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

- **Citation:** [2020] 3 S.C.R. 913
- **Court:** Supreme Court of India
- **Decided:** 2020-02-19
- **Case number:** Civil Appeal No. 6006 of 2009
- **Bench:** R. F. Nariman, S. Ravindra Bhat, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vithaldas-jagannath-khatri-dead-through-smt-shakuntala-alias-sushma-ors-v-the-34393
- **Pages:** 30

## 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 since 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: It is clear from the provisions of the 1961 Act that transfers
or partitions of land made in anticipation of or in order to avoid or
defeat the 1972 Amending Act were to be ignored in calculating
ceiling limits - Under s.21, the Collector has to make a declaration
as to entitlement of a person or family unit to hold within the ceiling
area - Further, s.44B excludes pleaders from appearing on behalf
of any party in any of the proceedings under the 1961 Act - This is
for the reason that the Collector has to determine on the facts of
each case, based on returns filed if any, as to what areas are to be
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excluded so far as determination of ceiling of a person or family
unit is concerned - If it were to be held that the Collector could go
into a trial as to genuineness of a particular partition deed, even
though it is before the cut-off date, it would extend the legal fiction
that is limited to transfers and partitions made after the cut-off date;
and secondly, if a period even before the cut -off date can be
considered, it would render the cut-off date otiose, as then in all
cases the Collector could go into whether a particular transfer or
partition has been entered into to avoid the effect of the 1972
Amendment Act, which is an enquiry restricted only to transfers
and partitions which take place on or after 26.09.1970 upto the
commencement date - Also, if the Collector were to substitute himself
as a Civil Court deciding a Civil Suit, it would be absolutely essential
for a person or family unit to engage a pleader of his choice to
argue all the ramifications that his case may have, both in fact and
in law - In fact, a Civil Court alone would have the jurisdiction to
decide a question as to whether a partition deed entered into before
the cut- off date is or is not sham, which would involve a declaration
that the partition be declared void - The 1961 Act, therefore, bars
the jurisdiction of the Civil Court only insofar as transfers and
partitions are entered into on or after 26.09.1970 and before the
commencement date, and not to transfers and partitions that take
place before the cut-off date - This apart, once it is clear that the
daughters are affected by virtue of the partition deed being held to
be non est in law by the appellate tribunal, they ought to have been
made parties to the appeal so that they could have made arguments
in favour of the legal validity of the partition deed - This opportunity
being denied to them is also fatal to the appellate authority's order,
which has, therefore, wrongly been upheld by the High Court -
Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings)
and (Amendment) Act, 1972 - Hindu Law - Partition - Jurisdiction
- Interpretation of statutes -

## Text

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VITHALDAS JAGANNATH KHATRI (DEAD)
THROUGH SMT. SHAKUNTALA ALIAS SUSHMA & ORS.
v.
THE STATE OF MAHARASHTRA REVENUE
AND FOREST DEPARTMENT & ORS.
(Civil Appeal No. 6006 of 2009)
FEBRUARY 19, 2020
[R. F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, 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 since 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: It is clear from the provisions of the 1961 Act that transfers
or partitions of land made in anticipation of or in order to avoid or
defeat the 1972 Amending Act were to be ignored in calculating
ceiling limits - Under s.21, the Collector has to make a declaration
as to entitlement of a person or family unit to hold within the ceiling
area - Further, s.44B excludes pleaders from appearing on behalf
of any party in any of the proceedings under the 1961 Act - This is
for the reason that the Collector has to determine on the facts of
each case, based on returns filed if any, as to what areas are to be
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excluded so far as determination of ceiling of a person or family
unit is concerned - If it were to be held that the Collector could go
into a trial as to genuineness of a particular partition deed, even
though it is before the cut-off date, it would extend the legal fiction
that is limited to transfers and partitions made after the cut-off date;
and secondly, if a period even before the cut -off date can be
considered, it would render the cut-off date otiose, as then in all
cases the Collector could go into whether a particular transfer or
partition has been entered into to avoid the effect of the 1972
Amendment Act, which is an enquiry restricted only to transfers
and partitions which take place on or after 26.09.1970 upto the
commencement date - Also, if the Collector were to substitute himself
as a Civil Court deciding a Civil Suit, it would be absolutely essential
for a person or family unit to engage a pleader of his choice to
argue all the ramifications that his case may have, both in fact and
in law - In fact, a Civil Court alone would have the jurisdiction to
decide a question as to whether a partition deed entered into before
the cut- off date is or is not sham, which would involve a declaration
that the partition be declared void - The 1961 Act, therefore, bars
the jurisdiction of the Civil Court only insofar as transfers and
partitions are entered into on or after 26.09.1970 and before the
commencement date, and not to transfers and partitions that take
place before the cut-off date - This apart, once it is clear that the
daughters are affected by virtue of the partition deed being held to
be non est in law by the appellate tribunal, they ought to have been
made parties to the appeal so that they could have made arguments
in favour of the legal validity of the partition deed - This opportunity
being denied to them is also fatal to the appellate authority's order,
which has, therefore, wrongly been upheld by the High Court -
Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings)
and (Amendment) Act, 1972 - Hindu Law - Partition - Jurisdiction
- Interpretation of statutes - Legal fiction - Party, impleadment of.
