# VITHALDAS JAGANNATH KHATRI (D) THROUGH SHAKUNTALA ALIAS SUSHMA & ORS v. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS

- **Citation:** [2019] 11 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 2019-08-29
- **Case number:** Civil Appeal No.6006 of 2009
- **Bench:** K. M. Joseph, Sanjay Kishan Kaul
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vithaldas-jagannath-khatri-d-through-shakuntala-alias-sushma-ors-v-the-state-of-33122
- **Pages:** 93

## Headnote

Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961: ss.8, 10, 11, 21, 44B - Ceiling limits - Partition Deed dated
31.01.1970 (duly registered on 1.07.1970) executed between
appellant, his wife, minor son and three minor daughters in respect
of agricultural land of HUF - On 19.11.1976, 59 acres and 35
guntas of land of appellant declared surplus by SDO - Appeal
filed by appellant, his wife, minor son and elder daughter - Two
other minor daughters did not appeal being satisfied with the order
of SDO as no part of land that devolved upon them by means of
partition deed was declared surplus - State filed cross objections
challenging the exclusion of land of the two daughters but did not
implead them - Appellate authority allowed the objections holding
that the partition deed though before the cut off date was against
the principles of Hindu Law to the extent that it gave share to minor
daughters in ancestral land - Whether the partition deed registered
prior to cut-off date of 26.09.1970 was against the principles of
Hindu Law to the extent it gave a share to minor daughters in the
land and on that basis, was partition deed of no effect in law -
Held (per Sanjay Kishan Kaul, J.): The relevant date of 26.9.1970
and 2.10.1975 giving window of five years for the State to take
action and prevent any dubious transaction during this period of
time cannot be expanded to an unlimited prior period of time - In
the instant case, the Partition Deed was registered prior to the cutoff date of 26.09.1970 - Execution of Partition Deed which has
the effect of a gift would not nullify the effect of the deed as the
provision made out for the daughters out of ancestral property
would be in compliance of the pious obligation - Hindu Law
provides for provision for marriage of unmarried daughter out of
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ancestral property - Therefore, view of SDO regarding exclusion
of land of two elder daughters for determining surplus land was
correct and is restored - (Per K.M. Joseph, J.): Collector, when in
the course of inquiry under s.18 of the Act, has before it, materials
to show that an ostensible transfer or a partition is nothing but a
sham and a person or a member of the family continues to hold
the land as on the commencement day, it would be well within his
powers to act as per the mandate of the Act and include the land
for the purpose of calculating the ceiling limit - Collector is
endowed with the powers of the civil court in the matter of both
summoning and enforcing attendance of any person - He has
power also to compel production of any document - In a sham
transaction, be it sale or partition, though it has all the trappings
of a transfer or a partition and it may be registered as such, in
effect, the transferor continues to be the owner - In the instant
case, the father continued to be the owner of the land as title had
not passed to the two daughters by a legally valid instrument -
Even crop statement of relevant time also showed the cultivation
by father alone or along with daughters - The Partition was
unnatural for the reason that under the extant Hindu Law,
daughters were not entitled to a share and women were not entitled
to partition - Thus the Partition was indeed not only unnatural
but it was not intended to have effect - The property continued
with the father in which case it would be property held by him even
on the commencement date rendering it liable to be included in the
account of the family unit - Held: In view of difference of opinion,
the matter placed before the Chief Justice of India for referring
the matter to larger bench - Reference to larger bench.
Referring the matter to larger Bench in view of difference
of opinion, the Court
HELD:
PER SANJAY KISHAN KAUL, J.
1. Deemed Fiction:
1.1 The legislation in question is a beneficial piece of
legislation and, indeed, must be given the widest amplitude, the
object being to distribut

## Text

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913
 VITHALDAS JAGANNATH KHATRI (D)
THROUGH SHAKUNTALA ALIAS SUSHMA & ORS.
v.
THE STATE OF MAHARASHTRA REVENUE
AND FOREST DEPARTMENT & ORS.
(Civil Appeal No.6006 of 2009)
AUGUST 29, 2019
[K. M. JOSEPH AND SANJAY KISHAN KAUL, JJ.]
Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961: ss.8, 10, 11, 21, 44B - Ceiling limits - Partition Deed dated
31.01.1970 (duly registered on 1.07.1970) executed between
appellant, his wife, minor son and three minor daughters in respect
of agricultural land of HUF - On 19.11.1976, 59 acres and 35
guntas of land of appellant declared surplus by SDO - Appeal
filed by appellant, his wife, minor son and elder daughter - Two
other minor daughters did not appeal being satisfied with the order
of SDO as no part of land that devolved upon them by means of
partition deed was declared surplus - State filed cross objections
challenging the exclusion of land of the two daughters but did not
implead them - Appellate authority allowed the objections holding
that the partition deed though before the cut off date was against
the principles of Hindu Law to the extent that it gave share to minor
daughters in ancestral land - Whether the partition deed registered
prior to cut-off date of 26.09.1970 was against the principles of
Hindu Law to the extent it gave a share to minor daughters in the
land and on that basis, was partition deed of no effect in law -
Held (per Sanjay Kishan Kaul, J.): The relevant date of 26.9.1970
and 2.10.1975 giving window of five years for the State to take
action and prevent any dubious transaction during this period of
time cannot be expanded to an unlimited prior period of time - In
the instant case, the Partition Deed was registered prior to the cutoff date of 26.09.1970 - Execution of Partition Deed which has
the effect of a gift would not nullify the effect of the deed as the
provision made out for the daughters out of ancestral property
would be in compliance of the pious obligation - Hindu Law
provides for provision for marriage of unmarried daughter out of
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ancestral property - Therefore, view of SDO regarding exclusion
of land of two elder daughters for determining surplus land was
correct and is restored - (Per K.M. Joseph, J.): Collector, when in
the course of inquiry under s.18 of the Act, has before it, materials
to show that an ostensible transfer or a partition is nothing but a
sham and a person or a member of the family continues to hold
the land as on the commencement day, it would be well within his
powers to act as per the mandate of the Act and include the land
for the purpose of calculating the ceiling limit - Collector is
endowed with the powers of the civil court in the matter of both
summoning and enforcing attendance of any person - He has
power also to compel production of any document - In a sham
transaction, be it sale or partition, though it has all the trappings
of a transfer or a partition and it may be registered as such, in
effect, the transferor continues to be the owner - In the instant
case, the father continued to be the owner of the land as title had
not passed to the two daughters by a legally valid instrument -
Even crop statement of relevant time also showed the cultivation
by father alone or along with daughters - The Partition was
unnatural for the reason that under the extant Hindu Law,
daughters were not entitled to a share and women were not entitled
to partition - Thus the Partition was indeed not only unnatural
but it was not intended to have effect - The property continued
with the father in which case it would be property held by him even
on the commencement date rendering it liable to be included in the
account of the family unit - Held: In view of difference of opinion,
the matter placed before the Chief Justice of India for referring
the matter to larger bench - Reference to larger bench.
Referring the matter to larger Bench in view of difference
of opinion, the Court
HELD:
PER SANJAY KISHAN KAUL, J.
1. Deemed Fiction:
1.1 The legislation in question is a beneficial piece of
legislation and, indeed, must be given the widest amplitude, the
object being to distribute land among the landless. In giving
wider amplitude to such legislation, the Court should not
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interpret the words of the statute beyond its plain reading
reflecting the intent of the legislation. The provisions have to
be read, to see whether there is any ambiguity, requiring any
further aid for construction of those sections, or whether they
are explicit and clear in their meaning. On a reading of the
provisions of Chapter III, including Sections 8, 10 & 11 of the
said Act, there is no ambiguity as would require any aid to
construct the meaning of those Sections. [Paras 19 and 20] [938B-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 which
the provisions would come into force. However, the amendment
of 1972 created a deemed fiction by inserting the provision for
setting at naught transactions 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 about five years would also be hit by
the provisions of the said Act insofar as the determination of
surplus land is concerned. In the wisdom of the legislature, the
window of five years is provided as sufficient for scrutinizing
transactions which could be called "dubious and indirect
methods" to evade the result of the said Act. This is also
reinforced by the provisions of Section 18, dealing with
determination of the surplus area of land. The effect of Section
18(b) is that any land, even if it is obtained by partition or other
transfer, after the date of 26.9.1970 would be included for the
purposes of calculation of surplus land, as land of the person who
so transferred the same. The second Explanation to sub-section
(1) of Section 10 also provides that documents evidencing such
transfer even before 26.9.1970 would not be exempted if they
are not registered on or before that date, or even if they are
registered after that date, they are not presented for registration
on or before that date. Thus, the possibility of evading the land
ceiling limits by creating documents on a back date and
subsequently producing them for registration is obviated.
