had gone on to observe that that was no reasonwhy a construction should be put on the Section which its languagecould hardly bear. The legislation in question in Gurdit Singh v. StateGof Punjab[6] was a similar one, The Pepsu Tenancy and Agricultural 2 Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79; State of West Bengal v.Union of India AIR 1963 SC 12413 The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).4 Gurdit Singh v State of Punjab (1974) 2 SCC 2605 (supra)H6 (supra)

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

Lands Act, 1955. It would be difficult to accept and countenance asituation where, irrespective of limitations imposed in considering thepast time period, any transaction could be so assailed. In the wisdomof the legislature, the window of five years is provided as sufficientfor scrutinizing transactions which could be called “dubious and indirectmethods” to evade the result of the said Act. This is also reinforcedby the provisions of Section 18, dealing with determination of the surplusarea of land where clause (b) specifically provides as under:

“18. (a)

xxxxxxxxxxxxxxxx

(b) whether any land transferred between the period from 26[th]day of September, 1970 and the commencement date, or any landpartitioned after the 26[th] day of September, 1970, should beconsidered or ignored in calculating the ceiling area as providedby sub-section (1) of section 10 or section 11;”

Thus, once again, it is clearly stated that the lands transferredbetween the period 26.9.1970 and the commencement date (2.10.1975)is what is to be ignored in calculating the ceiling area.

22. The effect of the aforesaid provision is that any land, evenif it is obtained by partition or other transfer, after the date of 26.9.1970would be included for the purposes of calculation of surplus land, asland of the person who so transferred the same.

23. The legislature has also taken another caution. The secondExplanation to sub-section (1) of Section 10 also provides that documentsevidencing such transfer even before 26.9.1970 would not be exemptedif they are not registered on or before that date, or even if they areregistered after that date, they are not presented for registration on orbefore that date. The requirement is for the transfer document to be,both executed and presented for registration before the cut-off date.Thus, the possibility of evading the land ceiling limits by creatingdocuments on a back date and subsequently producing them forregistration is obviated.

24. Section 11 specifically talks about the partition deed in asimilar manner and, thus, not only transfers whether by way of sale,gift, mortgage with possession, exchange, lease, assignment of land formaintenance, surrender of a tenancy or resumption of land by a landlordor any other disposition, are included, even the avenue by way of apartition deed has been shut out, unless it has been executed prior to

A

B

C

D

E

F

G

H

Athe cut-off date. There is no doubt that in the present case, the partitiondeed was executed before the cut-off date of 26.9.1970 and registeredeven prior to that date.

25. On behalf of the appellants, a number of judgments have beenreferred to, on how a deemed fiction should be construed. Thus, aBlegal fiction is to be limited for the purpose for which it is created andshould not be extended beyond that legitimate field[7]. There are anumber of judgments referred to in the context of taxing statutes, butthen the rules of interpretation of taxing statutes, to be construed strictly,would be different and there is no purpose in referring to these judicialpronouncements. In the context of the Kerala Land Reforms Act, 1964,Cthe issue of legal fiction was, once again, examined[8]. The sameproposition was, once again, reiterated while observing that a legal fictionis not to be extended beyond the purpose for which it is created, andthat it cannot be extended by importing another fiction. In the contextof Section 4A of that Act, it was held to be circumscribed by expressDwords – a mortgagee in possession was stated to be one who, for acontinuous period of not less than 50 years immediately preceding thecommencement of that Section held that capacity. The words“immediately preceding the commencement” were required to be giventheir ordinary and full meaning as reflecting the legislative intent andthus, only such type of cases where a mortgagee was in possession,Eimmediately preceding the commencement of the Section, wasextendable for a period of 50 years in the past alone. It was furtherobserved as under:

“….However beneficial may be the scope and ambit of the legalfiction created by the legislature while enacting Section 4-A suchFfiction can arise only when the express language of the sectionlaying down the conditions precedent for raising of such a fictionis complied with by the mortgagee-in-possession concernedseeking the benefit of such a deeming fiction. Such a fictioncannot be extended by the court on analogy or by addition orGdeleting words not contemplated by the legislature.”

26. This judgment has found support in a subsequent judgmentof this Court in Raj Kumar Johri v. State of M.P.[9] Thus, the aforesaid 7 Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 6038 Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185H9 (2002) 3 SCC 732

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

being the manner of interpreting a provision for deeming fiction, therelevant dates provided, of 26.9.1970 and 2.10.1975, giving a windowof five years for the State to take action and prevent any dubioustransaction during this period of time, cannot be expanded to an unlimitedprior period of time.

27. This Court, in Uttar Chand v. State of Maharashtra,[10] whiledealing with the very statute has opined that the cut-off date would besacrosanct. The factual contours dealt with partition before the cut-offdate, as also sale of land. Once the cut-off date is provided, it wasobserved that they fell completely outside the ambit of the provisionsof the Act and, thus, the High Court would not be justified in presumingthat the transfers made were either collusive or fraudulent.

-The appellate authority allowing the crossobjections:

-The appellate authority allowing the crossobjections:

28. The order passed by the competent authority, being the SDO,insofar as the two elder daughters are concerned, held in their favouras far as the lands vested in them, in pursuance of the Partition Deed.There was, thus, no occasion for them to file an appeal, nor did theyso file an appeal. Other members of the family, who filed the appeal,did not implead them as parties. Once again, naturally so, as they wouldnot be the interested parties, or even pro forma parties in that behalf.However, once the State decided to file cross-objections and, in that,impugned even that portion of the order of the SDO which held in favourof the two elder daughters, there is no hesitation in stating that theywere necessary parties to those proceedings. It is no answer to saythat since the effect of the land ceiling would be to restrict the area oftheir father, late Vithaldas, it is for Vithaldas to see how he can benefithis daughters. This fundamental defect cannot be cured in thesubsequent proceedings, as the right of appeal is a statutory right andan important one. Thisaforesaid view is reinforced by a catena ofjudicial pronouncements. It has been held that the Code of CivilProcedure, 1908 does not contemplate filing of cross-objections againsta party who is not a party to the appeal[11]. In case such objectionshave to be filed two distinct operations are necessary. He must impleadthe persons as parties qua whom he intends to file cross-objectionsthen he must file the memorandum of cross-objections[12]. The position 10 (1980) 2 SCC 292

11 Rajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533

12 Venkatapathi v. Veerayya AIR (30) 1943 Madras 609

A

BC

DE

FG

H

Awould be no different qua a judicial or quasi-judicial authority as a partyto be effected must get a right of hearing[13]. Thus, unqualified imprimaturcan be lent to this view.

29. Thus, for the aforesaid reason also the cross-objection couldnot have disturbed the status of the two elder daughters.B’Unmarried daughters claim in HUF property:

30. It has already been observed that non-impleadment of thetwo elder daughters would be fatal to the appellate proceedings. But,they are fatal for more than that reason. In fact, the view taken byboth the learned Single Judge and the Division Bench would equallyCfall foul of the legal treatise, enunciating the rights of an unmarrieddaughter. The view taken is that since these lands were given to minorunmarried daughters, they having no share in the HUF property, suchgrant is contrary to law at that point of time.

31. It may be noticed, of course, that the lis has been pending,Dand the current scenario is one where even daughters have been givenrights in the ancestral/HUF property, in terms of the amendment madeto Section 6 of the Hindu Succession Act, 1956. The State ofMaharashtra, where the land is located was a step ahead inasmuch asvide Maharashtra Act 39 of 1994, which was brought into force on22.6.1994, such rights were conferred on women by making them alsoEa coparcener by birth. However, even on the date when the PartitionDeed was executed, the legal position was not as has been enunciated.

32. It has been observed that a father can make a gift withinreasonable limits of ancestral immovable property to his daughter aspart of his moral obligations, at the time of her marriage or evenFthereafter. In fact, there is an observation made that gift made of 1/6[th]of the total holding of the ancestral property is valid[14]. This is in viewof the fact that such gifts made are for pious purposes, but the alienationmust be by an act inter vivos[15].

33. In Guramma Bhratar Chanbasappa Deshmukh v.GMallappa Chanbasappa & Ors.[16], the legal position has beensummarized as under:

13 Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, BiharAIR 1963 SC 786 (WS)

14 Pugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321

15 R. Kuppayee v. Raja Gounder (2004) 1 SCC 295

H16 (1964) 4 SCR 497

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

“15… In Madhaviya, pp. 41 and 42, a text of Katyayana is citedauthorizing the gift of immovable property by a father to hisdaughters besides a gift of movables up to the amount of 2000phanams a year…

…Manu says

“To the unmarried daughters by the same mother let theirbrothers give portions out of their allotments respectively,according to the class of their several mothers. Let each giveone-fourth part of his own distinct share and those who refuseto give it shall be degraded.”

These and similar other texts indicate that Hindu law texts notonly sanction the giving of property to daughters at the time ofpartition or at the time of their marriage, as the case may be,but also condemn the dereliction of the said duty in unequivocalterms. It is true that these Hindu law texts have become obsolete.The daughter has lost her right to a share in the family propertyat the time of its partition. But though the right has beencrystallized into a moral obligation on the part of the father toprovide for the daughter either by way of marriage provision orsubsequently…

…The decision in Kudutamma v. Narasimhacharyalu [(1907) 17MLJ 528] is rather instructive. There, it was held that a Hindufather was entitled to make gifts by way of marriage portions tohis daughters out of the family property to a reasonable extent…

…Wallis, J. in his judgment pointed out that unmarried daughterswere formerly entitled to share on partition and that right fell intodesuetude, a gift made to a daughter was sustained by courts asa provision for the married couple. The learned Judgesummarised the position thus, at p. 532:

“… although the joint family and its representative, the father orother managing member, may no longer be legally bound toprovide an endowment for the bride on the occasion of hermarriage, they are still morally bound to do so, at any rate whenthe circumstances of the case make it reasonably necessary.”…

…Another Division Bench of the Madras High Court consideredthe question in Sundaramya v. Seethamma [(1911) 21 MLJ 695,

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

699] and declared the validity of a gift of 8 acres of ancestralland by a Hindu father to his daughter after marriage when thefamily was possessed of 200 acres of land. The marriage tookplace about forty years before the gift. There was no evidencethat the father then had any intention to give any property to thedaughter. The legal position was thus expounded by the learnedJudges. Munro and Sankran Nair, JJ.:

“The father or the widow is not bound to give any property. Theremay be no legal but only a moral obligation. It is also true that inthe case before us the father did not make any gift and dischargethat moral obligation at the time of the marriage. But it is difficultto see why the moral obligation does not sustain a gift becauseit was not made to the daughter at the time of marriage but onlysome time later. The moral obligation of the plaintiff’s fathercontinued in force till it was discharged by the gift in 1899.”…

...Venkataramana Rao, J. in Sithamahalakshmamma v. Kotayya[(1936) 71 MLJ 259] had to deal with the question of validity ofa gift made by a Hindu father of a reasonable portion of ancestralimmovable property to his daughter without reference to his son.Therein, the learned Judge observed at p. 262:

“There can be no doubt that the father is under a moral obligationto make a gift of a reasonable portion of the family property asa marriage portion to his daughters on the occasion of theirmarriages. It has also been held that it is a continuing obligationtill it is discharged by fulfilment thereof. It is on this principle agift of a small portion of immovable property by a father has beenheld to be binding on the members of the joint family.”

Adverting to the question of the extent of property he can gift,the learned Judge proceeded to State:

“The question whether a particular gift is reasonable or not willhave to be judged according to the State of the family at the timeof the gift, the extent of the family immovable property, theindebtedness of the family, and the paramount charges which thefamily was under an obligation to provide for, and after havingregard to these circumstances if the gift can be held to bereasonable, such a gift will be binding on the joint family membersirrespective of the consent of the members of the family.”

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

This decision was followed by Chandra Reddy, J. of the MadrasHigh Court in Annamalai v. Sundarathammal [(1952) II MLJ 782,784]…

16… The legal position may be summarized thus: the Hindu lawtests conferred a right upon a daughter or a sister, as the casemay be, to have a share in the family property at the time ofpartition. That right was lost by efflux of time. But, it became,crystallized into a moral obligation. The father or hisrepresentative can make a valid gift, by way of reasonableprovision for the maintenance of the daughter regard being hadto the financial and other relevant circumstances of the family.By custom or by convenience, such gifts are made at the timeof marriage, but the right of the father or his representative tomake such a gift is not confined to the marriage occasion. It isa normal obligation and it continues to subsist till it is discharged.Marriage is only a customary occasion for such a gift. But theobligation can be discharged at any time, either during the lifetimeof the father or thereafter. It is not possible to lay down a hardand fast rule, prescribing the quantitative limits of such a gift asthat would depend on the facts of each case and it can only bedecided by courts, regard being had to the overall picture of theextent of the family estate, the number of daughters to beprovided for and other paramount charges and other similarcircumstances...”…

In the aforesaid case, a discussion took place in respect of a GiftDeed executed with respect to a daughter. The acceptability of giftingof a reasonable part of the ancestral property, in favour of daughters,for marriage purposes, was held to be valid, and in accordance withMitakshara law. There is a discussion of even the Manusmriti toconclude that, though it may not reflect the current legal position, butconsistently, the Hindu texts not only sanction the giving of propertiesto daughters at the time of partition, or at the time of marriage, buteven provisions can be made in advance, for the same.

34. The judicial pronouncement in Annamalai Ammal v.Sundarathammal & Ors.[17]may also be noticed, where it has beenobserved as under:

17 AIR 1953 Mad 404

ABC

DE

FG

H

A“5. If the obligation is moral and continuing one and could bemade long after the marriage, could it be said that it is not withinthe competence of a father to make such a gift before themarriage? In my opinion, there is not much difference in principlebetween a gift after the marriage, and a gift before the marriage,Bthe object of such a gift being to make a future provision for thebridal couple.

6. This leads me to the next question whether the circumstancethat a gift is not described as a marriage provision under thedocument renders it an invalid one? To my mind, it appears itCdoes not affect the validity of the gift. When a father makes agift of a reasonable portion of the property to an unmarrieddaughter it may be assumed that it was meant to be a marriageprovision. It is to be observed in this case that under Ex. P. 1the plaintiff was given only a vested remainder and the gift inher favour would take effect only after the lifetime of the firstDdefendant.”

35. The aforesaid judgment received the imprimatur of this Courtin Guramma Bhratar Chanbasappa Deshmukh & Ors. v.Mallappa Chanbasappa & Ors.[18].

E36. The legal view, thus, is very clear:

a. A provision for marriage of unmarried daughters can bemade out of ancestral property.

b. Such provision can be made before, at the time, or evenafter the marriage.F

c. The provision is being made out of pious obligation, thoughthe right of women got diluted over a period of time.However, with the amendment to the Hindu Succession Act,in 2005, a specific right is now conferred on women to geta share on partition of ancestral property, including the rightGto claim partition. As mentioned above this change wasbrought about in Maharashtra in 1994, itself.