Maharashtra Agricultural Lands (Ceiling on Holdings) Act,
1961: ss.8, 10 and 11 - Transfer and partition after cut-off date -
Jurisdiction of Collector to declare such transfer/partition sham
for determining ceiling area - Held: It is not possible to state that
wherever the expressions "transfer" and "partition" occur in ss.8,
10 and 11 of the 1961 Act, they must be understood as meaning
transfers and partitions which are genuine - If the word "genuine"
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is added, it would amount to straining the language of these
provisions and giving these provisions a construction which they
cannot possibly bear - a construction that would go against the
object of giving the Collector a limited jurisdiction to decide whether
lands fall within the ceiling area, and in so doing, whether transfers
and partitions between the cut-off date and commencement date
should be "ignored" - The language of s.11 also leads to the
conclusion that even in case of a partition that is made after the
cut-off date and before the commencement date, the power of the
Collector is not to declare such partition sham, and therefore void,
which is for a Civil Court to do, but is only to ignore such partition
for the purpose of calculating ceiling area - Land Laws -
Interpretation of Statutes.
Allowing the appeal, the Court
HELD: 1. It is clear from the provisions of the 1961 Act
that transfers or partitions of land made in anticipation of or in
order to avoid or defeat the 1972 Amending Act were to be
ignored in calculating ceiling limits. This was so laid down by the
Amending Act, 1975, which made 26.09.1970 the cut-off date after
which such transfers became suspect. The 1961 Act does not in
any manner declare such transfers to be void. However, if the
contrary is proved on the facts of a given case, i.e. that a bonafide
transfer or partition was in fact effected after the cut-off date, the
person affected would be out of the clutches of Section 10 and/or
Section 11 of the 1961 Act. In fact, what is important is the
expression "shall accordingly be ignored", which occurs in
Section 11. [Para 16][933 A-D]
2. In terms of Section 13, where a person or member of a
family unit either fails without reasonable cause to furnish a return,
or furnishes a false return, he becomes liable to a penalty. A false
return may be ignored by the Collector, requiring the person or
family unit to submit a true and correct return complete in all
particulars under Section 13(2). If thereafter, any such person or
family unit fails to comply with the order within the time so
granted, then, as a penalty for failure to furnish such return or a
true and correct return complete in all particulars, the right, title
and interest in the land held by him or the family unit as the case
may be, in excess of the ceiling area, shall, subject to the
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provisions of Chapter 4, be forfeited to the State Government
and vest in that Government. This Section gives a limited
jurisdiction to the Collector to determine whether a true and
correct return complete in all particulars has been given. Thus, a
Collector would be well within his jurisdiction to state that a
registered partition deed entered into after 26.09.1970 has been
suppressed in the return furnished, as a result of which a penalty
of INR 500 may be imposed, or excess land forfeited under
Section 13(3). This jurisdiction is limited only to the factum of a
partition deed having been suppressed from the return, and does
not extend to conduct an enquiry as to whether a partition deed
prior to 26.09.1970 is or is not a sham document. [Para 17][933
D-H; 934-A]
3. By Section 14 of the 1961 Act, the Collector is then to
hold an enquiry either suo motu or otherwise, whether or not a
return has been filed, in respect of every person or a family unit
holding land in excess of the ceiling area. In so doing, Section 18
states that the Collector must consider several matters including,
under sub-clause (b), whether any land transferred between
26.09.1970 and the commencement date (which is 02.10.1975),
or any land partitioned after the cut-off date should either be
considered or ignored in calculating the ceiling area as provided
in Sections 10 and 11 of the 1961 Act. If Section 18(a) to (k) are
seen, the evidence adduced at the hearing to be given to the
holder and other persons interested in the land, only goes to