[Paras 21-23] [938-E-F; 939-A-B, E-F]
VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA
v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.
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Bengal 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 which
it is created and should not be extended beyond that legitimate
field. It was held in Mancheri case, "a fiction cannot be extended
by the court on analogy or by addition or deleting words not
contemplated by the legislature." Thus, this being the manner
of interpreting a provision for deeming fiction, the relevant dates
provided, of 26.9.1970 and 2.10.1975, giving a window of five
years for the State to take action and prevent any dubious
transaction during this period of time, cannot be expanded
to 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 :
[2002] 2 SCR 512 ; Uttar Chand v. State of
Maharashtra, (1980) 2 SCC 292 : [1980] 2 SCR 1048
- relied on.
2. The appellate authority allowing the cross-objections:
The order was passed by the competent authority, being
the SDO, insofar as the two elder daughters are concerned, held
in their favour as 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 they so file an appeal. Other members of
the family, who filed the appeal, did not implead them as parties.
Once again, naturally so, as they would not 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 favour
of the two elder daughters, they were necessary parties to those
proceedings. It is no answer to say that since the effect of the
land ceiling would be to restrict the area of their father, VJK, it
is for VJK to see how he can benefit his daughters. This
fundamental defect cannot be cured in the subsequent
proceedings, as the right of appeal is a statutory right and an
important one. This view is reinforced by a catena of judicial
pronouncements. It has been held that the Code of Civil
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Procedure, 1908 does not contemplate filing of cross-objections
against a party who is not a party to the appeal. In case such
objections have to be filed two distinct operations are necessary.
He must implead the persons as parties qua whom he intends
to file cross-objections then he must file the memorandum of
cross-objections. The position would be no different qua a
judicial or quasi-judicial authority as a party to be effected must
get a right of hearing. Thus, for this reason also the crossobjection could not have disturbed the status of the two elder
daughters. [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 AIR
1926 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 gifting
of a reasonable part of the ancestral property, in favour of
daughters, for marriage purposes, was held to be valid, and in
accordance with Mitakshara law. Thus, legal view is very clear
that a provision for marriage of unmarried daughters can be
made out of ancestral property. Such provision can be made
before, at the time, or even after the marriage. The provision
is being made out of pious obligation, though the 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 get a share on partition of ancestral
property, including the right to claim partition. This change was
brought about in Maharashtra in 1994, itself. [Para 33, 36] [945F; 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 ; *Guramma
Bhratar Chanbasappa Deshmukh v. Mallappa
Chanbasappa & Ors. [1964] 4 SCR 497 - relied on.
Annamalai Ammal v. Sundarathammal & Ors. AIR 1953
Mad 404 - approved.
VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA
v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.
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3.2 In the instant case, by way of Partition Deed, a
provision was made for education and marriage of daughters. In
the context of where the society is today, such an endeavour
should be commended as salutary, rather than be frowned upon.
There is no doubt that there was nothing prohibiting such a
provision from being made. If the law permits so, it can hardly
be called fraudulent. Thus, the very premise of allowing the
cross-objection has no sustenance in law. Further, the two elder
daughters, whose rights have been debated actually, even
attained majority before the commencement date, i.e., they were
major unmarried daughters on the date when the amendments
came into force. They were, thus, not included even in the family
unit in terms of the definition contained under Section 4. [Paras
37, 38] [946-H; 947-A-C]
3.3 None of the members of the family ever sought to
assail or challenge the deed. It was with the consensus of the
family, apart from the legality of the same. Too much importance
should not be attached to the nomenclature of a document and
one can look behind the façade of the document to decipher the
true nature of the transaction. In the given facts of the case it
is not in dispute that the Deed was a registered document.