37. If the facts of the present case are averted to, the aforesaidis exactly what has been done under the Partition Deed. A provision H18 (supra)

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

was made for the marriage of the daughters. In fact, the provision isfor education and marriage purposes. In the context of where thesociety is today, such an endeavour should be commended as salutary,rather than be frowned upon. It was sustainable in law then, and it ismore than just merely sustainable in law now. Thus, there is no doubtthat there was nothing prohibiting such a provision from being made.If the law permits so, it can hardly be called fraudulent. Thus, the verypremise of allowing the cross-objection has no sustenance in law.

38. It may also be noticed the fact that the two elder daughters,whose rights have been debated actually, even attained majority beforethe commencement date, i.e., they were major unmarried daughters onthe date when the amendments came into force. They were, thus, notincluded even in the family unit in terms of the definition contained underSection 4, which reads as under:

“Section 4 - Land held by family unit

(1) All land held by each member of a family unit, whether jointlyor separately, shall for the purposes of determining the ceilingarea of the family unit, be deemed to be held by the family unit.

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.

(2) For the purposes of this section, all declarations of dissolutionof marriage made by a Court after the 26th day of September,1970, and all dissolutions of marriage by custom, or duly made,pronounced or declared on or after that date shall, for thepurposes of determining the ceiling area to be held by a familyunit, be ignored; and accordingly, the land held by each spouseshall be taken into consideration for that purpose, as if nodissolution had taken place. But, if a proceeding for dissolutionof marriage has commenced before any Court before theaforesaid date, then the dissolution of marriage shall have fulleffect (whether the marriage is dissolved before or after that

A

B

C

D

E

F

G

H

Adate), and shall be taken into consideration in determining theceiling area of a family unit.”

The question of including the daughters would only arise if thedocument of partition deed was found to be fraudulent. Thus, for thisreason also, the property cannot be included and clubbed with the landBof late Vithaldas.

39. As observed above, the form of the document is not importantin this behalf. Such provision can be made in a partition deed. It maybe in the nature of a gift. So what? None of the members of the familyhave ever sought to assail or challenge the same. It is with theCconsensus of the family, apart from the legality of the same. Thejudgment of the Kerala High Court in Ponnu & Anr. v. Taluk LandBoard, Chittur & Ors.,[19]may also be referred to, where, while dealingwith the issue of a ceiling case, the conferring of rights on the son,under a partition deed, was held to be valid as being capable of beingconstrued as a gift. The provisions of Section 122 of the Transfer ofDProperty Act, 1882 (hereinafter referred to as the ‘TP Act’), read withSection 123, were discussed. A gift, being a transfer of property madevoluntarily and without consideration, has to be made by a registeredinstrument. A gift is essentially a transfer. Thus, even if there wereno pre-existing rights, it could be a valid gift, so long as the saidErequirements are met. In the facts of that case, the partition deed wasnot even between the joint owners or co-owners, but between thepersons who owned the land exclusively and another person who heldno existing title or right. It was held that a tribunal could go behindand look at the real nature of the transaction. Reliance was placed onFMade Gouda v. Chenne Gowda,[20] where a person who was not aco-owner was also a party to a transaction, and it was held that thetransaction in regard to that particular item of property was really agift and, thus, the requirements of a valid gift deed should be met.Similarly, in Ramaswami Pattamali v. Lakshmi[21], on a properunderstanding of a transaction, the document was construed as aGcomposite deed of partition and assignment. Also, in Namburi BasavaSubrahmanyam v. Alapati Hymavathi & Ors.[22], while deciding 19 (1981) KLT 78020 AIR 1925 Mad 1174

21 AIR 1962 Ker 313H22 (1996) 9 SCC 388

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [SANJAY KISHAN KAUL, J.]

whether the document in question was a will or a settlement, it washeld held that the nomenclature of the document is not conclusive, andinstead its substance would be determinative. In a nutshell, the view isthat too much importance should not be attached to the nomenclatureof a document and one can look behind the façade of the document todecipher the true nature of the transaction.

40. The aforesaid enunciation of the law reflects the correct legalposition. In the given facts of the case it is not in dispute that the Deedwas a registered document. Thus, even if one construes it as a partition-cum-gift deed, it would make no difference as the requirements of agift deed, under Sections 122 & 123 of the TP Act stand satisfied.

41. Legal position in the context of the facts of the present case,thus, show that even if the document is effectively a gift deed, and HinduLaw permits the making of a provision for the daughter for hermarriage, the execution of a partition deed, which has the effect of sucha gift would not nullify the effect of the deed. This is so as a provisionmade for the daughter out of the ancestral property would be incompliance of the pious obligation.

42. In the end, it may be noted that the only aspect on whichthe debate occurred was the share of the two elder daughters, and theright to retain the land as their separate land, without it being adjustedwith the lands of late Vithaldas. The findings above, thus, lead to theconclusion that the view taken by the SDO vide order dated 7.5.1984,regarding the land of the two elder daughters, is the correct view, andthe subsequent view by the appellate authority faulted on more thanone reason, as mentioned aforesaid. The further imprimatur of that viewby the learned Single Judge and the Division Bench of the High Court,thus, also cannot be sustained.

43. The impugned orders of the appellate authority, the learnedsingle Judge and the Division Bench are, thus, liable to be set asideand the view taken by the SDO, restored, qua the lands located inSurvey Nos.12 & 14 of Babhulgaon, giving rights to the two elderdaughters, who are the appellants in the present proceedings.

44. If any consequential orders are to be passed by thecompetent authority, arising from the aforesaid finding, the needful bedone within a period of two months of the order being placed beforethe said authority.

A

B

C

D

E

F

G

H

A45. The appeal is accordingly allowed. The parties are left tobear their own costs.

K. M. JOSEPH, J.

B1. Having perused the judgment authored by Brother JusticeSanjay Kishan Kaul, notwithstanding the highest respect that I maintainfor him, I express my inability to concur with his judgment.

2. This appeal is filed by the appellants against the judgment ofthe High Court of Bombay, dismissing the appeal filed by their father,CLate Shri Vithaldas and their mother and confirming the judgment ofthe Learned Single Judge in the Writ Petition filed by their parents andalso the order of the Tribunal under the Maharashtra Agricultural Lands(Ceiling on Holdings) Act, 1961 hereinafter referred to as the Act.

3. Late Shri Vithaldas was married and had three daughters andDa son. He purported to enter into a partition which was registered on31.01.1970. At the heart of the controversy in this case, is the allotmentof shares to his two elder daughters, namely, Smt. Shakuntala and Smt.Durga Devi. They are hereinafter referred to as the elder daughters.They are appellant 1 and 2 in this Court. Both of them were minors atthe time of partition, and the question is whether 31 acres and 29 guntasEof land allotted to them is to be excluded from the account of the familyunit of Shri Vithaldas in determining the surplus land under the Act.Appellants 3 and 4 before this Court are the son and the third daughterof Late Shri Vithaldas.

4. Vithaldas filed a return under Section 12 of the Act onF02.10.1975. The authority passed an order declaring the total holdingsof Vithaldas to be 118 acres and 17 guntas. 60 acres and 27 guntaswere held to be surplus land and in excess of the ceiling area. TheTribunal dismissed the appeal filed by Vithaldas as also cross objectionsby the State. By order dated 02.03.1982, the writ petition filed by ShriVithaldas came to be allowed on the score that principles of naturalGjustice were violated. Thereafter, the Sub-Divisional Officer passedorder dated 07.05.1984 whereunder he excluded the land given to hiselder daughters, viz., Shakuntala and Durga Devi, under the partitiondeed. The land which is allotted to the elder daughters by the partitiondeed, was comprised in village Babulgaon. It comprised of a total 31Hacres and 29 guntas. In Survey No. 12, the area is 17 acres 23 guntas and in Survey No. 14, the area is 14 acres and 6 guntas. He furtherfound that the family unit was entitled to retain 60 acres and 15 guntas.6 acres 15 guntas were found to be Pot kharab lands and adding thesame to 54 acres, (the limit for the lands in question) the family unitwas found entitled to hold 60 acres and 15 guntas. It was further foundthat 59 acres and 35 guntas were deemed to be surplus land underSection 3(2) of the Act. The land gifted to his wife Kamla Devi byShri Jagannath Khatri (fathr of Vithaldas) was found as havingremained with him (the donor) and his name appeared in the record ofrights. Thus, after excluding the 31 acres and 29 guntas of land, allottedto the elder daughters and the land which was gifted to the wife ofVithaldas but continued to be in possession of the donor, the total landwas 119 acres and 50 guntas.

5. Ceiling Appeal No. 59 of 1984 came to be filed by Vithaldas,his wife and appellants 3 and 4 who are the son and youngest daughterof Vithaldas.

6. The State of Maharashtra, on the other hand, filed crossobjections. The subject matter of the cross objection was as follows:

Land gifted to Kamla Devi, wife of Vithaldas was wronglyexcluded from the account of the family.

Thereafter, in regard to the partition deed which is the subjectmatter of the controversy before us, the following is stated in the cross-objections:- The State objects to the partition deed at the record page No.71 on following counts- i. The unnatural partition of minor sister is resorted to whenthe natural guardians are alive and nothing untowards isproved against them.

ii. That instead of the present appellants who is the father ofthe minors and major and de facto guardian; the presentpartition deed shows the guardianship with Jagnnath Khatriwho is the grandfather of the minors.

iii. The female child although gets the right to inherit thesuccession “opens” for her only on the death of the parents.Thus the partition deed is un-natural and against thesequence of Hindu Act of Maintenance.

A

B

C

D

E

F

G

H

AThese are the national Acts passed by Parliament. Theunnaturally therefore needs to be done away with.

The entire area with the appellants, wife and appellants are tobe clubbed together as per the definition of the family unit.

7. In the reply filed by Shri Vithaldas and his wife to the cross-Bobjections, in so far as it is related to the partition, it was stated asfollows:

The appellants further denied the contention raised by theRespondent State so far as the partition or allotment of share to theCdaughters is concerned. The nomenclature is immaterial one. Thefactum of possession and cultivation is material one. The learned SubDivisional Officer has rightly excluded the Survey Nos. 13 and 14 ofBabalgaon from counting in the holding and the said finding need notany interference from this Tribunal. The contention raised in this groundare denied.D

8. The Tribunal dismissed the appeal filed by the appellants andallowed the cross objections. Resultantly, the land, which is the subjectmatter of partition deed and which stood allotted to the elder daughtersand the property which was the subject matter of gift deed in favourof his wife came to be included in total land holding of the family. TheEtotal extent of land was found to be 181 acres and 26 guntas. 111 acresand 39 guntas were declared surplus land.

9. Shri Vithaldas and his wife challenged the order before theHigh Court. Therein, appellants 1 and 2 before us were respondents 6and 7. Appellants 3 and 4 before this Court were respondents 4 and 5.FThe learned Single Judge, by judgment, upheld the order of the Tribunal,in regard to viz., the property, which was subject matter of the gift infavour of the second appellant (wife) and the properties which wereset apart for the two elder daughters. On the basis of an errordetermined by the learned Single Judge, the surplus land was held toGbe 103 acres and 36 guntas. It was Shri Vithaldas and his wife whopreferred the Letters Patent Appeal No. 3 of 1991. By judgment dated27.11.2007, which is impugned in this appeal, the Division Bench upheldthe view taken by the learned Single Judge. His wife Smt. Kamladevi,though the 2[nd] appellant before the High Court is made a proformaHrespondent.

10. It is relevant to consider the findings of the Tribunal:

In regard to the partition deed dated 31.01.1970, the contentionof the State was that the daughters were not coparceners. They hadno right to share in partition of ancestral property. Their right openedonly upon the death of the father. The partition was attacked asunnatural. His wife, who was entitled to a share, was not given anyshare. The grandfather was shown as the guardian of the minor childrenthough both the parents were living. The contention of the appellantswas noted that what is material is the factual position as to cultivation.The Ceiling Authorities are not entitled to go behind the partition whichtook place before 26.09.1970. If the appellants-Vithaldas was notholding these lands on 26.09.1970 and thereafter, they could not beincluded.

11. Reliance was placed on the judgment of the Bombay HighCourt:

“In the first place it is contended that Kiran the major unmarrieddaughter who is not included in the concept of “Family unit” underSection 4 of the Act was entitled to share on partition of theancestral and joint family property and therefore, land to theextent of her share should be excluded in “terms of Section 3(3)(i)read with section 4 of the Act. This point has merely to be statedto be rejected. Hindu Law is clear what only certain femalessuch as wife, widow, widow mother, grand mother only areentitled to share on partition. Unmarried daughters major or minor,married or unmarried does not belongs to that category offemales.”

12. Reliance was also placed on judgment in Writ Petition No.2791 of 1976 by the Nagpur Bench of the Bombay High Court. Thereinit was found that the High Court had ignored a partition with thedeclarant’s mother, by registered partition deed dated 09.01.1970.

13. The appellants-elder daughters, who were allowed shares inpartition, were found to be minors. Shankuntala, whose date of birthwas 03.11.1955 was 14 years of age and Durga Devi, whose date ofbirth is 29.08.1957, was 12½ years old, when the partition was effectedon 31.01.1970.

14. Vithaldas continued to be the owner as title had not passedto the two daughters by a legally valid instrument.

A

B

C

DE

F

G

H

A

15. As far as the actual possession was concerned, the CropStatement in respect of Survey No. 14 for the year 1970-1971 and 1971-1972, showed the cultivation by Vithaldas. For the years 1972-1973 to1974-1975, it was shown as jointly cultivated by Vithaldas and daughterDurga Devi.

B16. In respect of Survey No.12, the property allotted to daughterShakuntala, it was found that it was being cultivated by Vithaldas alongwith daughter Shakuntala.

17. That crop statements for other years were not filedit wasnoted. Ludicrous it was found that the minor daughters had theCnecessary wherewithal to cultivate the land independently. It was foundthat Vithaldas continued to hold the lands.

18. The writ petition was filed, viz., [Writ Petition No. 111 of1985] by Vithaldas and his wife and wherein respondent 6 was Smt.Shakuntala and respondent 7 was Smt. Durga Devi, the elder daughters.Be it noted that the elder daughters did not challenge the order of theDTribunal. The learned Single Judge has proceeded to uphold the findingsof the Tribunal except as we have noticed.