calculating the total area of the land, including land held by the
holder between 26.09.1970 and 02.10.1975 and lands that have
been acquired after 02.10.1975. All the details mentioned in
Section 18 only speak of ignoring certain transfers or partitions
between the cut-off date and the commencement date, and
otherwise would only go to the calculation of lands held by persons,
and then applying the drill of the ceiling provisions of the 1961
Act. To state that Section 18(l) is a catch-all provision by which
the Collector can determine whether a particular transfer or
partition is a sham transaction, even if entered into before the
cut-off date, is to go beyond the jurisdiction conferred on the
Collector by the 1961 Act. In point of fact, even the language of
Section 18(l) makes it clear that "any other matter" is
circumscribed by the following words: "for the purpose of
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calculating the ceiling area, and delimiting any surplus land." [Para
18][934 B-G]
4. Under Section 21, the Collector has to make a declaration
as to entitlement of a person or family unit to hold within the
ceiling area and area of land which is in excess of the ceiling
area. Further, what is of importance is that Section 44B excludes
pleaders from appearing on behalf of any party in any of the
proceedings under the 1961 Act. This is for the reason that the
Collector has to determine on the facts of each case, based on
returns filed if any, as to what areas are to be excluded, and what
areas of land are to be included so far as determination of ceiling
of a person or family unit is concerned. If it were to be held that
the Collector could go into a trial as to whether a particular
partition deed is or is not sham, even though it is before the cutoff date, would have two effects that are not warranted in law -
first, it would extend the legal fiction that is limited to transfers
and partitions made after the cut-off date; and second, if a period
even before the cut-off date can be considered, it would render
the cut-off date otiose, as then in all cases the Collector could go
into whether a particular transfer or partition has been entered
into to avoid the effect of the 1972 Amendment Act, which is an
enquiry restricted only to transfers and partitions which take place
on or after 26.09.1970 upto the commencement date. Also, if the
Collector were to substitute himself as a Civil Court deciding a
Civil Suit, it would be absolutely essential for a person or family
unit to engage a pleader of his choice to argue all the ramifications
that his case may have, both in fact and in law. In fact, a Civil
Court alone would have the jurisdiction to decide a question as
to whether a partition deed entered into before the cut-off date is
or is not sham, which would involve a declaration that the partition
be declared void. The 1961 Act therefore bars the jurisdiction of
the Civil Court only insofar as transfers and partitions are entered
into on or after 26.09.1970 and before the commencement date,
and not to transfers and partitions that take place before the cutoff date. [Para 19][934 F-H; 935 A-E]
5. As a matter of fact, if the appeal provision, i.e. Section 33
of 1961 Act is to be seen, it is clear that appeals are provided to
the Maharashtra Revenue Tribunal against a declaration or part
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thereof made under Section 21 of the 1961 Act. The persons who
would be aggrieved by such declarations can only be the person
or family unit whose ceiling area is determined or the landlord to
whom possession of land is to be restored or the right, title and
interest of the person or family unit whose land is to be forfeited
to the State Government. If at all a cross-objection can be taken
by a respondent under Section 33(1A), it can only be a person or
family unit or landlord spoken of in Section 21(1) of the 1961 Act.
The State Government may perhaps file a cross-objection where
it contends that land has wrongly not been forfeited to it. But
such is not the case on the facts of this appeal. Thus, the State
taking a cross objection on the facts of this case would itself be
outside Section 33(1A). If at all the State can be said to be
aggrieved by a declaration made under Section 21, a suo moto
power of revision is given to the State Government under Section
45, which on the facts of a particular case may well be exercised.