Thus, even if one construes it as a partition-cum-gift deed, it
would 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 Law
permits the making of a provision for the daughter for her
marriage, the execution of a partition deed, which has the effect
of such a gift would not nullify the effect of the deed. This is so
as a provision made for the daughter out of the ancestral
property would be in compliance of the pious obligation. These
findings, thus, lead to the conclusion that view of the SDO
regarding the land of the two elder daughters, is the correct view.
[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 -
relied on.
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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. Union
of India AIR 1963 SC 1241: [1964] SCR 371 -
referred to.
PER K. M. JOSEPH, J. (Dissenting)
1. POWER OF AUTHORITIES UNDER THE ACT OVER
TRANSACTION PRIOR TO 26.09.1970
1.1 The word "transfer" and "partition" as employed in
Section 10 and 11 of the Act must be understood as meaning a
transfer and a partition 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 rights of the previous owner
and vesting of rights in the transferee. The legislative intention
was that such transfers, which otherwise would pass muster as
genuine transactions and, therefore, would have the effect of
defeating the object of the Act as contained in particular in
Section 3 and the Chapter relating to distribution of surplus land
should be rendered ineffective. The same is the position in
respect of the partition under Section 11 of the Act. Even if there
is a genuine partition by which shares are in fact allotted to the
parties and the parties enjoy the properties as separate owners
of what was previously joint ownership, their rights will be
subsumed and overwhelmed by the laudable object underlying
Section 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 Officer
must find out what is the total area of land held by the holder
on the commencement date. Clause (1) of Section 18 of the Act
also contemplates that the Collector may take into consideration
any other matter which in his opinion is necessary for calculating
the ceiling area inter alia. Section 3 of the Act read in conjunction
with Section 18(c) and (l), inter alia, establishes that the Collector
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has power and it becomes his duty, in fact, to ascertain what is
the area held on the appointed day, viz., 02.10.1975. The
Legislature has defined the words "to hold" means, "to be
lawfully in actual possession of land as owner or as tenant". Word
"owner" is further defined to mean, "in relation to any land
includes a person holding the land as occupant, superior holder
as defined in the Code, lessee of Government, as it is commonly
understood". If the person is holding the land as occupant, he
would be an owner. Therefore, if a person is in possession as
an occupant as on the appointed day, the extent of land so held
by him, would be considered for the purpose of calculating the
ceiling limit. Equally, if the person is in possession as lessee of
the Government, he would incur the wrath of Section 3 of the
Act, should he have land in excess of the ceiling limit inclusive
of the land which he holds as lessee of the Government. [Para
55] [973-H; 974-A-E]
1.3 The Collector, therefore, is duty bound in the course
of the inquiry to enquire and ascertain as to what exactly is the
holding (as defined in the Act) as on the commencement day. In
the matter of gleaning the meaning of a Statute and demystifying
the words of a Statute and discovering the intention of the
legislation, the court must presume that the Legislature has
taken into consideration the felt necessities of the times. It will
further assume that the Legislature was aware of the law as it
exists and not begin with assumption that the Legislature is
ignorant of the opinions expressed by the courts on points of
law. [Para 56] [974-F-H]
Sree Meenakshi Mills Ltd., Madurai v. Commissioner
of Income Tax, Madras AIR 1957 SC 49 : [1956] SCR
691 ; Kalwa Devadattam and others v. The Union of
India and others AIR 1964 SC 880 : [1964] SCR 191
- referred to.
2.1 In a sham transaction, be it a sale or a partition, though
it has all the trappings of a transfer or a partition and it may be
registered as such, in effect, the transferor continues to be the
owner. The person who was the previous owner, would, in the
case of the partition which is sham, continue to be the owner. A
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clever camouflage or a document ingenuously disguised as a sale
or a partition, cannot be permitted to defeat the intention of the
Legislature. If the surrounding circumstances and the actual
reality behind the transaction is objectively probed and it is
established that the transferor or the previous owner, as the case
may be, in the case of a transfer or a partition, respectively,
continued to hold the property as such on the appointed day, it
must be ignored. [Para 59] [976-G-H; 977-A]
2.2 The interpretation that the Legislature knows the
existing law and that the Legislature does not waste words and
further 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 in
the course of an inquiry under Section 18 of the Act, has before
it, materials to show that an ostensible transfer or a partition is
nothing but a sham and a person or a member of the family
continues to hold the land as on the commencement day, it
would be well within his powers to act as per the mandate of
the Act and include the land for the purpose of calculating the
ceiling limit. [Para 60] [977-C-E]
2.3 The Collector is endowed with the powers of the civil
court in the matter of both summoning and enforcing attendance
of any person. The person summoned can be examined on oath.