19. Learned Single Judge referred to Bhagwandas Heda andothersv. State of Maharashtra and others1, and the decision in WritPetition No. 2997 of 1976, and thereafter, proceeded to hold as follows:E

“8. Moreover, it may be seen that although the respondents 6and 7 were major on the commencement date i.e. 2-10-1975,they were still minor being aged 14 and 12 and half years,respectively, on 31.01.1970, when the partition was affected. Infact, their father, was, therefore, in possession of their allegedFshares in field S.No.14 of village Babhulgaon and the cropstatements for the years 1970-71 and 1971-72 show hiscultivation, while crop statements for the years 1972-73 to 1974-75 show the joint cultivation by him and his daughter Durgadevi.As regards field Survey No. 12, during the year 1974-75 theGfather Vithaldas along with his daughter Shakuntala is shows asjointly cultivating the said filed. AS regards filed Survey No. 14for the years 1970-71 and 1971-72 Vitthaldas is shown to havecultivated the said field. It is on the basis of these facts that thelearned M.R.T. held that the petitioner Vithaldas was holding field H1 1983 Mh. L.J. 825

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

survey no. 12 admeasuring 17 acres 28 gunthas and survey no.14 admeasuring 14 acres 6 gunthas of village Babulgaon, whichis alleged to be allotted to the shares of the respondents 6 and 7,respectively, in the alleged partition deed dated 31-1-1970. In myview, the above finding is correct, or not any rate cannot be saidto be perverse on the basis of the evidence on record in theinstant case. It, therefore, deserves to be upheld.”

Though the appeal was filed before the Division Bench, by ShriVithaldas (appellant No.1) and his wife, during the pendency of theappeal Vithaldas passed away. Thereafter, the impugned judgment wouldshow Respondents 4 to 7 as LRs of appellant No.1.

20. Before the Division Bench, attention of the judgment in thisregard in Uttar Chand (Dead) by Lrs.v. State of Maharashtra andanother2, was invited. The said judgment will be referred to later on.The State pointed out that the partition involved in the said case decidedby this Court was among persons who had an existing interest in theproperty. The fact that wife of Vithaldas who had a right in the partitionwas not given a share, was taken note of. The argument of the Statewas that the partition deed did not effect any transfer in favour of theelder daughters, and therefore, there was no question of recognizingany transfer effected prior to 26.09.1970.

21. Thereafter, the findings are to be found in paragraphs 9, 10,11, 12:

“9. We have carefully considered the rival submissions. First, in1970, there could be no question of daughters being entitled to ashare of family properties in a partition during the life-time oftheir parents. Further, showing father of appellant No. 1, as theirguardian in such a partition, would not result in severing themfrom the appellants’ family. Had appellant No.1 so wished, hecould have gifted the properties to respondent Nos.6 and 7, butthat too would not have mattered so long as respondent Nos.6and 7 continued to be a part of his family. The judgment of theSupreme Court in Uttar Chandv. State of Maharashtra, reportedat AIR 1980 SC 806, on which the learned Advocate for theappellants places reliance, does not help the appellants, since inthat case, the Apex Court was considering actual transfers

AB

C

D

E

F

G

H

A

effected before the relevant date, whereas in the case at hand,there are no such actual transfers, but only attempted evasion,if we may so describe the partition dated 31-1-1970. Further,as rightly observed by the learned Single Judge, the 7/12 extractsof the fields in question show that they were in joint cultivationof appellant No.1 and his daughters right up to the year 1975.

B

10. It is not necessary to dissect the expression used by theTribunal while discussing the effect of these transfers. As heldin the judgment of this Court in Dadaraov. State of Maharashtra,reported at 1969 Mh.L.J. 813, on which the learned Advocatefor the appellants has placed reliance, such partition may be validor invalid as between the parties. The question is whether it isto be recognized for the purpose of determining the ceiling areaor not. Herein, since there was no transfer by the instrumentdated 31-1-1970 in favour of respondent Nos.6 and 7, there wasno question of recognizing and transfer for the purpose ofdetermining surplus land of appellant No.1.

C

D

11. The learned Advocate for the appellants submitted that thepartition had not been questioned by the concerned members ofthe family and, therefore, there was no reason whatsoever forignoring such partition. He submitted that the question whetherrespondent Nos.6 and 7 were entitled to a share in such partition,could have been agitated only by respondent No.4 Anilkumar andappellant No.2 Kamladevi and it was not open for the State toquestion the rights created in favour of respondent Nos.6 and 7by a document dated 31-1-1970.

E

12. This fallacious contention was rightly repelled by the learnedAGP by pointing out that the State was as much an interestedparty as the family members, because operation of the provisionsof the Act entitled the State to secure the surplus land for thepurpose of their distribution. If the argument of the learnedAdvocate for the appellants were to be accepted, fictitioustransfer, in which the transferor or the transferee had no dispute,would have taken out the entire surplus land out of the provisionsof the Act. Therefore, this contention of the learned Advocatefor the appellants has to be rejected.”

F

G

F

G

22. As regards the flaw in entertaining the cross objection filedHby the State, it came to be dealt with by the High Court on the footing that under Section 33 of the Act, the Code of Civil Procedure, 1908was to be followed. It was found that the observation of the Tribunalabout State not being required to pay court fee, was not proper butnon-payment of court fee was not a matter over which a litigant couldtake advantage. State could approach the Tribunal to make thedeficiency good. Thereafter, the question was posed whether theTribunal could have entertained the cross objection which affected therights of the elder daughters without their presence in the party arraybefore the Tribunal.

23. The High Court dealt with the judgments of the High Courtof Judicature at Allahabad in Kundomal Ganga Ramv. Topamal3Chotamal and Malireddi Venkatapathi and othersv. Malireddi Veerayyaand others—-[4] for the principle that a respondent maintaining crossobjection could do so after a person affected by the cross objectionwas brought on the party array and proceeded to hold as follows inparagraphs 21 and 23:

“21. We have carefully considered these submissions. Apart fromthe question whether respondent Nos.6 and 7 had any right inthe concerned fields, it seems to us that there was absolutely nopossibility of their rights, if any, being prejudicially affected byinclusion of concerned lands in the holding of appellant No.1. Itwould be appellant No.1, who would stand to lose correspondingacreage after adjusting the claims of respondent Nos.6 and 7, ifhe was so keen to ensure that they got what he desired to givethem. The order passed by the Tribunal was not one directedagainst respondent Nos.6 and 7, but was one which affected therights of the appellant. There is no similarity with the facts ofthe unreported judgment in the case of Balkrishna MaharajMandir, referred to above, because in that case, Tarasingh wasa tenant, who was also a party before the Surplus LandDetermination Tribunal. Therefore, we do not find any force inthe submissions made on behalf of the appellants as the proxyof respondent Nos.6 and 7.

xxxxxx

xxx

23. To sum up, we hold that validity of the partition dated 31-1-1970 has not been questioned by the Tribunal. All that the Tribunal 3 AIR 1953 Allahabd 710

4 AIR 1943 Madras 609

AB

C

DEF

G

H

A

Aand the learned Single Judge did was to take into account thefact that lands continued to be with appellants as there was noseverance of respondent Nos.6 and 7 from appellants’ family.As for court-fees on cross-objection, though we disapproveobservations of the Tribunal, the defect is curable and cannot helpappellants in pocketing a chunk of land, which should becomeBavailable to the State for distribution. Respondent Nos.6 and 7were not necessary parties to the cross-objection, first, becauseof absence of subsisting interest in the properties, and secondly,because appellants could be trusted to take care of theirdaughters’ interests from their own property, rather than resortingCto what may be proverbially described as “Robbing Peter to payPaul”. Lastly, claim for exclusion of field survey no.106 ofSawangi, contending that the gift dated 20-1-1955 was not actuallyreceived, while at the same time taking a diametrically oppositestand about document dated 30-1-1970, amounts to blowing hotand cold in the same breath.”

D

And on this basis the appeal came to be dismissed.

CONTENTION OF THE APPELLANTS

24. The arguments addressed by the learned senior counsel forthe appellants run thus:E

There was a partition entered into and registered on 31.01.1970.Thereunder, certain lands have been set apart to the daughters of ShriVithaldas. Shri Vithaldas had three daughters and one son besides hiswife. All the three daughters were minors as on 31.01.1970. Thecommencement day is 02.10.1975. The elder daughters turned majorFprior to the appointed day. Therefore, having regard to the meaning ofthe words “family unit”, as contained in Section 4 of the Act, theproperty held by the elder daughters, which were acquired under theregistered partition deed dated 31.01.1970, must be excluded incalculating the land holding by the family unit. He seeks to buttress hisGposition by pointing out that the Legislature has fixed the cut off dateafter which partition deed would be ignored for the purpose ofcalculation of the ceiling limit. Indeed, Section 11 of the Act, declaresthat any partition after the 26[th] Day of September, 1970 shall be deemedunless the contrary is proved to have been made in anticipation or inHorder to avoid or defeat the objective of the Amending Act, 1972 and shall accordingly be ignored. Consequently, the land covered by suchpartition shall, for the purpose of this Act, be the land held by the family.The appellants placed further store by Section (10) of the Act whichagain contemplates 26.09.1970 as the date beyond which transferswould be held to be infirm as executed for defeating the object of theAmending Act, 1972. Section 10 of the Act further proceeds to declarethat the ceiling account will be determined ignoring such transfers. Asfar as Section 8 of the Act is concerned, it is directed against transfermade on or after the commencement date, viz., 02.10.1975. Theexplanation supplies the meaning of the word “transfer” for the purposeof this Section in a most wide manner and I need not be detained furtherby the contours of the said definition.

The argument of the appellants is that the Legislation in questionis expropriatory. Therefore, such a Statue must be interpreted, no doubt,by giving full play to the express provisions but it cannot go beyond thesame. In other words, having regard to the fact that the partition deed,at the heart of the controversy in this case, is executed and registeredon 31.01.1970 much before even 26.09.1970 and many years beforethe commencement day, the partition deed must be given full operationresultantly. Properties, which stood allotted to elder daughters under thepartition deed, must be excluded from the account of the family unit asby the said day, the elder daughters had become major, and could nolonger be members of the family unit.

25. It is contended by the learned senior counsel for theappellants that there is no case for the respondent-State that thepartition was a collusive one. The further contention raised by thelearned senior counsel for the appellants is that the Tribunal actedillegally in allowing the cross objection of the respondent-State andthereafter holding that the partition deed dated 31.01.1970 is to beignored.

26. The learned counsel for the appellants has contended that alegal fiction should not be extended beyond the purpose for which itwas created. In this regard, appellants relied on the following case law5– Bihar Immunity Company Ltd.v. State of Bihar and Others;Commissioner of Income-Taxv. Bombay City I, Bombayv. AmarchandN. Shroff by his heirs and legal Representatives6;Commissioner of 5 (1955) 2 SCR 603

6 AIR 1963 SC 1448

A

BC

DE

F

G

H

AIncome Tax, Kanpurv. Mother India Refrigeration Industries (P)Ltd.7;8Bijender Singhv. State of Haryana and another.

27. It is also sought to be contended that the purpose of the legalfiction is to be ascertained from the plain language of the provisionsthat creates it (See Commissioner of Income-Tax, Delhiv. S. TejaBSingh9).

28. Irrespective of how beneficial the object of the Statute maybe, the deeming fiction cannot be extended beyond the purpose ofcreating the fiction (See Mancheri Puthusseri Ahmed and Othersv.Kuthiravattam Estate Receiver10).

C

29. Still further, it is contended that while interpreting the deemingfiction, recourse to the object of the Statute would be permissible onlywhere the language is ambiguous (See (2009) 1 SCC 540). There canbe no quarrel with these principles.

CONTENTIONS OF THE STATED

30. Per contra, the learned counsel for the respondent-Statewould seek to support the order of the High Court. He would point outthat despite and notwithstanding the so-called partition deed dated31.01.1970, it was the father who continued to be in possession and totake the income. He was equally carrying out the cultivation. PartitionEdeed, therefore, was a ruse and it is not to be taken into account fordetermining the extent of the land and the land seemingly allotted tothe elder daughters must also be taken into consideration which is whathas been done by the Tribunal and approved of by the High Court. Hewould point out that the court must lose sight of the fact that theFLegislation is a beneficial Legislation intended to empower the landlessby endowing them with property rights over land and the judgment ofthe High Court does not warrant interference.

THE ‘ACT’: SINCE ITS ENACTMENT AND CHANGESRELEVANT TO THE CONTROVERSYG

31. It is necessary to appreciate the scheme of the Act. The Actwas enacted in the year 1961. Section 2(4) defined the appointed day 7 (1985) 4 SCC 1

8 (2005) 3 SCC 6859 AIR 1959 SC 352H10 (1996) 6 SCC 185

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

as meaning “the day on which this Act comes into force”. The Act assuch came into force on 26.01.1962. It is relevant to note that drasticchanges have been brought about subsequent to the enactment in 1961.To understand its impact, the provisions of Sections 3, 4 and 5 asoriginally enacted are referred to here under: - Section 3 read as follows: - “In order to provide for the more equitable distribution ofagricultural land amongst the peasantry of the State ofMaharashtra (and in particular, to provide that landless personsare given land for personal cultivation), on the commencementof this Act, there shall be imposed to the extent, and in themanner hereinafter provided, a maximum limit (or ceiling) on theholding of agricultural land throughout the State.”

Section 4 read as follows:-

“4(1) Subject to the provisions of this Act, no person shall holdland in excess of the ceiling area, as determined in the mannerhereinafter provided.

Explanation.- A person may hold exempted land to any extent.

(2) Subject to the provisions of this Act, all land held by a personin excess of the ceiling area, shall be deemed to be surplus land,and shall be dealt with in the manner hereinafter provided forsurplus land.”

Section 5 provided for the ceiling area

Chapter III in which Sections 8 and 9 11 fell, is to be noticed.

“8. No person who, on or after the appointed day, holds landinexcess of the ceiling area, shall on or after that day transfer orpartition any land until the land in excess of the ceiling isdetermined under the Act; Explanation.- In this Section “transfer” means transfer by actof parties (whether by sale, gift, mortgage with possession,exchange, lease or any other disposition) made inter-vivos; and“”-partition means any division of land by act of parties made intervivos.”

The appointed day, it has been noticed was the 26[th] day ofJanuary, 1962.

A

B

C

D

E

F

G

H

A“9. No person shall, at any time on or after the appointed day,acquire by transfer or partition any land, if he already has landin excess of the ceiling area, or land which together with anyother land already held by him will exceed in the total the ceilingarea.

BExplanation.- In this section, “transfer” and “partition” have thesame meaning as in Section 8.”

Section 12 fell under Chapter IV under Chapter Heading SurplusLand and it provided for filing returns.

Reference is made to the far-reaching changes which wereCbrought out by the Maharashtra Act No. XXI of 1975. The preamblereads as follows:

“WHEREAS, in the State of Maharashtra, the MaharashtraAgricultural Lands (Ceiling on Holdings) Act, 1961 imposed forthe first time, in the public interest the maximum limit (or ceiling)Don the holding of agricultural land, and provided for the acquisitionof land held in excess of the ceiling for distribution thereofamongst the peasantry of the State, and in particular, amonglandless persons; and for other purposes therein stated; AND WHEREAS, it is now expedient to lower, in the publicEinterest, the maximum limit (or ceiling) on the holding ofagricultural land in the State for making available additional landas surplus, so as to secure a still more equitable distribution ofland, and for the purpose of removing economic disparities, andthereby for assisting more effectively landless and other persons;Fand generally for the purpose of so distributing the agriculturalresources of the community as best to subserve the commongood, and also to prevent the concentration of the means ofagricultural production and wealth to the common detriment.”