This apart, once it is clear that the elder daughters are affected
by virtue of the partition deed being held to be non est in law by
the appellate tribunal, they ought to have been made parties to
the appeal so that they could have made arguments in favour of
the legal validity of the partition deed. This opportunity being
denied to them is also fatal to the appellate authority's order,
which has therefore wrongly been upheld by the Single Judge
and Division Bench of the High Court. [Paras 20, 21][935 E-H;
936 A-B]
6. It is not possible to state that wherever the expressions
"transfer" and "partition" occur in Sections 8, 10 and 11 of the
1961 Act, they must be understood as meaning transfers and
partitions which are genuine. If the word "genuine" is added, it
would amount to straining the language of these provisions and
giving these provisions a construction which they cannot possibly
bear - a construction that would go against the object of giving
the Collector a limited jurisdiction to decide whether lands fall
within the ceiling area, and in so doing, whether transfers and
partitions between the cut-off date and commencement date
should be "ignored". The language of Section 11 also leads to
the conclusion that even in case of a partition that is made after
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the cut-off date and before the commencement date, the power
of the Collector is not to declare such partition sham, and
therefore void, which is for a Civil Court to do, but is only to
ignore such partition for the purpose of calculating ceiling area.
[Para 28][940 F-H; 941 A-B]
Raghunath Laxman Wani and Ors. v. State of
Maharashtra (1971) 3 SCC 391 : [1972] 1 SCR 48;
Jugal Kishore v. State of Maharashtra (1989) Supp. 1
SCC 589 : [1988] 3 Suppl. SCR 270; State of
Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326 :
[1992] 3 Suppl. SCR 536 - distinguished.
Gurdit Singh v. State of Punjab (1974) 2 SCC 260 :
[1975] Suppl. SCR 453; Uttar Chand v. State of
Maharashtra (1980) 2 SCC 292 : [1980] 2 SCR 1048;
Bhupendra Singh v. State of Maharashtra (1996) 1 SCC
277 : [1995] 5 Suppl. SCR 491 - referred to.
Case Law Reference
[1975] Suppl. SCR 453
referred to
Para 15
[1980] 2 SCR 1048
referred to
Para 15
[1972] 1 SCR 48
distinguished
Para 22
[1988] 3 Suppl. SCR 270
distinguished
Para 23
[1992] 3 Suppl. SCR 536
distinguished
Para 24
[1995] 5 Suppl. SCR 491
referred to
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6006
of 2009.
From the Judgment and Order dated 27.11.2007 of the High Court
of Bombay Bench at Nagpur in Letters Patent Appeal No. 3 of 1991.
Krishnan Venugopal, Sr. Adv., Adarsh Tripathi, Anish Gupta,
Jamshed Bey, Amit Singh Chauhan, Ekansh Bansal, Mrs. Bandana Singh
and Ajay Kumar Talesara, Advs. for the Appellants.
Rahul Chitnis, Aaditya A. Pande and Sachin Patil, Advs. for the
Respondents.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. This appeal has come to us owing to a difference of opinion
between Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgment
dated 29.08.2019.
2. The brief facts necessary to appreciate the controversy in this
appeal are as follows: a partition deed dated 31.01.1970 (duly registered
on 1.07.1970) was executed between late Shri Vithaldas Jagannath Khatri
and his minor son and three minor daughters.In terms of this document,
the agricultural land of the Hindu Undivided Family (HUF) is sought to
be divided by mentioning that parties two to five - who are the four
children of Vithaldas - have to be provided expenses for their education
and marriage, which will be borne out of the separate property allotted
to each. An earlier partition deed was executed between Vithaldas and
his father Jagannath on 20.01.1955.Separate provision was made in favour
of the wife of Vithaldas by means of a gift deed of land in her favour.