He has power also to compel production of any document. For
the purpose of determining whether a document is a collusive,
a fraudulent or a sham transaction, it would indeed be argued
that the Authority to so decide must be in a position to consider
relevant evidence in the form of deposition of witnesses as also
evaluate documentary evidence which may throw light on the
matter. Such powers are expressly conferred on the Collector
and the powers are the same as that which the civil court enjoys
in this regard. [Para 61] [977-G-H; 978-A-B]
3.1 Another argument raised by the appellants is that the
partition cannot be impeached on the ground that properties are
allotted to the daughters when under the prevalent law the
daughters did not have any right to a share. If at all, anybody
VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA
v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT.
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could impeach the said partition, it would be only the affected
parties, viz., the persons who are legitimately entitled to a share
in partition. It is one thing to say that a sharer whose shares
may be affected, could question it in the appropriate forum. It
is, however, a far cry from maintaining that the Competent
Authority under the Act, when it has before it, evidence which
points to the transaction being a sham or collusive affair, is
disabled from finding it to be so. If one proceeds on the basis
that the transaction was sham, the persons who would benefit
from the sham transaction would be the other sharers. In the
facts of this case, viz., the father, the wife and the son. This is
for the reason that it is implicit in the finding that in the
transaction of sham that there is no effective transfer. The
properties would continue to be held by the father. The daughters
would not get any effective share. The other sharers, who would
ordinarily have challenged the transaction, viz., the wife and the
son, would be themselves beneficiaries under the transaction and
they cannot be expected to challenge the transaction. Acceptance
of the argument of the appellants would result in parties
defeating the Act by setting up a pretense and wearing a cloak
and this cannot be permitted. [Paras 66-67] [979-G; 980-B-E]
3.2 Thus, a transfer or a partition entered into before
26.09.1970, if it is not genuine and is collusive or is a sham
transaction, can, in a given case, on materials being present, be
found to be so by the Authority under the Act; What is
contemplated under Sections 10 and 11 of the Act read with
Section 8, undoubtedly, is a transfer as defined in Section 8, being
a genuine transaction. A fraudulent transaction or a sham
transaction if entered into before 26.09.1970, would incur the
wrath of Section (3), and a farce of a partition likewise, bringing
about a mock division of property among the sharers, would also
incur wrath of Section (3) of the Act. No doubt, even if the
transaction is a sham transaction, be it a transfer or a partition,
it would incur the wrath of Sections 10 and 11 and it would not
be necessary to justify the invalidity with any materials if entered
into or effected after 26.09.1970. 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
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and circumstances brought out, which persuades Authorities to
hold that it is collusive or a sham transaction and the property
did not change the hands, the property would not be liable to
be treated as held by the previous owner as on the
commencement day and included in the account despite the
purported transfer or partition. [Para 68] [980-E-H; 981-A-B]
4. WHETHER THE PARTITION ALLOTTING SHARES TO
THE DAUGHTERS WAS UNNATURAL AND SHAM
4.1 The Partition was unnatural for the reason that under
the extant Hindu Law, daughters were not entitled to a share.
Another reason to hold the partition unnatural is that the wife
of VJK was entitled in law upon a partition to a share but she is
not given any share. The further finding is that VJK continued
to be in effective cultivation of the land, and in this regard, the
record 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 enforce
partition. 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 Law
to 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 Rao
Deshmukh and others AIR 1985 SC 716 : [1985] 3
SCR 358 - referred to.
Mayne's Hindu law and usage - referred to
5. THE LAW RELATING TO GIFTS BY A HINDU TO HIS
DAUGHTER
5.1 A Joint Hindu Family would consist of a large number
of persons. A Joint Hindu Family could, however, be understood
to be a narrower body of individuals that constitutes a
coparcenary. 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. A
partition involves separate enjoyment and what was previously
jointly held property. A wife of a Hindu while not a coparcener
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was one such person who was entitled to a share in the partition.