G

It was to come into force on such day, as it was notified. It cameinto force from 19/09/1975.

32. Section 2(6A) of the Act defines the “commencement date”to mean the 2[nd] Day of October, 1975.

33. “Family” is defined in Section 2 (11) of the Act:

H

“2(11) “family” includes, a Hindu undivided family, and in the caseof other persons, a group or unit the members of which by customor usage, are joint in estate or possession or residence;”

34. Section 2(14) is relied upon by the learned counsel for theState and it defines the words “to hold land”:

“2(14)”to hold land”, with its grammatical variations and cognateexpressions, means to be lawfully in actual possession of landas owner or as tenant; and “holding” shall be construedaccordingly;

35. Section 2(21) also relied on by the State defines the word“owner”:

“2(21)”owner”, in relation to any land, includes the person holdingthe land as occupant, 4[or superior holder as defined in the Code],or as lessee of Government, a mortgagee-in-possession, and aperson holding land for his maintenance;”

36. Section 3(1) contains the actual prohibition in the matter ofholding land and it reads as follows:

“3(1)Subject to the provisions of this Chapter and Chapter III,no person or family unit shall, after the commencement date, holdlandin excess of the ceiling area, as determined in the mannerhereinafter provided.

Explanation.–A person or family unit may hold exempted landto any extent.”

37. Section 3(3) may also shed light:

“(3) Where any land–

(a) is held by a family of which a person is a member, (b) is held in or operated by a co-operative society of which aperson is a member,

(c) is held by a person jointly with others, (d) is held by a person as a partner in a firm

and the holding of such person or of a family unit of which suchperson is a member[including the extent of share of such person,if any, in the land answering to any of the descriptions in clauses

A

B

C

D

E

F

G

H

A

A(a), (b), (c) or (d) above] exceeds the ceiling area on or beforehe commencement date or on any date thereafter (hereinafterreferred to as the relevant date), then for the purpose ofdetermining the ceiling area and the surplus land in respect ofthat holding, the share of such person in the land aforesaid shallbe calculated in the following manner :–B

(i) in the land held by a family of which the person is a member,the share of each member of the family shall be determinedso that each member who is entitled to a share on partition,shall be taken to be holding separately land to the extent ofhis share, as if the land had been so divided and separatelyheld on the relevant date; C

(ii) in the land held in or operated by a co-operative society orheld jointly with others or held by a firm, the share of theperson shall be taken to be the extent of land such personwould hold in proportion of his share in the co-operativeDsociety, or his share in the joint holding or his share as partnerin the firm, as if the land had been so divided and separatelyheld on the relevant date.”

38. Section 5 provides for “ceiling area”. Section 5(1) and 5(2)reads as follows:

E

“5. Ceiling Area.- (1) In each of the districts and talukas specifiedin column 1 of the First Schedule, for each class of land describedin columns 2, 3, 4, 5 and 6 thereof, the ceiling area shall be thearea mentioned under each such class of land against suchdistrict or taluka.

F

(2) If a person, or a family unit, holds land of only one class, theceiling area for his or its holding shall be the ceiling area for thatclass of land.”

39. I may now note Sections 8,9,10 and 11 of the Act, whichsubstituted the earlier provisions:

G

“8.Restrictions on transfer.- Where a person, or as the case maybe, a family unit holds land in excess of the ceiling area on orafter the commencement date, such person, or as the case maybe, any member of the family unit shall not, on and after thatdate, transfer any land, until the land in excess of the ceiling areais determined under this Act.

H

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

Explanation.–In this section, “transfer” means transfer, whetherby way of sale, gift ,mortgage with possession, exchange, lease,assignment of land for maintenance, surrender of a tenancy orresumption of land by a landlord or any other disposition, whetherby act of parties made inter vivos or by decree or order of acourt, tribunal or authority(except where such decree or orderis passed in a proceeding which is instituted in such court, tribunalor before such authority before the 26[th] day of September 1970),but does not include transfer by way of sale or otherwise of landfor the recovery of land revenue or for sums recoverable asarrears of land revenue, or acquisition of land for a public purposeunder any law for the time being in force.

9. Restrictions on acquisition of land in excess of ceiling area.- No person or a member of a family unit shall at any time, on orafter the commencement date, acquire by transfer any land ifhe, or as the case may be, the family unit already holds land inexcess of the ceiling area or land which together with any otherland already held by such person, or as the case may be, thefamily unit, will exceed in the total the ceiling area.

Explanation.–In this section, transfer has the same meaning asin section 8.

10. Consequences of certain transfers and acquisitions of land.-(1) If- (a) any person or a member of a family unit, after the 26[th] dayof September 1970 but before the commencement date,transfers any land in anticipation of or in order to avoid ordefeat the object of the Amending Act, 1972 or (b) any land is transferred in contravention of section 8 then,in calculating the ceiling area which that person, or as thecase may be, the family unit, is entitled to hold, the land sotransferred shall be taken into consideration, and the landexceeding the ceiling area so calculated shall be deemedto be in excess of the ceiling area for that holding,notwithstanding that the land remaining with him or with thefamily unit may not in fact be in excess of the ceiling area.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

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 underthe provisions of sub -section (3)], land to the extent of suchdeficiency shall, subject to rules made in that behalf, also bedeemed to be surplus land, notwithstanding that the holding ofthe transferee may not in fact be in excess of the ceiling area.

Explanation. – For the purposes of clause (a) ‘ transfer ‘ hasthe same meaning as in section 8.

All transfers made after the 26[th] day of September 1970 butbefore the commencement date, shall be deemed (unless thecontrary is proved) to have been made in anticipation of or inorder to avoid or 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 ofthe ceiling 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 anyperson, or as the case may be, a family unit, exceeds the ceilingarea, the land so in excess shall be surplus land.

(3) Where land is acquired in wilful contravention of section 9,then as a penalty therefor, the right, title and interest of theperson, or as the case may be, the family unit or any memberthereof in the land so acquired or obtained shall, subject to theprovisions of Chapter IV, be forfeited, and shall vest without anyfurther assurance 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 the VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

encumbrance is made by him, direct that the right, title andinterest of the holder in some other land of the holder equal inextent to the land acquired in wilful contravention of section 9,shall be forfeited to Government.

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 havebeen made in anticipation of or in order to avoid or defeat theobject of the Amending Act, 1972, and shall accordingly beignored, and any land covered by such partition shall, for thepurposes of this Act, be deemed to be the land held by the family;and the extent of share of each person in the land held by thefamily shall be taken into consideration for calculating the ceilingarea in accordance with the provision 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.”

40. Section 12 falling in Chapter IV deals with submission ofreturns and provides for submission of returns. Section 12(1) reads asfollows:

“12: SUBMISSION OF RETURNS – [If any person or familyunit -

(1) (a) has at any time after the 26th day of September 1970 butbefore the commencement date held, or (b) on or after the commencement date acquires, holds or comesinto possession of, any land (including any exempted land), inexcess of the ceiling area, or”

41. Section 14 provides for the power of the Collector to holdinquiry:

“14. Power of Collector to hold enquiry.-(1)As soon as may beafter 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 eitherof those sections, and such record as he may consider it

A

BC

D

E

F

G

H

A

necessary to refer to, hold an enquiry in respect of everyperson2[or family unit] holding and in excess of the ceiling area,and shall, subject to the provisions of this Chapter, determine thesurplus land held by such person2[or family unit.

(2) Where a person or family unit holds land in two or moreBtalukas of the same district, the enquiry shall be held by suchofficer or authority exercising the powers of the Collector whomthe Collector-in-charge of the district may by order in writingdesignate.

(3) Where a person4[or family unit] holds land in two moreCdistricts of the same division, the enquiry shall be held by theCollector whom the Commissioner may, by order in writing,designate.

(4) Where a person4[or family unit] holds lands in differentdivisions, the enquiry shall be held by the Collector whom theDState Government may, by order in writing,designate.5[(4A)Where a person holding land in an industrialundertaking, the enquiry may be held by the Collector whom theState Government may, by order in writing, designate].(5)TheCollector so designated, shall for the purposes of the enquiry, beEcompetent to exercise jurisdiction under this Act in respect ofsuch person6[or family unit] and the lands held by him[or it].”

42. Section 18 is of vital importance to consider the questionand it reads as follows:

“18. Collector to consider certain matters.-18.On the day fixedFfor hearing under section 14, or any other day or days to whichthe inquiry is adjourned, the Collector shall, after hearing theholder and other persons interested and who are present and anyevidence adduced, consider the following matters, that is to say,–

(a) what is the total area of land which was held [by the holderGon the 26[th] day of September, 1970;

(b) whether any land transferred between the period from the26[th] day of September 1970 and the commencement date,or any land partitioned after the 26[th] day of September 1970,should be considered or ignored in calculating the ceiling areaHas provided by sub-section (1) of section 10 or section 11; (bb) whether the holder has any share in the land held by afamily or held or operated by any co-operative society orheld jointly with others or held as a partner in a firm; andthe extent of such share;

(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 bythe[holder] in contravention of section 8 or 11 and if so,whether the land so transferred or partitioned should beconsidered or ignored] in calculating the ceiling area underthe provisions of sub-section (1) of section [10 or section11?]

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

(f) whether any land has been acquired on or after the[commencement date] by testamentary disposition,devolution on death 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 which10[the holder] is entitledto hold?

(h) whether any land is held by [the holder] as tenant, and ifso, whether his landlord has a subsisting right of resumptionof the land for personal cultivation, under the relevanttenancy law applicable thereto?

(i) whether any land held by[the holder] is to be forfeited toGovernment under sub-section (3) of section 10, or ofsection 13, or should be deemed to be surplus land underany of the provisions of 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 by1[theholder] should be entitled as delimited as surplus land?

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

A

B

C

D

E

F

G

H

A43. Section 21 provides that the Collector is to make a declarationregarding surplus land, etc., after the inquiry.

44. Section 22 provides for compensation for any land acquired.The Section provides for the procedure and method of payment.

45. Chapter VI comes under the Chapter heading “DistributionBof Surplus Land”.

46. Matters including the priority to be observed are indicated.

47. Chapter VII deals with provision of appeal.

48. Section 33 provides that an appeal lies against the order orCaward of the Collector, before the Maharashtra Revenue Tribunal. Sinceit may have a bearing on the argument based on the illegality committedby the Tribunal allegedly in allowing the cross objection, it is referredto and it reads as follows:

“33. Appeals.- (1)An appeal against an order or award of theDCollector shall lie to theMaharashtra Revenue Tribunal in thefollowing cases :–

(1) an order under sub-sections (2) and (3) of section 131[notbeing an order underwhich a true and correct returncomplete in all particulars is required to be furnished; E(2) a declaration2[or any part thereof] under section 21;3[(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;F

(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.

G

(1A) Any respondent, though he may not have appealed fromany part of the decision, order, declaration or award, may notonly support the decision, order, declaration or award, as the casemay be, on any of the grounds decided against him but take cross-objection to the decision, order, declaration or award which heHcould have taken by way of an appeal:

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

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, shall apply in relation to the cross-objection as they apply in relation to the cross-objection underthat rule

(2) Every petition of appeal under sub-section (1), shall beaccompanied by a copy of the decision, order, declaration oraward, as the case may be, 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).”

49. The power of the Tribunal is provided under Section 34, whichreads as follows:

“34. Power of Maharashtra Revenue Tribunal to confirm,etc.-. The Maharashtra Revenue Tribunal, in deciding an appealunder section 33,may confirm, modify or rescind the decision,order, declaration or award or the amended declaration or award,as the case may be.”

50. Section 41 bars the jurisdiction of Civil Court and it reads asfollows:

“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 by theCommissioner, Collector, Tribunal, the officer uthorized 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 Mamlatdar’sCourt Act, 1906.(Bom.II of 1906)”

A

B

C

D

E

F

G

H

A51. No doubt, Section 44(B) excludes pleaders, etc.. It reads asfollow:

“SECTION 44B: PLEADERS, ETC. EXCLUDED FROMAPPEARANCE.-Notwithstanding anything contained in this Actor any law for the time being in force, no pleader shall be entitledBto appear on behalf of any party in any proceedings under thisAct before the Authorised Officer, the Tribunal, the Collector,the Commissioner, the State Government or the MaharashtraRevenue Tribunal:

CProvided 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.

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

52. Among the changes that have been ushered in the definitionclause, the following are noted: - In section 2, sub-Section(5A) was added and it defined ‘Code’Eto mean Maharashtra Land Revenue Code, 1966 and sub-section 6A,which was added as the ‘commencement date’ means date on whichthe Amending Act, 1972, comes into force. Section 2 (11A) was insertedand it purported to define ‘family unit’ to mean family unit as explainedin Section 4.

FIn Section 2(20), definition of ‘member of a family’ wassubstituted and it reads as follows:-

“(20) ‘member of a family’ means father, mother, spouse, brother,unmarried dependent sister, divorced and dependent sister, son,son’s wife, unmarried daughter, divorced and dependent daughter,Gsons’s son, son’s unmarried daughter, son’s divorced anddependent daughter.”

A completely different Chapter came to be inserted as ChapterII. This was done by way of substitution of the earlier Chapter, theHChapter contained in the Act prior to the amendment.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

53. The following questions would arise for consideration by theCourt:-

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

2. Notwithstanding the registered partition dated 31.01.1970,whether the property allotted to the elder daughters of Shri Vithaldasis 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 before theTribunal?

POWER OF AUTHORITIES UNDER THE ACT OVERTRANSACTION PRIOR TO 26.09.1970

54. In order to appreciate the intention of the Legislature in thisregard, the word “transfer” and “partition” as employed in Section 10and 11 of the Act must be understood as meaning a transfer and apartition which is genuine. In other words, a transfer, be it by any means,as defined under Section 8, must actually result in the divesting of rightsof the previous owner and vesting of rights in the transferee. The word“transfer” must be understood, as describing, cases where under thelaw, by means of the devices mentioned in the Explanation to Section8, the previous owner ceases to be the owner and the transfereeacquires his rights. The legislative intention was that such transfers,which otherwise would pass muster as genuine transactions andtherefore would have the effect of defeating the object of the Act ascontained in particular in Section 3 and the Chapter relating todistribution of surplus land should be rendered ineffective. The same isthe position in respect of the partition under Section 11 of the Act. Evenif there is a genuine partition by which shares are in fact allotted to theparties and the parties enjoy the properties as separate owners of whatwas previously joint ownership, their rights will be subsumed andoverwhelmed by the laudable object underlying Section 3 of the Actand the prohibition would have full sway.