3. At this stage, it is necessary to set out certain provisions of
'The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961'
(hereinafter referred to as the "1961 Act"). Section 2(4) of the 1961 Act
defines 'appointed day' as meaning the day on which the 1961 Act comes
into force, which is 26.01.1962. Section 2(6A) defines 'commencement
date' as meaning the 2nd day of October, 1975. Section 2(11) defines
'family' as follows:
"(11) "family" includes, a Hindu undivided family, and in the case
of other persons, a group or unit, the members of which by custom
or usage, are joint in estate or possession or residence;"
Section 2(11-A) defines 'family unit' as follows:
"(11-A) "family unit" means a family unit as explained in section
4;"
4. By Section 3, no person orfamily unit shall, after the
'commencement date', hold land in excess of the ceiling area, as is
determined in the manner provided. By Section 4(1), all land held by
each member of a family unit, whether jointly or separately, shall, for the
purposes of determining the ceiling area of the family unit, be deemed to
be held by the family unit. The explanation defines 'family unit' as follows:
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"Explanation.- A "family unit" means,-
(a) a person and his spouse (or more than one spouse) and their
minor 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 minor
unmarried daughters of such deceased spouses."
5. Section 5 then fixes the ceiling area. Section 8 deals with land
held in excess of the ceiling area on or after the commencement date.
Section 9 is a restriction on acquisition of land in excess of the ceiling
area on or after the commencement date. Section 10 is important and is
set out hereunder:
"10. Consequences of certain transfers and acquisitions of land.-
(1) If -
(a) any person or a member of a family unit, after the 26th day of
September, 1970 but before the commencement date, transfers
any land in anticipation of or in order to avoid or defeat 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 the case may
be, the family unit, is entitled to hold, the land so transferred shall
be taken into consideration, and the land exceeding the ceiling
area so calculated shall be deemed to be in excess of the ceiling
area for that holding, notwithstanding that the land remaining with
him or with the family unit may not in fact be in excess of the
ceiling area.
If by reason of such transfer, the holding of a person, or as the
case may be, of the family unit is less than the area so calculated
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 be
surplus land; and out of the land so transferred and in possession
of the transferee unless such land is liable to forfeiture under the
provisions of sub-section (3), land to the extent of such deficiency
shall, subject to rules made in that behalf, also be deemed to be
surplus land, notwithstanding that the holding of the transferee
may not in fact be in excess of the ceiling area.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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Explanation.- For the purposes of clause (a) 'transfer' has the
same meaning as in section 8.
All transfers made after the 26th day of September, 1970 but before
the commencement date, shall be deemed (unless the contrary is
proved) to have been made in anticipation of or in order to avoid
or defeat the object of the Amending Act, 1972.
Explanation.- For the purposes of this sub-section, a transfer
shall not be regarded as made on or before 26th September, 1970
if the document evidencing the transfer is not registered on or
before that date or where it is registered after that date, it is not
presented for registration on or before the said date.
(2) If any land is possessed on or after the commencement date
by a person, or as the case may be, a family unit in excess of the
ceiling area or if as a result of acquisition (by testamentary
disposition, or devolution on death, or by operation of law) of any
land on or after that date, the total area of land held by any person,
or as the case may be, a family unit, exceeds the ceiling area, the
land so in excess shall be surplus land.
(3) Where land is acquired in wilful contravention of section 9,
then as a penalty therefore, the right, title and interest of the person,
or as the case may be, the family unit or any member thereof in
the land so acquired or obtained shall, subject to the provisions of
Chapter IV, be forfeited, and shall vest without any further
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 and
after hearing the holder and the person in whose favour the
encumbrance is made by him, direct that the right, title and interest
of the holder in some other land of the holder equal in extent to
the land acquired in wilful contravention of section 9, shall be
forfeited to Government."
Section 11 states as follows:
"11. Restriction on partition.- Where any land held by a family is
partitioned after the 26th day of September, 1970, the partition so
made shall be deemed (unless the contrary is proved) to have
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been made in anticipation of or in order to avoid or defeat the
object of the Amending Act, 1972, and shall accordingly be ignored,
and any land covered by such partition shall, for the purposes 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 the family shall
be taken into consideration for calculating the ceiling area in
accordance with the provisions of section 3.
Explanation.- For the purposes of this section, 'partition' means
any division of land by act of parties made inter vivos, and includes
also partition made by a decree or order of a court, tribunal or
authority."