But even when a partition took place, the daughter of a person
was not a person who was entitled to any share.[Para 80] [991D-E]
Annivillah Sundaramya v. Cherla Seethamma and
others 1911 (21) MLJ 695 ; Pugaria Vettoramal and
another v. Vettor Gounder, Minor, by his next friend
and mother Poochammal and another 1912 (22) MLJ
321 - approved.
Annamalai Ammal v. Sundarathammal and Others AIR
1953 Madras 404 ; Guramma Bhratar Chanbasappa
Deshmukh and others v. Mallappa Chanbasappa and
another AIR 1964 SC 510 : [1964] SCR 497 -
referred to.
5.2 The terms of the partition deed have been set out.
The first thing that is a striking feature in the partition deed is
the exclusion of the wife of VJK. No doubt, she was gifted 60
and odd acres by gift deed dated 20.1.1955. However, when the
family partition took place, her right may continue. If the wife
under the Hindu Law, when a partition is effected, 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 is given 30
acres. Most importantly the daughters who had no right are seen
given a total of 45 acres and 35 acres. The daughters together
got 11⁄2 times the share of the son. Any property, which went to
the wife, would have been liable to be included in the account
of the family for the purpose of determining the ceiling limit. It
is no doubt true that there was no concept of family unit at that
time but family as a person was subject to the ceiling limit. The
elder daughters were 14 years and 11 years, respectively. The
son, in fact, was merely 4 years old and the youngest daughter
8 years. The statement in the partition deed that the parties have
been using their properties jointly itself, is suspect as none of
the daughters had any legal right in the properties. Thus, the
circumstances which stand against the document namely the
partition being a genuine transaction are: The age of the
children being 4, 8, 11 and 14 years; the wife of the VJK not
being given any share; the children being represented by their
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grandfather as a guardian when the parents are alive. Allotment
of shares to the daughters when daughters did not have any right
to share in the partition of a Hindu Undivided Family at that point
of time. Out of a total of 106 acres, 45 acres and 35 acres can
by no stretch of imagination be treated as 'small' or 'reasonable'.
While it may be true that after 1994, a Hindu daughter in
Maharashtra had been recognized as a coparcener by Section
29A of the Hindu Succession Act, 1956 and entitled to a share
as such, such right did not exist in 1970 when the partition was
entered into. [Para 83] [993-D-F-H; 994-A-E]
6. No doubt, it was open to a Hindu to make a gift of a
small portion or a reasonable portion to his daughter. In fact,
there is a line of thought that though styled as partition, it could
be held to be a gift in the absence of a pre-existing right. The
question in this case is not whether a gift could have been validly
made or not by VJK to his elder daughters. No case of it being
a gift is set up before the Tribunal or the High Court nor before
this Court. Definition of 'member of family' under the Act
included dependent daughters. There is no case that the property
was the separate property of VJK. There can no dispute that
the property was an ancestral property which he acquired in
terms of the earlier partition between him and his father. [Paras
84-85, 88] [994-E-H; 996-D]
Potti Lakshmi Perumallu v. Potti Krishnavenamma AIR
1965 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 and
others (1981) KLT 780 - referred to.
7.1 The Tribunal noted that the elder daughters were 14
and 121⁄2 years of age on the date of the partition in 1970. VJK
continued to be the owner as the title has not passed by a legally
valid instrument. It is stated further that the name of the son is
recorded in the Crop Register for the period 1972 to 1975 as
occupant. The eldest daughter became major on 03.11.1973, still
she is shown as a minor and her father is shown as occupant on
her behalf. For the year 1974-1975, the next feature to be
noticed is eldest daughter is to shown along with her father as
an occupant. However, she is so shown through her guardian
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who is shown as her grandfather. For the year 1975-1976, she
is shown as occupant through guardian grandfather. She had
much earlier become major. The name of VJK which was there
in the earlier year is seen removed. [Paras 92, 95, 96] [997-DE; 999-B; 1000-B]
7.2 It is undoubtedly true that the appeal before the
Tribunal was filed by VJK, his wife, son and youngest daughter.