55. I have noticed the matters to be considered by the Collectorunder Section 18 of the Act. Apart from clauses (a) and (b), he is dutybound to ascertain other matters. Clause (c) of Section 18 of the Act A

B

C

DE

F

G

H

Aspecifically mandates that the Officer must find out what is the totalarea of land held by the holder on the commencement date. Clause (l)of Section 18 of the Act also contemplates that the Collector may takeinto consideration any other matter which in his opinion is necessaryfor calculating the ceiling area inter alia. Section 3 of the Act read inBconjunction with Section 18(c) and (l), inter alia, establishes that theCollector has power and it becomes his duty, in fact, to ascertain whatis the area held on the appointed day, viz., 02.10.1975. I have noticedthat the Legislature has defined the words “to hold” means, “to belawfully in actual possession of land as owner or as tenant”. Word“owner” is further defined to mean, “in relation to any land includesaCperson holding the land as occupant, superior holder as defined in theCode, lessee of Government, as it is commonly understood”. If theperson is holding the land as occupant, he would be an owner. The word‘occupant’ is defined with reference to its definition in the code. It isnoteworthy that the word ‘owner’ includes the specified categories. IfDa person is owner as it is commonly understood, then he iscomprehended. Therefore, if a person is in possession as an occupantas on the appointed day, the extent of land so held by him, would beconsidered for the purpose of calculating the ceiling limit. Equally, ifthe person is in possession as lessee of the Government, he would incurthe wrath of Section 3 of the Act, should he have land in excess of theEceiling limit inclusive of the land which he holds as lessee of theGovernment. The same is the position with respect to a mortgagee inpossession and a person who holds land for his maintenance.

56. The Collector, therefore, is duty bound in the course of the Finquiry to enquire and ascertain as to what exactly is the holding (asdefined in the Act) as on the commencement day. In the mater ofgleaning the meaning of a Statute and demystifying the words of aStatute and discovering the intention of the legislation, the court mustbear in mind certain presumptions. The court will presume that theGLegislature has taken into consideration the felt necessities of the times.It will further assume that the Legislature was aware of the law as itexists. It will not begin with the assumption that the Legislature isignorant of the opinions expressed by the courts on points of law. Itwill presume that the Legislature was aware of the decisions renderedHby the courts on points of law.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

57. In Sree Meenakshi Mills Ltd., Maduraiv. Commissioner ofIncome Tax, Madras11, this Court had occasion to consider what theword “benami” has come to denote:

“30. Now, the assumption underlying this argument is that theTribunal had found in its order that the intermediaries werebenamidars for the appellants, but there is no basis for this inthe order. In this connection, it is necessary to note that the word‘benami’ is used to denote two classes of transactions whichdiffer from each other in their legal character and incidents. Inone sense, it signifies a transaction which is real, as for examplewhen A sells properties to B but the sale deed mentions X asthe purchaser. Here the sale itself is genuine, but the realpurchaser is B, X being his benamidar. This is the class oftransactions which is usually termed as benami. But the word‘benami’ is also occasionally used, perhaps not quite accurately,to refer to a sham transaction, as for example, when A purportsto sell his property to B without intending that his title should ceaseor pass to B. The fundamental difference between these twoclasses of transactions is that whereas in the former there is anoperative transfer resulting in the vesting of title in the transferee,in the latter there is none such, the transferor continuing to retainthe title notwithstanding the execution of the transfer deed.It isonly in the former class of cases that it would be necessary, whena dispute arises as to whether the person named in the deed isthe real transferee or B, to enquire into the question as to whopaid the consideration for the transfer, X or B. But in the latterclass of cases, when the question is whether the transfer isgenuine or sham, the point for decision would be, not who paidthe consideration but whether any consideration was paid.…”

58. In Kalwa Devadattam and othersv. The Union of India andothers12, the matter arose under Sections 25A, 67 and 30 of the IncomeTax Act, 1922. One of the questions which arose was whether thepartition involved in the said case was sham. The High Court reliedupon the circumstances to find out that the deed of partition involvedin the said case, though registered, was nominal. The object of the 11 AIR 1957 SC 4912 AIR 1964 SC 880

A

BC

D

E

F

G

H

Apartition, it was contended, was to protect the interest of the minor sonsagainst the father who was not even living with the family and wasacting to the detriment of his sons. Though the deed showed apparentlyan equal distribution of the property into four shares of the same value,the property allotted to the share of Nagappa was in reality not worththe amount shown. It was found that the intention of Nagappa was toBmake it appear to the Income Tax Department that no useful purposewill be served by taking steps. In the course, the Court proceeded tohold, inter alia, as follows:

“14. … The deed of partition was undoubtedly executed and wasregistered, but the mere execution of the deed is not decisive ofCthe question whether it was intended to be effective. Thecircumstances disclosed by the evidence clearly show that therewas no reason for arriving at a partition. Counsel for the plaintiffspractically conceded that fact, and submitted that Nagappa’sdesire to defeat his creditors, and to save the property for hissons, was the real cause for bringing the deed of partition intoDexistence.Counsel claimed however that Nagappa had adoptedthe expedient of effecting a partition with the object of puttingthe property out of the reach of his creditors and the genuinenessof that partition should not be permitted to be blurred by theunmeritorious object of Nagappa. But the continued managementof the property by Nagappa since the partition, and the interestEshown by him in prosecuting the suits do clearly support theinference that the deed of partition was a nominal transactionwhich was never intended to be acted upon and was not giveneffect to.…”

F

59. The Legislature, when it enacted the Act, must be presumedto know the state of the law to be that a transfer deed by way of asale or lease or a mortgage, may be nothing but a nominal and a shamtransaction. In a sham transaction, be it a sale or a partition, though ithas all the trappings of a transfer or a partition and it may be registeredGas such, in effect, the transferor continues to be the owner. The personwho was the previous owner, would, in the case of the partition whichis sham, continue to be the owner. A clever camouflage or a documentingenuously disguised as a sale or a partition, cannot be permitted todefeat the intention of the Legislature. If the surrounding circumstancesand the actual reality behind the transaction is objectively probed andHit is established that the transferor or the previous owner, as the case may be, in the case of a transfer or a partition, respectively, continuedto hold the property as such on the appointed day, it must be ignored.

60. A sham transaction demonstrated to be one when theappointed day dawns must certainly be treated as such, and theconsequences, that are well-established in law, must afflict such apretense of a transfer or a partition. Such a power must indeed vestwith the Collector under Section 18 read with Section 3 of the Act. Todeny the Collector such power as the appellants would attempt topersuade the court to hold, would involve asking the court to take leaveof its commonsense and to place an interpretation on the Statute whichwill result in an absurd, besides an unjust situation. The interpretationcanvassed by the appellants would result in defeating the object of theStatute. The interpretation that the Legislature knows the existing lawand that the Legislature does not waste words and further that aninterpretation which, while on the one hand, furthers the object of theStatue, and equally importantly, is one, which the plain language of theStatute is capable of bearing, would persuade this Court to hold thatthe Collector, when in the course of an inquiry under Section 18 of theAct, has before it, materials to show that an ostensible transfer or apartition is nothing but a sham and a person or a member of the familycontinues to hold the land as on the commencement day, it would bewell within his powers to act as per the mandate of the Act and includethe land for the purpose of calculating the ceiling limit.

61. Section 30 of the Act sets out the powers of the Collectorwhen he holds that inquiry under the Act. It declares that the Collectorshall have same powers as are vested in the courts under the Code ofCivil Procedure, 1908 (hereinafter referred to as ‘the CPC’) in tryinga suit in respect of the following matters:

(i) Proof of facts by affidavit;

(ii) Summoning and enforcing attendance of any person andexamining him on oath;

(iii) Compelling the production of documents.

Under Section 31 of the Act, the Collector is obliged to set downreasons for his decision. Thus, the Collector is endowed with the powersof the civil court in the matter of both summoning and enforcingattendance of any person. The person summoned can be examined onoath. He has power also to compel production of any document. For AB

C

DE

F

G

H

Athe purpose of determining whether a document is a collusive, afraudulent or a sham transaction, it would indeed be argued that theAuthority to so decide must be in a position to consider relevantevidence in the form of deposition of witnesses as also evaluatedocumentary evidence which may throw light on the matter. Suchpowers are expressly conferred on the Collector and the powers areBthe same as that which the civil court enjoys in this regard.

62. The argument of the appellants that the remedy open to theState would be to have a suit instituted and invite a civil court toadjudicate and pronounce a decree declaring a transaction as sham,does not commend to me. The Legislature has indeed clothed theCCollector with jurisdiction and the power to determine such questions.It would indeed amount to placing an interpretation which would renderthe Statute unworkable. On the other hand, the interpretation that ifmaterials exist in the form of oral or documentary evidence, whichclearly shows that the purported transfer or partition prior to 26.09.1970Dwas a sham transaction, the object of the Statute would be furtheredby allowing the Collector or other authorities to decide the matteraccordingly.

63. In Uttar Chand(supra), this Court in fact was consideringthe provisions of the Act where at a time when Sections 8, 10 and 12Ehad not been amended into its present avtar. The Act itself exemptedlands which were acquired or transferred prior to 04.08.1959. This wasprovided in Sections 8, 9 and 12 of the Act, as it stood. In the saidcase, the High Court has found the transfer to be collusive. So also,was a decree involved in the said case under which a large extent ofland was given to his mother by the adopted son. This Court held “thereFwas neither any pleading nor any case made out either before theDeputy Collector or before the Commissioner to indicate that thetransfer of the lands in favour of the adopted son and the transfer byNemichand in favour of his mother, were collusive or tainted by fraud”.The transaction had been entered into five years before the Act wasGbrought into force. Thereafter, no doubt, this Court went on to hold asfollows:

“3. … Even the Act clearly exempts lands which may have beenacquired or transferred prior to 4-8-1959. Ss. 8, 10 and 12 whichdeal with the subject clearly enjoin that only those transfers wouldHbe hit by the Act which are made at any time on or after 4-8- VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

1959. As both the transfers mentioned above were prior to 4-8-1959, it is obvious that they fell completely outside the ambit ofthe provisions of the Act. The High Court was thus not justifiedin presuming that the transfer made by the appellant in favourof his adopted son and the transfer by the adopted son NemiChand to his mother were either collusive or fraudulent. Therewas neither any foundation in the pleadings nor any evidence tosupport this conjecture of the High Court.”

64. This was in fact a case where the finding of the court isbased on there being no foundation in the pleadings nor any evidenceto support the finding that the transactions were collusive or tainted byfraud. The transactions had taken place a good five years before theAct came into force. On a proper appreciation of the decision, thoughit may be contended that the decision should be understood as declaringthat a transaction, even if it is collusive, having been entered into priorto the cut off date, it cannot be impeached, it may not be the correctway of looking at the decision. If there were pleadings or material tosupport the finding that it was collusive, the decision of this Court maynot have been the same. There being no material to find that thetransaction was either collusive or fraudulent, necessarily the transferbeing genuine, there was no provision in the Act which extended toinvalidate the transaction entered into five years prior to the Act.

65. Section 41 of the Act bars the jurisdiction of a civil court withrespect to any matter which is to be settled, decided or dealt with bythe authorities under the Act including the Collector and the Tribunal.In this view, the bar under Section 44(B) would be insufficient to deprivethe authority of power to declare a sham transfer as such.

66. Another argument raised by the appellants is that the partitioncannot be impeached on the ground that properties are allotted to thedaughters when under the prevalent law the daughters did not haveany right to a share. If at all, anybody could impeach the said partition,it would be only the affected parties, viz., the persons who arelegitimately entitled to a share in partition. This would be for the reasonthat they would be affected parties as their legitimate share would beillegally reduced as a result of giving properties by way of a share tothose who are not legally entitled to the same, viz., the unmarrieddaughters. The persons who would be entitled to share in a partition

AB

C

DEF

GH

Awould be the father and the son besides, no doubt, the wife. Strangely,the wife is not given any share in the partition. Therefore, the argumentis that those sharers whose share would suffer diminution by thepartition alone could possibly question it. This argument is liable to berejected. It is one thing to say that a sharer whose shares may beaffected, could question it in the appropriate forum. It is, however, aBfar cry from maintaining that the Competent Authority under the Act,when it has before it, evidence which points to the transaction being asham or collusive affair, is disabled from finding it to be so. If oneproceeds on the basis that the transaction was sham, the persons whowould benefit from the sham transaction would be the other sharers.CIn the facts of this case, viz., the father, the wife and the son.

67. This is for the reason that it is implicit in the finding that inthe transaction of sham that there is no effective transfer. The propertieswould continue to be held by the father. The daughters would not getany effective share. The other sharers, who would ordinarily haveDchallenged the transaction, viz., the wife and the son, would bethemselves beneficiaries under the transaction and they cannot beexpected to challenge the transaction. Acceptance of the argument ofthe appellants would result in parties defeating the Act by setting up apretense and wearing a cloak and this cannot be permitted.E

68. Thus, it can be concluded as follows:

68. 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 a givencase, on materials being present, be found to be so by the AuthorityFunder the Act; ii. What is contemplated under Sections 10 and 11 of the Act readwith Section 8, undoubtedly, is a transfer as defined in Section 8, beinga genuine transaction. A fraudulent transaction or a sham transactionif entered into before 26.09.1970, would incur the wrath of Section (3),Gand a farce of a partition likewise, bringing about a mock division ofproperty among the sharers, would also incur wrath of Section (3) ofthe Act. No doubt, even if the transaction is a sham transaction, be ita transfer or a partition, needless to say, it would incur the wrath ofSections 10 and 11 and it would not be necessary to justify the invalidityHwith any materials if entered into or effected after 26.09.1970.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

iii. It does not mean that a transaction which is entered into,particularly after the Act came into force, be it a transfer or a partition,and if there are materials and circumstances brought out, whichpersuades Authorities to hold that it is collusive or a sham transactionand the property did not change the hands, the property would not beliable to be treated as held by the previous owner as on thecommencement day and included in the account despite the purportedtransfer or partition.

A

B

WHETHER THE PARTITION ALLOTTING SHARES TO THEDAUGHTERS WAS UNNATURAL AND SHAM

69. The further question which arises for consideration is whetherin the facts of this case, any interference is called for proceeding onthe basis that there is power to find that the transaction is a sham. Thisquestion resolves itself into two further questions. Firstly, what is theeffect of the Tribunal entertaining the cross-objection by the State whenthe two elder daughters of Vithaldas, to whom properties were allottedin the partition, were not parties? Secondly, whether the circumstancesin which the partition was entered into and the material were sufficientfor the High Court to uphold the findings by the Tribunal.