6. Section 12 deals with the submission of returns by a person or
a family unit. Section 13 is important and states as follows:
"13. Failure to submit return.- (1) Where a person or member of
a family unit required by section 12 to furnish a return,-
(a) fails without reasonable cause so to do, within the time specified
in that section, or
(b) furnishes a return which he knows, or has reason to believe,
to be false, he shall be liable to pay a penalty which may extend in
the former case to one hundred rupees, and in the latter case to
five hundred rupees.
(2) Where the Collector has reason to believe that a person or a
member of a family unit required by section 12 to furnish a return
has, without reasonable cause, failed so to do, or has submitted a
return which he knows or has reason to believe to be false, the
Collector shall issue a notice calling upon such person or member
to show cause within fifteen days of the service thereof, why the
penalty provided by sub-section (1) should not be imposed upon
him. If the Collector, on considering the reply or other cause
shown, is satisfied that the person or member has without
reasonable cause failed to submit the return within time, or has
submitted a return which he knew or had reason to believe to be
false, he may impose the penalty provided in the last preceding
sub-section and require him to submit a true and correct return
complete in all particulars, within a period of fifteen days from the
date of the order.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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(3) If the person or member fails to comply with the order within
the time so granted by the Collector, then as a penalty for failure
to furnish a return, or a true and correct return complete in all
particulars, the right, title and interest in the land held by him or as
the case may be, by the family unit in excess of the ceiling area
shall, subject to the provision of this Chapter, be forfeited to the
State Government and shall thereupon vest without further
assurance in that Government."
Section 14(1) states as follows:
"14. Power of Collector to hold enquiry.- (1) As soon as may be
after the expiry of the period referred to in section 12, or the
further period referred to in sub-section (2) of section 13, the
Collector shall, either suo motu whether or not a return had been
filed or on the basis of the returns submitted to him under either of
those sections, and such record as he may consider it necessary
to refer to, hold an enquiry in respect of every person or family
unit holding land in excess of the ceiling area, and shall, subject to
the provisions of this Chapter, determine the surplus land held by
such person or family unit."
Section 18 is important and is set out hereunder:
"18. Collector to consider certain matters.- On the day fixed for
hearing under section 14, or on any other day or days to which the
inquiry is adjourned, the Collector shall, after hearing the holder
and other persons interested and who are present and any evidence
adduced, consider the following matters, that is to say,-
(a) what is the total area of land which was held by the holder on
the 26th day of September, 1970;
(b) whether any land transferred between the period from the
26th day of September, 1970 and the commencement date, or any
land partitioned after the 26th day of September, 1970, should be
considered or ignored in calculating the ceiling area as provided
by sub-section (1) of section 10 or section 11;
(bb) whether the holder has any share in the land held by a family
or held or operated by any co-operative society or held jointly
with others or held as a partner in a firm; and the extent of such
share;
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(c) what is the total area of land held by the holder on the
commencement date?
(d) whether any transfer or partition of land is made by the holder
in contravention of section 8 or 11 and if so, whether, the land so
transferred or partitioned should be considered or ignored in
calculating the ceiling area under the provisions of sub-section (1)
of section 10 or section 11?
(e) whether any land has been acquired or possessed on or after
the 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 which the holder is entitled to hold?
(h) whether any land is held by the holder as tenant, and if so,
whether his landlord has a subsisting right of resumption of the
land for personal cultivation, under the relevant tenancy law
applicable thereto?
(i) whether any land held by the holder is to be forfeited to
Government under sub-section (3) of section 10, or of section 13,
or should be deemed to be surplus land under any of the provisions
of this Act?
(j) whether the proposed retention of land by the holder is in
conformity with the provisions of section 16?
(k) which particular lands out of the total land held by the holder
should be delimited as surplus land?
(l) any other matter which, in the opinion of the Collector, is
necessary to be considered for the purpose of calculating the
ceiling area, and delimiting any surplus land."
Section 21(1) and 21(3) then state:
"21. Collector to make declaration regarding surplus land etc.,
and consequences thereof.- (1) As soon as may be after the
Collector has considered the matters referred to in section 18 and
the questions, if any, under sub-section (3) of section 20, he shall
make a declaration stating therein his decision onVITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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(a) the total area of land which the person or family unit is entitled
to hold as the ceiling area;
(b) the total area of land which is in excess of the ceiling area;
(c) the name of the landlord to whom possession of land is to be
restored under section 19, and area and particulars of such land;
(d) the area, description and full particulars of the land which is
delimited as surplus land;
(e) the area and particulars of land out of surplus land, in respect
of which the right, title and interest of the person or family unit
holding it is to be forfeited to the State Government.