There was no occasion for the elder daughters to challenge the
order passed as the properties allotted to them in the partition
deed dated 31.1.1970 stood excluded. It is in such an appeal that
the Government filed a cross objection. Undoubtedly, the cross
objection was maintainable both under the express provisions
of Section 33 of the Act as also under Order 41 Rule 22 CPC
which was also made applicable under Section 33 of the Act. In
law it is true that if a cross objection is maintained, the person
affected by an order in the cross objection must be on the party
array. If he is not on the party array, it is incumbent upon the
respondent in the appeal who seeks to maintain a cross objection
against a non-party to implead such person as a party. The order
of the Tribunal was challenged by VJK and his wife only by filing
a writ petition before the High Court. Appellants 3 and 4 in the
appeal before the Tribunal were made respondents in such writ
petition. It is true that elder daughters were also made
respondents. VJK and his wife did not prosecute the writ
petition also as representatives of the elder daughters. The
finding regarding the partition deed and gift deed by the Tribunal
impacted both VJK and his wife on the one hand and also the
elders daughters on the other hand [the latter as regards the
partition deed]. The Ceiling Account of the family unit was
determined taking into consideration the 31 acres allotted to the
elder daughters. VJK would been affected in two different
capacities. One as head of the family unit and the other as father
of 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 Hindu
minor. A perusal of Section 6 of the Hindu Minority and
Guardianship Act would show that in the case of unmarried girl,
the father and after the father the mother would be the natural
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guardian. This is in respect of both the person of the minor and
the property of the minor. When the writ petition was filed, the
eldest daughter was clearly major and married. The second
daughter was also a major. The State would contend the partition
dated 31.1.1970 was a sham and VJK continued to hold the
property. It is not unnatural that he would challenge the inclusion
of such property in the ceiling account as property of the family
unit on the basis that he continued to be the holder. Allowing
the cross objection by the Tribunal if viewed in this perspective
did affect VJK. He could indeed question the inclusion of the
lands allotted to his elder daughters in the account of the family
unit. VJK could support the partition deed but he could not
challenge the order of the Tribunal allowing the cross objection
on the ground that the cross objection was allowed without giving
an opportunity to his daughters. Undoubtedly, VJK was the first
appellant before the Tribunal. He along with other appellants
therein were heard by the Tribunal as parties before allowing
the cross objection in relation to the partition. The ground that
the cross objection was allowed without an opportunity to his
elder daughters was not available to VJK or his wife. Again,
the writ petition has been filed only by VJK and his wife. Though
the elder daughters were majors, they did not challenge the
order of the Tribunal. Maybe it is true that they were
respondents in the writ petition filed by their parents. Even after
the Single Judge dismissed the writ petition, upholding the order
of the Tribunal, no appeal was filed by the elder daughters. [Paras
102-104] [1001-D; 1002-B-G]
8.2 If indeed the elder daughters had acquired possession
and rights under the partition deed in respect of an extent of
more than 31 and odd acres of land in between themselves, it
passes one's comprehension that they would not challenge the
order which purported to deprive them of their rights. This
conduct on the part of the parties would appear to lend
assurance to the case of the State that the partition was not a
genuine transaction but a sham and the property continued with
VJK in which case it would be property held by VJK even on
the commencement date namely 2.10.1975 rendering it liable to
be included in the account of the family unit. He accordingly
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challenged the order of the Tribunal along with his wife who was
separately aggrieved by the inclusion of the property found gifted
to 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 shoes
of a plaintiff. VJK passed away even when the appeal was
pending in the High Court. Appeal was filed before this Court
originally as a special leave petition. In the Special Leave
Petition, it is shown VJK (now deceased) through LRs and the
petitioners names are shown. The elder daughters were
petitioner No.1 and 2 in the special leave petition and upon leave
being granted, they are in the party array as appellants 1 and 2.
But they are before this Court only as legal representatives of
VJK who instituted the writ petition and appeal along with his
wife. Contentions which were available to VJK alone, would
therefore be available to them. [Para 106] [1003-C-F]
Jagdish Chander Chatterjee and Others v. Shri Sri
Kishan and another (1972) 2 SCC 461 : [1973] 1 SCR
850 ; Taherakhatoon (D) By Lrs. v. Salambin
Mohammad (1999) 2 SCC 635 : [1992] 2 SCR 210 -
relied on.