C

D

Taking the second question first, the very first aspect whichstands out is the finding that the partition is unnatural. It is dubbedunnatural for the reason that under the extant Hindu Law, daughterswere not entitled to a share. No doubt, in Maharashtra, Section 29Ahas been inserted in the Hindu Succession Act, 1956 with effect from1994. It reads as follows:

E

“29A Equal rights to daughter in coparcenary property. —Notwithstanding anything contained in section 6 of this Act—

F

(i) in a joint Hindu family governed by Mitakshara Law, thedaughter of a coparcener shall by birth, become acoparcener in her own right in the same manner as the sonand have the same rights in the coparcenary property asshe would have had if she had been a son, inclusive of theGright to claim by survivorship; and shall be subject to thesame liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu family the coparcenaryproperty shall be so divided as to allot to a daughter the sameshare as is allotable to a son:

H

A

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he orshe had been alive at the time of the partition shall be allottedto the surviving child of such pre-deceased son or of suchpre-deceased daughter: Provided further that the shareallotable to the pre-deceased child of a pre-deceased sonor of a pre-deceased daughter, if such child had been aliveat the time of the partition, shall be allotted to the child ofsuch pre-deceased child of the pre-deceased son or of thepre-deceased daughter as the case may be; B

B

C(iii) any property to which a female Hindu becomes entitled byvirtue of the provisions of clause (i) shall be held by herwith the incidents of coparcenary ownership and shall beregarded, notwithstanding anything contained in this Act orany other law for the time being in force, as propertycapable of being disposed of by her by will or otherDtestamentary disposition;

(iv) Nothing in clause (ii) shall apply to a daughter married priorto or to a partition which had been effected before thecommencement of the Hindu Succession (Andhra PradeshAmendment) Act, 1986.E

The next aspect considered relevant for holding the partitionunnatural is that the wife of Shri Vithaldas was entitled in law upon apartition to a share but she is not given any share. The further findingis that Vithaldas continued to be in effective cultivation of the land, andFin this regard, the record of rights was relied upon.

70. The further aspect, which has been enlisted in support ofits finding, is the fact that the minors were represented by theirgrandfather though the natural guardian, viz., Vithaldas, was very muchalive. It is the case of the appellants that giving a share to the daughterGcannot be impugned as done. Under the Hindu Law, daughters wereentitled to maintenance and if the share is set apart to the daughters inlieu of same, it could not be questioned.

The appellants further contended that the two elder daughterswere minors at the time of partition. They attained majority only in theHyear 1973 and 1975 but before the commencement day.

71. There is nothing unnatural if the father cultivates the propertyon behalf of the daughters. The finding by the Authorities, approvedby the High Court, that the daughters did not have the resources tocultivate the land, not only pales into insignificance, but the Authorities/Courts have not appreciated the law correctly.

A BRIEF SURVEY OF CERTAIN ASPECTS OF HINDU LAW

72. In State of Maharashtrav. Narayan Rao Sham RaoDeshmukh and others13 the case arose under the very Act the Courtis concerned with, and therein upon the death of a male leaving behindhim his widow, mother and his son [the respondent therein], the Highcourt held that after the death of the Karta the joint family continuedbut each one of the three were entitled to a separate unit of ceilingarea. This Court took the view that a female member who inheritedthe interest under Section 6 of the Hindu Succession Act did not ceaseto be a member of the family. The Court inter alia held as follows:

“7. As observed in Mayne on Hindu Law and Usage (1953Edn.) the joint and undivided family is the normal condition of aHindu society. An undivided Hindu family is ordinarily joint notonly in estate but in food and worship but it is not necessary thata joint family should own joint family property. There can be ajoint family without a joint family property. At para 264 of theabove treatise it is observed thus:

“264. It is evident that there can be no limit to the number ofpersons of whom a Hindu joint family consists, or to theremoteness of their descent from the common ancestor, andconsequently to the distance of their relationship from each other.But the Hindu coparcenary is a much narrower body... For,coparcenary in the Mitakshara law is not identical withcoparcenary as understood in English law: when a member of ajoint family dies, ‘his right accresces to the other members bysurvivorship, but if a coparcener dies, his or her right does notaccresce to the other coparceners, but goes to his or her ownheirs’. When we speak of a Hindu joint family as constituting acoparcenary, we refer not to the entire number of persons whocan trace descent from a common ancestor, and amongst whomno partition has ever taken place; we include only those persons A

B

C

D

E

F

G

A

A

B

C

D

E

F

G

A

who, by virtue of relationship, have the right to enjoy and holdthe joint property, to restrain the acts of each other in respect ofit, to burden it with their debts, and at their pleasure to enforceits partition. Outside this body, there is a fringe of personspossessing only inferior rights such as that of maintenance, whichhowever tend to diminish as the result of reforms in Hindu lawby legislation.”

B

8. A Hindu coparcenary is, however, a narrower body than thejoint family. Only males who acquire by birth an interest in thejoint or coparcenary property can be members of the coparcenaryor coparceners. A male member of a joint family and his sons,grandsons and great grandsons constitute a coparcenary, Acoparcener acquires right in the coparcenary property by birthbut his right can be definitely ascertained only when a partitiontakes place. When the family is joint, the extent of the share ofa coparcener cannot be definitely predicated since it is alwayscapable of fluctuating. It increases by the death of a coparcenerand decreases on the birth of a coparcener. A joint family,however, may consist of female members. It may consist of amale member, his wife, his mother and his unmarried daughters.The property of a joint family does not cease to belong to thefamily merely because there is only a single male member in thefamily.(See Gowli Buddanna v. CIT [(1966) 3 SCR 224 : AIR1966 SC 1523 : (1966) 60 ITR 293] and Sitabai v. Ram Chandra[(1969) 2 SCC 544 : AIR 1970 SC 343 : (1970) 2 SCR 1] .) Ajoint family may consist of a single male member and his wifeand daughters. It is not necessary that there should be two malemembers to constitute a joint family. (See N.V. Narendranathv. CWT [(1969) 1 SCC 748 : AIR 1970 SC 14 : (1969) 3 SCR882 : (1969) 74 ITR 190]………………….”

C

D

E

F

Women were not co-parceners under the extant law. In thisGregard, the following discussion in Mayne’s Hindu Law and usage, shedslight.

“Women not coparceners.- It is obvious that, on the twinprinciples of a right vested by birth in the male issue only and ofunobstructed heritage, the conception of a Mitaksharacoparcenary is a common male ancestor with his lineal H

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

descendants in the male line, and that the female members ofthe family who have no vested right by birth and come in onlyas heirs to obstructed heritage (Sapratibandha Daya) cannot becopaceners, with the male members though, along with the males,or in exceptional cases by themselves, they are members of theundivided family as a corporate body.”

73. It is to be noticed that partition can be of property which ispreviously held jointly. Mayne’s of Hindu Law states as follows:

“436.Coparcenary property alone divisible.- First the property tobe divided by ex vi termini the property which has been previouslyheld as joint property in coparcenary”.

COPARCENARY PROPERTY ALONE IS PARTIBLE

74. In para 442 the learned author has dealt with the personsentitled to a share under the heading Share for women. The followingis the discussion in regard to wives.

“453.Shares for women.-The interest of the women of the family,whether wives, widows, mothers or daughters, where a partitiontook place at the will of others were specially safeguarded bythe Sanskrit writers.

Wife.-Yajnavalkya says: “If he(father) makes the allotmentsequal, his wives to whom stridhana has been given by the husbandor the father-in-law must be made partakers of equal portions”.Explaining this text, the Mitakshara says: “When the father, byhis own choice, makes all his sons partakers of equal portions,his wives to whom peculiar property had not been given by theirhusband or by their father-in-law, must be made participants ofshares equal to those of sons. But if separate property have beengiven to a woman, the author subsequently directs half a shareto be allotted to her: “Or if any had been given, let him assignthe half”.”

75. A wife however could not demand a partition. The share ofthe wife under the Mitakshra law has been dealt with as follows inMayne’s Hindu Law:

“455. Wife – A wife however could never demand a partitionduring the life of her husband, since, from the time of marriage,she and he are united in religious ceremonies. This is in

A

B

C

D

E

F

G

H

Aaccordance with the fundamental rule of Hindu law as stated inthe text of Harita as quoted by the writers: “There can be nopartition between husband and wife”.

Wife’s share under the Mitakshara law.- According to theMitakshara law prevailing in States other than Madras, a wife isBentitled on a partition between her husband and his sons to a shareequal to that of a son; but she cannot enforce a partition. Shemay either be the mother or the step-mother of the sons. Shecan sue for her share where there has been a partition and shehas not been assigned any share, provided there was no waiverof her rights or acquiescence on her part.”C

Women could not enforce partition. This was a right which wasconferred upon the males “458. Women cannot enforce partition.-Neither the wife, normother nor grandmother is entitled to enforce a partition; the sonsDhave a perfect right to remain undivided as long as they choose.Any alienation of property made by the coparceners without theirconsent will therefore bind the wife, mother or grandmother asthey do not become owners of any shares till an actual divisionof the joint estate.”

E76. Regarding the rights of daughters, in Mayne’s Hindu Law, itis stated as follows:

“461. Rights of daughters. -Where a partition takes place duringthe life of the father, the daughter has no right to any specialapportionment. She continues under his protection till her marriage;Fhe is bound to maintain her and to pay her marriage expenses,and the expenditure he is to incur is wholly in his discretion. Butwhere the division takes place after the death of the father, thesame texts which direct that the mother should receive a shareequal to that of a son, direct that the mother should receive ashare equal to that of a son, direct that the mother should receiveGa fourth share.”

77. The father, no doubt had the power under the Mitakshra Lawto effect a partition even if the sons did not agree to the same.

“471.Father’s power to effect a partition.-A Hindu father underHthe Mitakshara law can, it has been held, effect a partition VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

between himself and his sons without their consentand this isrested on the Mitakshara I,ii,2. This text has been held to applynot only to property acquired by the father himself but also toancestral property. The father has power to effect a division notonly between himself and his sons but also between the sonsinter se. So also it would seem that he has the power to makea division when the sons are dead and his grandsons along areliving.

The power extends not only to effecting a division by metes andbounds, but also to a division of status. In all these cases, thefather’s power must be exercised bona fide and in accordancewith law; the division must not be unfair and the allotments must be equal.”

THE LAW RELATING TO GIFTS BY A HINDU TO HISDAUGHTER

78. In the decision in Annivillah Sundaramyav. Cherla Seethammaand others14, the Court was concerned with the gift of 8 acres ofancestral land by a Hindu father to his daughter after her marriage whenthe family possessed 200 acres. The gift of 8 acres was notunreasonable. In the above scenario it was found that if the fatherhad enforced a partition, he would have admittedly got not less than100 acres. In Pugaria Vettoramal and anotherv. Vettor Gounder, Minor,by his next friend and mother Poochammal and another15, a DivisionBench of the Madras High court elaborately considered the matterrelating to gifts in favour of daughter of a coparcener. In the said case,in fact, the gift was made by paternal uncle in favour of his niece(brother’s daughter). In the course of its discussion, the court held asfollows:

“We have however, no doubt that a gift made by a father to hisown daughter or a daughter of an uncle, provided it be of areasonable amount is valid as against his son and that the questionis really covered by authority.”

Thereafter, the question arose about the quantum of the giftinvolved in the said case. It be noted that the gift was of land worthRs.400 and the family property at the time of gift was worth Rs.2400/

14 1911 (21) MLJ 695

15 1912 (22) MLJ 321

A

B

C

DE

F

G

H

A-. Therefore, it constituted one-sixth of the property in the hands ofthe donor. The Court proceeded to hold as follows:

“The question whether the gift should be set aside on the groundof its being excessive presents more practical difficulty. The textof Yajnavalkya in Chapter I, Section 7, PI. 5, .of the Mitaksharaas interpreted by Vignaneswara defines the share of a daughteras one-fourth of what she would be entitled to if she were a son.The Smrithi Chandrika, in Chapter IV, cites a text of Katyayanawhich says: “For the unmarried daughters a quarter is allowedand three parts for the sons, but where the property is small, theportion is considered to be equal.The author of the SmritiChandrika says (Placituin 28): “ The meaning of the fourth orlast portion of the above text, para 26, is that where the estateis small the share of each sister is considered by Vishnu andothers as being equal to that of a son.Reference has alreadybeen made to the observation of Vignaneswara in hiscommentary on slokas 175 and 176 of Yajnavalkya that it is theduty of a father to provide for his daughters as well as for hissons. The text of Yajnavalkya defining the share of the daughteris no longer legally in force though it would afford a guide indetermining whether any particular gift which is impeached isreasonable or not. As observed in the Viramitrodaya in the textcited in Bachoo v. Mankorebai16the gift should be guided bypropriety but not by caprice. It would be hardly right to lay downthe hard and fast rule that nothing more than a fourth share ofwhat the daughter would get if she were a son can be given inany case as apparently attempted to be done in Damodar Misserv. Senabutty Misrain [17]. The social condition existing at the timeof the gift would be a proper matter to be taken into account;and where the property is very small and the expenses ofmarriage heavy in the community of the parties, it may not beimproper to allot a share equal to that of the son for the expensesof marriage and for dowry together. At the same time, wherethe property is very large, worth say several lakhs of rupees, thecourts may not be prepared to uphold a gift of the sharepermissible according to the text of Yajnavalkya.The right of the B

C

D

E

F

G

16 (1904) 29 Bo.51H17 (1882) 8. Cal. 537

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

daughter not being confined, as pointed out in Rantasami Ayyarv. Vengidusami Ayyar[18] and Churamon Sahu v. Gopi SahuI.L.R.[19] to have the expenses of her marriage defrayed, it mightbe reasonable to allot something more than such expenses evenwhere they are comparatively heavy. At the same time, it wouldnot be fair to the sons that the father, after spending a largeamount on the marriage of his daughter, should make a gift ofany considerable property to her. It must also be borne in mindthat it would be unfair to the daughter that she should be toldthat her claim has been absorbed by excessive expenditure onmarriage contracted by members of the family not for her benefitbut to enable the co-parceners to maintain their social prestige.In Churamon Sahu v. Gopi Sahu (supra), the Calcutta HighCourt upheld the gift of one-third of the family property on theoccasion of the dwiragaman ceremony. The learned Judgesobserve that the question must be determined with regard to thecircumstances of each particular disposition. They refer to a casereported in 2 Morley’s Digest, 198, and cite the observation ofLord Gifford in that case that it was absolutely impossible todefine the extent and limit of the power of disposition because itmust depend upon the circumstances of the disposition wheneversuch disposition shall be made and must be consistent with thelaw regulating such dispositions. In Anivillah Sundararatnaydv. Cherla Sitamma[20] another principle is indicated. The learnedJudges say : “ Here if the father had enforced a partition, hewould have admittedly got not less than one hundred acres andit is impossible to say that a gift of 8 acres is unreasonable.”We are unwilling to adopt this test based upon the father’s rightto dispose of what he gets for his own share on partition fordeciding the question what disposition he might make whileremaining a member of an undivided family. We think it must beleft to the court in each case to decide whether the gift isreasonable in all the circumstances under which it is made. Inthis case, the donor, at the time of the gift, had only one son,and he was an infant. The share given to the 1st defendant was 18 (1898) 22 Mad.113

19 (1909) ILR 37 Cal.1

20 (1911) 21 MLJ 956

AB

C

DE

FG

H

990SUPREME COURT REPORTS

Aone-sixth of the whole. It was apparently considered by the donorthat the property still left to the family would have time to increasebefore his son would have to support a family.He died undividedfrom his son, and apparently never wished to be divided fromhim. One eighth share of the property would be a suitable portionfor the 1st defendant under such circumstances according toBYajnavalkya’s text. What was given was one-sixth or one-twenty-fourth more, worth Rs. 100. We are not prepared to say that, anexcessive portion of the property was given.”

C 79. In Annamalai Ammalv. Sundarathammal and Others21,theHigh Court took note of the fact that there were concurrent findingsthat the property gifted was a very reasonable portion of the propertyand the gift was found valid.

The question fell for consideration of this Court in the decisionreported in Guramma Bhratar Chanbasappa Deshmukh and othersv.DMallappa Chanbasappa and another22. Therein, this Court after anelaborate survey of decisions including the decisions referred to by me,held as follows: -

“18. The legal position may be summarized thus: the Hindu lawtests conferred a right upon a daughter or a sister, as the caseEmay be, to have a share in the family property at the time ofpartition. That right was lost by efflux of time. But, it became,crystallized into a moral obligation. The father or hisrepresentative can make a valid gift, by way of reasonableprovision for the maintenance of the daughter regard being hadFto the financial and other relevant circumstances of the family.By custom or by convenience, such gifts are made at the timeof marriage, but the right of the father or his representative tomake such a gift is not confined to the marriage occasion. It isa normal obligation and it continues to subsist till it is discharged.Marriage is only a customary occasion for such a gift. But theGobligation can be discharged at any time, either during the lifetimeof the father or thereafter. It is not possible to lay down a hardand fast rule, prescribing the quantitative limits of such a gift asthat would depend on the facts of each case and it can only be 21 AIR 1953 Madras 404

22 AIR 1964 SC 510

H

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

decided by courts, regard being had to the overall picture of theextent of the family estate, the number of daughters to beprovided for and other paramount charges and other similarcircumstances. If the father is within his rights to make a gift ofa reasonable extent of the family property for the maintenanceof a daughter, it cannot be said that the said gift must be madeonly by one document or only at a single point of time. The validityor the reasonableness of a gift does not depend upon the pluralityof documents but on the power of the father to make a gift andthe reasonableness of the gift so made. If once the power isgranted and the reasonableness of the gift is not disputed, thefact that two gift deeds were executed instead of one, cannotmake the gift anytheless a valid one”.

80. A Joint Hindu Family would consist of a large number ofpersons. A Joint Hindu Family could, however, be understood to be anarrower body of individuals that constitutes a coparcenary. Thecoparceners, at the relevant point of time, consisted of males, viz., son,grandson and the great grandson. They were persons who were entitledto demand partition. When a partition took place, however, certain otherpersons were also entitled to share in the property. It must beremembered that a partition involves separate enjoyment and what waspreviously jointly held property. A wife of a Hindu while not a coparcenerwas one such person who was entitled to a share in the partition. Buteven when a partition took place, the daughter of a person was not aperson who was entitled to any share.

In order to appreciate the contentions, it is necessary to advertto the relevant portions of the partition deed dated 31.01.1970:

“Partition deed of immovable property at Rs.500/- Partition deed of the land situated at Mangrul and Babhulagaon Executants: 1. Vitthaldas Jagannath Khathri, age 39 years,

2. Anilbabu Vitthaldas Khatri, age 4 years,

3. Ku. Shakuntala d/o. Vitthaldas Khatri, age 14years,

4. Ku. Durgadevi d/o. Vitthaldas Khatri, age 11years.

A

BC

D

E

F

G

H

A

5. Ku. Beladevi d/o. Vitthaldas Khatri, age 8 years.Party No.2,3,4,5 being minors represented by Guardiangrandfather Jagannath Ganeshdas Khatri, age 65 years.Occu. Of all: Agriculture, all r/o. Mangrul Navghare, Tq.Chikhali,Dist. Buldhana.

B

We execute & kept the partition deed as under:- We all are the members of the HUF and party No.2 to 5 arethe issues of part No.1 and party No.3,4,5 are the sisters of theparty No.2 and party No.2 is the brother of party No.3,4,5. Wehave been using our property jointly. Party No.2 to 5 have totake the education and to see that each of them take it freelyand to provide for the expenses therefore and to see that eachof them will meet the expenses out of their own property andthat no dispute took place between them in future, therefore, weare executing and keeping with us this deed of partition. Theproperty fall on the share of each party is shown in front of hisname….

C

D

xxxxxxxxxxxx

In this way we have partitioned over estate, the property fallento the share of party have taken its possession and became thefull owner thereof. Now nobody is concerned with the propertyof others. Out of us for the education and marriage purpose ofparty no.2 to 5 and for the benefits of our family and for thesuccessful future, we of our free will and consideration executedand kept this deed of partition, on this 31[st] day of January, 1970.

E

F

xxxxxxxxxxxx”

81. To the share of party no.1, namely, late Vithaldas, an extentof 23.01 acres in Sy.No.9 of Bhabulgaon village is set apart. Further,in Sy.No.14 Bhabulgaon village 9 acres out of 35.12 acres is alsoallotted to Vithaldas. Thus, a total of 32.01 acres is given to him. InGfavour of his only son, who is aged 4 years and who is the third appellantbefore us, an extent of 30 acres 64 ares is seen set apart. The appellantno.1 (eldest daughter), who is the eldest child and who was aged 14years, was given 17 acres and 23 ares. An extent of 14 acres and 6ares is set apart to the second appellant before us from out of Sy.No.14HBabulgaon out of 35.12 acres who is again the other daughter of VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

Vithaldas and aged 11 years at that time. The fifth party to the partitiondeed Kumari Beladevi aged 8 years is given 14 acres and 06 ares fromSy. No.14 Babulgaon out of 35.12 acres. Thus, it can be seen that fromthe partition deed itself that the extent of land made subject matter ofpartition was 106 acres. This is apart from the land which was thesubject matter of the gift in favour of the wife of Vithaldas who is madea proforma respondent before this Court.

82. Vithaldas was the karta of a Hindu Undivided Family (HUF).The Coparceners were Vithaldas and his son. Vithaldas, as father, hadthe unilateral right to partition the joint family property. The law,however, attached a condition to the exercise of such unilateral powerthat the partition must be fair. Fairness cannot be present when it ismade in complete derogation of the extant law relating to share ofparties on a partition.

83. The terms of the partition deed have been set out. The firstthing that is a striking feature in the partition deed is the exclusion ofthe wife of Vithaldas. In fact, under the Act as it stood in 1970, Section(8) interdicted a partition by a person who on or after the appointedday (26-01-1962), had excess land till the matter was determined. Theword ‘person’ was defined to include a family. Family included a HUF.If the property of 60 and odd acres found held by the wife wasreckoned, on 31-1-1970, as the member of family as defined includedthe spouse, and as the family holding would have crossed 114 acres,the maximum limit in Buldana District, the partition may have been inthe teeth of Section (8) as it stood before substitution by Act XXI of1975. No doubt, I may notice that she was gifted 60 and odd acres byher father and husband from out of the joint property by gift deed dated20.1.1955. However, when the family partition took place, her rightmay continue. If the wife under the Hindu Law, when a partition iseffected, was entitled to a share, the fact that she is not given any share,does raise a suspicion. The father got 32 and odd acres. The son isgiven 30 acres. Most importantly the daughters who had no right areseen given a total of 45 acres and 35 ares. The daughters togethergot 1½ times the share of the son! Any property, which went to thewife, would have been liable to be included in the account of the familyfor the purpose of determining the ceiling limit. It is no doubt true thatthere was no concept of family unit at that time but family as a personwas subject to the ceiling limit. I have noticed the age of both appellants AB

C

DE

F

G

H

Anos. 1 and 2 before us. They were 14 years and 11 years, respectively.The son, in fact, was merely 4 years old and the youngest daughter 8years. The statement in the partition deed that the parties have beenusing their properties jointly itself, is suspect as none of the daughtershad any legal right in the properties. The circumstances which standBagainst the document namely the partition being a genuine transactionare:

1. The age of the children being 4, 8, 11 and 14 years.

2. The wife of the Vithaldas not being given any share.

3. The children being represented by their grandfather as aCguardian when the parents are alive.

4. Allotment of shares to the daughters when daughters did nothave any right to share in the partition of a Hindu Undivided Family atthat point of time. Out of a total of 106 acres, 45 acres and 35 arescan by no stretch of imagination be treated as ‘small’ or ‘reasonable’.DWhile it may be true that after 1994, a Hindu daughter in Maharashtrahad been recognized as a coparcener vide Section 29A of the HinduSuccession Act, 1956 and entitled to a share as such, the question tobe posed and answered is whether such right existed in 1970 whenthe partition was entered into. The answer can only be in the negative.E 84. No doubt, as held by this Court in the decision supra, it was

84. No doubt, as held by this Court in the decision supra, it wasopen to a Hindu to make a gift of a small portion or a reasonable portionof his daughter. In fact, there is a line of thought that though styled aspartition it could be held to be a gift in the absence of a pre-existingright.F85. The question in this case is not whether a gift could have

F85. The question in this case is not whether a gift could havebeen validly made or not by Vithaldas to his elder daughters. It is tobe noted that there is no such case expressly set up that what was theeffected under the partition was a gift or that Vithaldas intended to makea gift of the properties in question to the elder daughters. Though it isstated in the reply to the cross objection that the nomenclature isGimmaterial one, what was intended therefrom is clear from the nextsentence. “The factum of possession and cultivation is material one”.No case of it being a gift is set up before the Tribunal or the High Court.It is to be remembered that definition of ‘member of family’ under theAct included dependent daughters. In the Special Leave Petition, inHground (I), it is stated as follows: - VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

“Because the Hon’ble Division Bench has merely confused thewhole issue where at Para 9 it has observed that the Vithaldascould have gifted the property to his two daughters i.e.Shakuntala and Durga but that too would not have mattered tillthe time the said daughters continued to be part of his family.

It is submitted that the said observation clearly goes beyond theintention and nature behind the said transfer which, was merelya partition in the lines of a family settlement.”

By no yardstick can the circumstances be treated as either legalor natural. I may also notice that in the context of a family arrangementa Bench of 4 learned Judges in the decision reported in Potti LakshmiPerumalluv. Potti Krishnavenamma23, inter alia, held as follows:

“7. No doubt, a family arrangement which is for the benefit ofthe family generally can be enforced in a Court of law. But beforethe court would do so it must be shown that there was an occasionfor effecting a family arrangement and that it was acted upon.It is quite clear that there is complete absence of evidence toshow that there was such an occasion or the arrangementindicated in the will was acted upon.”

86. I would also think that no acceptable reasons are forthcomingas occasion warranting such a partition apart from its illegal and unfairterms.

87. In Made Couda and Ors.v. Chenne Gouda and Ors.24, theappellant was the uncle of the second defendant who was his nephew(his sister’s son). Under a partition, a share was purported to be allottedto the nephew. The District Munsif found that the nephew got a shareas a gift or in consideration of surrender of part of the property to theappellant. The value of the property being more Rs.100/-, whether itwas a gift or an exchange. It offended against, the provisions ofTransfer of Property Act. The first appellate Court took the view thatit was not a gift but a partition and the nephew was made a co-sharer.The learned Judge set aside the findings and remitted the matter backto consider whether any valid title has been acquired independent of 23 AIR 1965 SC 825

24 AIR 1925 Madras 1174

A

B

C

D

E

F

G

H

Athe point decided in the judgment. The learned Court took the view thata person could not by mere recognition as a co-sharer by anotherco-sharer acquire title without complying with the provisions of theTransfer of Property Act.

88. In Ponnu and another v. Taluk Land Board, Chittur andBothers25, though rights were purported to be conferred upon his sonunder a partition deed, it was contended before the authoritythat it maybe treated as gift. It is to be noted that to be a valid gift not only theremust be registration but there must be attestation by two witnesses.[See Section 123 of the Transfer of Property Act]. It is further relevantto notice that in the said judgment the property was the separateCproperty of the father which undoubtedly, he could gift. The gift underthe Kerala Land Reforms Act had the effect of reducing the extent ofland from the account of the declarant. In the facts of this case however,apart from the fact that the question which arises is whether the partition was a sham?, It is to be noted that there is no case that the propertyDwas the separate property of Vithaldas. There can no dispute that theproperty was an ancestral property which he acquired in terms of theearlier partition between him and his father. Even before this Court itis not maintained that the partition is to be construed as a gift.

89. The question, however, relevant to this case is this. ApartEfrom the partition deed being unnatural, was it a sham transaction? Thefinding that the transaction is unnatural apart from raising serioussuspicion effortlessly opens the doors to a finding of it being sham.Ordinarily, in the case of sham transaction its terms deceptively disguisethe underlying truth. The task become uphill when the transactionappears natural, to prove it to be a sham transaction. But when theFtransaction itself is unnatural, the task of the court is made lighter.

90. It is true that there is no express pleading in the crossobjection that the transaction is sham and that Vithaldas continued tohold the land as on 2.10.1975. In Uttar Chand(supra), this Court, infact, has pointed out to the lack of pleading to support the finding thatGtransaction involved in the said case was a collusive one. In fact, itmay be noticed that under the Act what is contemplated is filing a returnby the person or family unit having surplus land followed by an inquiryunder Section 14 read with Section 18 and the declaration under VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

Section 21. The earlier proceedings which has taken place in this casehas not been produced. Be that as it may, the State has filed crossobjection in the appeal. The contents of the said cross objection inrelation to the partition deed has also been noticed.

91. I would think that in the facts of this case, the finding thatthere is no transfer of the interest of Vithaldas under the partition deedis what is essentially involved. In facilitating such a finding, the unnaturalnature of the partition has played a large part. In the facts, the merefact that it is not expressly stated that he continued to hold the land orthat the transaction was a sham transaction by itself may not be fatalto the case of the State though ideally it should have been mentioned.The parties have proceeded before the Tribunal and the High Courtunderstanding the purport of the pleadings in the cross objection to bethat there is no effective transfer under the partition.