Bhagwandas Heda and others v. State of Maharashtra
and others 1983 Mh. L.J. 825 ; Uttar Chand (Dead)
by Lrs. v. State of Maharashtra and another AIR 1980
SC 806 : [1980] 2 SCR 1048 ; Kundomal Ganga Ram
v. Topamal Chotamal AIR 1953 Allahabd 710 ;
Malireddi Venkatapathi and others v. Malireddi
Veerayya and others AIR 1943 Madras 609 ; Bihar
Immunity 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 his
heirs and legal Representatives AIR 1963 SC 1448 :
[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 of
Income-Tax, Delhi v. S. Teja Singh AIR 1959 SC 352
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: [1959] Suppl. SCR 394 ; Mancheri Puthusseri Ahmed
and Others v. Kuthiravattam Estate Receiver (1996) 6
SCC 185 : [1996] 5 Suppl. SCR 813 - referred to.
Case Law Reference
In the Judgement of Sanjay Kishan Kaul, J
[2007] 2 SCR 990
referred to
Para 19
[1964] SCR 371
referred to
Para 19
[1974] 3 SCR 896
relied on
Para 21
[1955] 2 SCR 603
relied on
Para 21
[1996] 5 Suppl. SCR 813
relied on
Para 25
[2002] 2 SCR 512
relied on
Para 26
[1980] 2 SCR1048
relied on
Para 27
[1963] Suppl. SCR 676
relied on
Para 28
[1964] 4 SCR 497
relied on
Para 28
[2003] 6 Suppl. SCR 605
relied on
Para 32
[1996] 3 SCR 1100
relied on
Para 39
In the Judgement of K.M JOSEPH, J
[1980] 2 SCR 1048
referred to
Para 20
[1955] 2 SCR 603
referred to
Para 25
[1963] Suppl. SCR 699
referred to
Para 25
[1985] 2 Suppl. SCR 556
referred to
Para 25
[2005] 2 SCR 1131
referred to
Para 25
[1959] Suppl. SCR 39
referred to
Para 28
[1996] 5 Suppl. SCR 813
referred to
Para 28
[1956] SCR 691
referred to
Para 57
[1964] SCR 191
referred to
Para 58
[1985] 3 SCR 358
referred to
Para 72
[1964] SCR 497
referred to
Para 79
[1965] SCR 26
referred to
Para 85
[1973] 1 SCR 850
relied on
Para 106
[1992] 2 SCR 210
relied on
Para 106
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6006
of 2009.
From the Judgment and Order dated 27.11.2007 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in LPA No. 3
of 1991
Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta, Ajay
Kumar Talesara, Advs. for the Appellants.
Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Nishant
Sharma, Ms. Deepa Kulkarni, Advs. for the Respondents.
The Judgments/Order of the Court were delivered/passed by
SANJAY KISHAN KAUL, J.
1. The socialistic agenda of the nascently formed Indian State
with large landless poor population was given an impetus inter alia by
a number of State legislations for re-distribution of agricultural land, by
putting a ceiling limit on the same, and then allotting it to the landless
poor. We are concerned here with the Maharashtra Agricultural Lands
(Ceiling on Holdings) Act 1961 (hereinafter referred to as the 'said
Act'). The said Act also went through many amendments top fine tune
different aspects, most importantly the aspect of plugging loopholes,
whereby owners having land in excess of the ceiling limit would
endeavour to somehow re-distribute it among the family to bring it within
the ceiling limit, or at least, to reduce the excess land. The objective of
the said Act can well be deciphered from its preamble, which reads as
under:
"An Act to impose a maximum limit (or ceiling) on the holding
of agricultural land in the State of Maharashtra; to provide for
the acquisition and distribution of land held in excess of such
ceiling; to provide that the lands taken over from undertakings
and the integrity of which is maintained in compact blocks, for
ensuring the full and efficient use of the land for agriculture and
its efficient management through corporations (including a
company) owned or controlled by the State, be granted to such
corporations or company; and for matters connected with the
purposes aforesaid"
2. Chapter III of the said Act made provisions restricting transfers
and acquisitions and the consequences of contraventions.