THE MATERIALS RELIED ON IN THE ORDER OF THETRIBUNAL IN REGARD TO THE FINDING ABOUT THEPARTITION DEED

92. The Tribunal notes that the eldest among the daughtersShakuntala Bai was born on 03.11.1955. The second of the elderdaughters Durga Devi was born on 29.08.1957. They were 14 and 12½years of age on the date of the partition in 1970. Vithaldas continuedto be the owner as the title has not passed by a legally valid instrument.As regards the actual possession in regard to Survey Nos.14 and 12of Babul Gaon in which the elder daughters were allotted the shares, itwas found as follows:

“15. As regards the actual possession of S.Nos. 14 and 12 ofBabulgaon, the crop-statements in respect of S.No.14 for the year1970-71 and 71-72 shows the cultivation of Vithaldas, whileduring 1972-73 to 74-75 it is shown as jointly cultivated byVithaldas and his daughter Durgadevi. S.No.12 of Babulgaon isshown as cultivated during 1974-75 by Vithaldas alongwith hisdaughter Shakultala. The crop statement for the other years havenot been filed by the appellant.It is ludicrous to think that theseminor daughters would possess the necessary where withal tocultivate the land independently. I have therefore no hesitationto hold that the appellant Vithaldas was holding S.No.12 area 17acres 23 Gs and S.No.14 area 14 As 6 Gs of Babulgaon, shown A

B

C

D

E

F

G

H

Ato have been transferred to his daughters Shakuntala andDurgadevi.”

THE ORDER DATED 23.11.2016 PASSED BY THIS COURTAND ADDITIONAL AFFIDAVIT BY THE SON OFVITHALDAS

B93. On 23.11.2016, this Court passed an order which reads asfollows:

“The legal representatives of the deceased appellant¬ VithaldasJagannath Khatri appear to have placed reliance upon a documentpurporting to be a deed of partition of certain agricultural land in supportCof their contention that they had acquired ownership over the disputedland long before the effective date under the provisions of theMaharashtra Agricultural Land (Ceilings on Holdings) Act, 1961. Whilea copy of the said document purporting to be a partition deed is on recordand has been noticed by the authorities below it is not clear whetherthe alleged acquisition 2 of rights under the said document was everDreported to revenue authorities in terms of Sections 148 and 149 of theMaharashtra Land Revenue Code, 1966. It is also not clear as towhether the revenue authorities had upon receipt of such a report takenany steps to acknowledge the creation of the alleged rights in favourof the legal representatives of the deceased appellant. The orders underEchallenge on the contrary suggest that the ownership of the land hadcontinued in the name of the deceased in the revenue records despitethe alleged execution of the partition deed. Confronted with this positionMs. Indu Malhotra, learned senior counsel appearing for the appellantsseeks a short adjournment to take instruction and place on recordmaterial to suggest that the execution of the so-called partition deedFand the acquisition of the rights thereunder by her clients was dulyreported and accepted in appropriate proceedings envisaged under theland revenue code mentioned above. Copies of the record of rights inrelation to land in question with effect from 31.09.1970 till 02.10.1975shall also be placed on record. Needful shall be done within six weeks.”

G 94. Pursuant to the same an additional affidavit by son of LateVithaldas has been filed on 09.03.2017. Thereunder it is inter alia statedthat on an application to the concerned office, reply was received tothe effect that with regard to the field Survey No.12 and 14 of villageBabulgaon as well as field Survey No.64 village Mangrul, that therecord from 1970 to 1975 is in a mutilated condition and the mutationHregister for the period from 1964 to 1978 is not traceable.

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATEOF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.]

“For Village Mangrul, the crop statement is not available for theperiod 1970-1972, and for Village Babhulgaon crop statement isnot available for the period 1970-1973 for Survey No.14, whilecrop statement is not available for Survey No.12 for the period1971-1972.”

95. It is stated further that the name of the son is recorded inthe Crop Register for the period 1972 to 1975 as occupant. Certaincopies of the Record of Rights from the register of crop prepared underRule 29 of the Maharashtra Land Revenue Record of Rights andRegisters (Preparation and Maintenance Rules)1971 have beenproduced. They show inter alia as follows:

Therein, in the year 1973-74 under the column ‘existing occupant’,as regards Survey No.14 is concerned, for a total area of 35 acres and12 guntas it is Vithaldas who is shown as the occupant. Durga Devi isalso shown as occupant as against Sy.No.14 in respect of 14.29 H.Bela Devi, the youngest daughter is also shown as occupant. Both areshown as minor and their guardian, the grandfather. The same is theposition in regard to the year 1974-1975. Still further it is shown likewisefor the year 1975-1976. The same position is shown both before andafter the consolidation proceedings in regard to Survey No.12. For theyear 1972-1973 in regard to 17 acres and 23 guntas.,Shankuntala Bai(the eldest daughter) was shown under the head ‘Name of the existingoccupant’ along with Vithaldas Jagannath S.O.. Even in the CropRegister 1973-1974, the name of the occupant is shown as VithaldasJagannath for minor Shakuntala Bai Vithaldas. It is to be noted thatgoing by the date of birth of Shakuntala Bai as noted by the Tribunalas on 03.11.1955, she became major on 03.11.1973, Still she is shownas a minor and her father is shown as occupant on her behalf.

In regard to 17 acres and 23 guntas for 1974-1975 under thename of existing occupant, the following is noticed-

1. Vithaldas Jagannath,

2. Shakuntala Bai Vithaldas through the guardian Jagannath.

Two features may be noted.

96. The first occupant is shown as the father. This is despitethe fact that on 03.11.1973 itself Shakuntala Bai had even already A

B

C

DEF

G

H

Abecome a major. For the earlier year it has been noticed that the entrywas Vithaldas for Shakuntala Bai. For the year 1974-1975, the nextfeature to be noticed is Shakuntala Bai is to shown along with her fatheras an occupant. However, she is so shown through her guardian whois shown as her grandfather. Taking the matter forward for the nextyear namely 1975-1976, the occupant is shown as Shakuntala Bai RamaBPrasad through guardian Jagannath. It is to be noted that ShakuntalaBai had much earlier become major. The name of Vithaldas which wasthere in the earlier year is seen removed.

97. In the Record of Rights, produced under the law relating toconsolidation in Survey No.12, Shakuntala Bai is shown as minor throughCher grandfather both before and after the proceedings were conducted.In this connection as noticed by the Tribunal crops statements for theother years were not filed. They were not produced in the High Courtalso. No evidence has been tendered though it was open to adduceevidence as is permitted under the Act.D98. I would think on a conspectus of the material, I feel reinforcedthat the partition was indeed not only unnatural but it was not intendedto have effect.

THE EFFECT OF THE CROSS OBJECTION BEING

ALLOWED IN THE ABSENCE OF THE TWO ELDEREDAUGHTERS TO WHOM THE PROPERTY WAS ALLOTTEDIN THE PARTITION.

99. It is undoubtedly true that the appeal before the Tribunalwas filed by Late Vithaldas, his wife, son and youngest daughter. It isFalso true that there was no occasion for the elder daughters to challengethe order passed as the properties allotted to them in the partition deeddated 31.1.1970 stood excluded. It is in such an appeal that theGovernment filed a cross objection. Undoubtedly, the cross objectionwas maintainable both under the express provisions of Section 33 ofthe Act as also under Order 41 Rule 22 CPC which was also madeGapplicable under Section 33 of the Act. In law it is true that if a crossobjection is maintained, the person affected by an order in the crossobjection must be on the party array. If he is not on the party array, itis incumbent upon the respondent in the appeal who seeks to maintaina cross objection against a non-party to implead such person as a party.HThis is a matter on which I need not dwell further.

100. The question which would however arise is, as is sought tobe contended by the respondent-State the effect of the elder daughtersnot challenging the order of the Tribunal. The order of the Tribunal waschallenged by Vithaldas and his wife only by filing a writ petition beforethe High Court. Appellants 3 and 4 in the appeal before the Tribunalwere made respondents in such writ petition. It is true that elderdaughters were also made respondents.

101. Shri Vithaldas and his wife did not prosecute the writ petitionalso as representatives of the elder daughters. At least the writ petitionis not produced to support such a case. It is necessary to notice thatthe finding regarding the partition deed and gift deed by the Tribunalimpacted both Vithaldas and his wife on the one hand and also the eldersdaughters on the other hand [the latter as regards the partition deed].The Ceiling Account of the family unit was determined taking intoconsideration the 31 and odd acres allotted to the elder daughters.Vithaldas would been affected in two different capacities. One as headof the family unit and the other as father of the elder daughters.

102. It is relevant to notice that under the Hindu Minority andGuardianship Act, 1956 Section 6 declares who is to be the naturalguardian of a Hindu minor. It reads as under:

“6. Natural guardians of a Hindu minor.—The natural guardianof a Hindu minor, in respect of the minor’s person as well asinrespect of the minor’s property (excluding his or her undividedinterest in joint family property), are—

—(a) in the case of a boy or an unmarried girlthe father, andafter him, the mother: provided that the custody of a minor whohas not completed the age of five years shall ordinarily be withthe mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;

(c) in the case of a married girl—the husband: Provided that noperson shall be entitled to act as the natural guardian of a minorunder the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world bybecoming a hermit (vanaprastha) or an ascetic (yati or A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

A

sanyasi). Explanation.—In this section, the expression“father” and “mother” do not include a step-father and astep-mother.”

(Emphasis supplied)

103. A perusal of Section 6 of the Hindu Minority andBGuardianship Act would show that in the case of unmarried girl, thefather and after the father the mother would be the natural guardian.This is in respect of both the person of the minorand the property ofthe minor. When the writ petition was filed, the eldest daughter wasclearly major and married. Durga Devi was also a major.

C

104. The State would contend the partition dated 31.1.1970 wasa sham and Vithaldas continued to hold the property. It is not unnaturalthat he would challenge the inclusion of such property in the ceilingaccount as property of the family unit on the basis that he continued tobe the holder. Allowing the cross objection by the Tribunal if viewed inDthis perspective did affect Vithaldas. He could indeed question theinclusion of the lands allotted to his elder daughters in the account ofthe family unit. Vithaldas could support the partition deed but he couldnot challenge the order of the Tribunal allowing the cross objection onthe ground that the cross objection was allowed without giving anEopportunity to his daughters. Undoubtedly, Vithaldas was the firstappellant before the Tribunal. He along with other appellants thereinwere heard by the Tribunal as parties before allowing the cross objectionin relation to the partition.The ground that the cross objection wasallowed without an opportunity to his elder daughters was not availableFto Vithaldas or his wife. Again, I would reiterate that the writ petitionhas been filed only by Vithaldas and his wife. Though the elder daughterswere majors, they have not challenged the order of the Tribunal.Maybe it is true that they were respondents in the writ petition filed bytheir parents. Even after the learned Single Judge dismissed the writpetition, upholding the order of the Tribunal, no appeal was filed by theGelder daughters.

105. If indeed the elder daughters had acquired possession andrights under the partition deed in respect of an extent of more than 31and odd acres of land in between themselves, it passes one’sHcomprehension that they would not challenge the order which purported to deprive them of their rights. This conduct on the part of the partieswould appear to lend assurance to the case of the State that the partitionwas not a genuine transaction but a sham and the property continuedwith Vithaldas in which case it would be property held by Vithaldaseven on the commencement date namely 2.10.1975 rendering it liableto be included in the account of the family unit. He accordinglychallenged the order of the Tribunal along with his wife who wasseparately aggrieved by the inclusion of the property found gifted toher.

106. It is to be noted that a writ petition is not a partition suit.In a partition suit, apart from the plaintiff, the defendants also stand inthe shoes of a plaintiff. Vithaldas passed away even when the appealwas pending in the High Court. Appeal was filed before this Courtoriginally as a special leave petition. In the Special Leave Petition, it isshown Vithaldas(now deceased)through LRs and the petitioners namesare shown. No doubt their position as respondents in the High Court isalso shown. The elder daughters were petitioner No.1 and 2 in thespecial leave petition and upon leave being granted, they are in the partyarray as appellants 1 and 2. But they are before this Court only aslegal representatives of Vithaldas who instituted the writ petition andappeal along with his wife. Be it noted that one out of the twoappellants in the High Court, namely, Vithaldas passed away. His wifehas not pursued the matter before this Court and she is a proformarespondent No.4 in this appeal. The appeal is prosecuted by the presentappellants in their capacity as legal representatives of Vithaldas.Contentions which were available to Vithaldas alone, would thereforebe available to them. In this Court, I may refer to the judgment of thisCourt reported in Jagdish Chander Chatterjee and Othersv. Shri SriKishan and another26, reads as follows:

“10. Under sub-clause (ii) of Rule 4 of Order XXII, CivilProcedure Code any person so made a party as a legalrepresentative of the deceased, respondent was entitled to makeany defence appropriate to his character as legal representativeof the deceased-respondent. In other words, the heirs and thelegal representatives could urge all contentions which the AB

C

D

E

F

G

Adeceased could have urged except only those which werepersonal to the deceased. Indeed this does not prevent the legalrepresentatives from setting up also their own independent title,in which case there could be no objection to the court impleadingthem not merely as the legal representatives of the deceased butBalso in their personal capacity avoiding thereby a separate suitfor a decision on the independent title”.

107. As has been noted by me, the contention that the Tribunalshould not have allowed the cross objection without the elder daughtersCon the party array was not available to Vitahaldas. If that is so, hislegal representatives namely, the appellants cannot take contentionswhich were not available to their predecessor-in-interest.

108. It is true that this is a case where as regards the elderdaughters, they were not parties in the appeal in which the cross-Dobjection was filed.

109. Also, no doubt the elder daughters and others wererespondents in the Writ Petition and Letter Patent Appeal. It may betrue that a respondent and even a person who is not a party can withleave prefer an appeal. But when they have not challenged the orderEof the Tribunal and even the judgment of the learned Single Judge andas the Vithaldas had fully contested the matter and in view of my findingthat the properties allotted to the elder daughters, are liable to be foundheld by Vithaldas, I would not be inclined to interfere, particularly, as Ihave noted above when the perusal of the Special Leave Petition wouldFreveal that Vithaldas (now deceased) through the LRs-the petitionersis shown in the cause title. It must be remembered that the petitionersupon the passing away of Vithaldas during the pendency of the LatterPatent Appeal were recorded as his legal representatives.

110. I would also, at any rate, in this regard, in this case invokeGthe principles laid down in Taherakhatoon (D) By Lrs.v. SalambinMohammad27 and refuse to interfere.

111. I would think, therefore, the appeal must fail and it standsdismissed.H27 1999(2) SCC 635

VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMAv. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.

O R D E R

In view of difference of opinions and the distinguishing judgments(Hon’ble Sanjay Kishan Kaul, J. allowed the appeal and Hon’bleK.M.Joseph, J. dismissed the appeal), the matter be placed beforeHon’ble the Chief Justice of India for referring the matter to a LargerBench.

Devika Gujral

Matter referred to larger Bench

A

B

C

D

E

F

G

H