The Collector shall announce his declaration in the presence of
the holder and other persons interested who are present at the
time of such declaration.
xxx xxx xxx
(3) The declaration made under this section, subject to the decision
of the Maharashtra Revenue Tribunal in appeal under section 33,
or of the State Government in revision under subsection (2) of
section 45, shall be final and conclusive, and shall not be questioned
in any suit or proceedings in any court."
7. Appeals are provided against the Collector's orders and awards
under Section 33 of the 1961 Act. This again is an important provision
and is set out hereunder:
"33. Appeals.- (1) An appeal against an order or award of the
Collector shall lie to the Maharashtra Revenue Tribunal in the
following cases:-
(1) an order under sub-sections (2) and (3) of section 13 not being
an order under which a true and correct return complete in all
particulars is required to be furnished;
(2) a declaration or any part thereof under section 21;
(2a) an order under section 21-A ;
(3) an award under section 25;
(4) an order refusing sanction to transfer or divide land under
section 29;
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(5) an order of forfeiture under sub-section (3) of section 29;
(6) an amendment of declaration or award under section 37; and
(7) an order of summary eviction under section 40.
(1A) Any respondent, though he may not have appealed from any
part of the decision, order, declaration or award, may not only
support the decision, order, declaration or award, as the case may
be, on any of the grounds decided against him, but take crossobjection to the decision, order, declaration or award which he
could have taken by way of an appeal:
Provided that, he has filed the objection in the Maharashtra
Revenue Tribunal within thirty days from the date of service on
him of notice of the day fixed for hearing the appeal, or such
further time as the Tribunal may see fit to allow; and thereupon,
the provisions of Order 41, rule 22 of the First Schedule to the
Code of Civil Procedure, 1908, (V of 1908) shall apply in relation
to the cross-objection as they apply under that rule.
(2) Every petition of appeal under sub-section (1), shall be
accompanied by a copy of the decision, order, declaration or award,
as the case maybe, against which the appeal is made.
(3) In deciding such appeal, the Maharashtra Revenue Tribunal
shall exercise all the powers which a Court has, and follow the
same procedure which a Court follows, in deciding appeals from
the decree or order of an original Court, under the Code of Civil
Procedure, 1908, (V of 1908).
Section 41 bars the jurisdiction of the Civil Court as follows:
"41. Bar of jurisdiction.- No Civil Court shall have jurisdiction to
settle, decide or deal with any question which is by or under this
Act required to be settled, decided or dealt with by
the Commissioner, Collector, Tribunal, the officer authorised under
section 27, the Maharashtra Revenue Tribunal or the State
Government.
Explanation.- For the purpose of this section a Civil Court shall
include a Mamlatdar's Court constituted under the Mamlatdars'
Courts Act, 1906, (Bom. II of 1906)."
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
SUSHMA v. STATE OF MAHARASHTRA REVENUE AND FOREST DEPTT.
[R. F. NARIMAN, J.]
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Section 44B excludes pleaders from appearance as follows:
"44B. Pleaders etc., excluded from appearance.- Notwithstanding
anything contained in this Act or any law for the time being in
force, no pleader shall be entitled to appear on behalf of any party
in any proceedings under this Act before the Authorized Officer,
the Tribunal, the Collector, the Commissioner, the State Government
or the Maharashtra Revenue Tribunal:
Provided that, where a party is a minor or lunatic, his guardian
may 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 legal
practitioner."
Section 45 provides for revision by the State Government and
states:
"45. Control.- (1) In all matters connected with this Act, the State
Government shall have the same authority and control over the
officers authorised under Section 27, the Collectors and the
Commissioners acting under this Act, as they do in the general
and revenue administration.
(2) The State Government may, suo motu or on an application
made to it by the aggrieved person, at any time, call for the record
of any inquiry or proceedings under sections 17 to 21 (both
inclusive) for the purpose of satisfying itself as to the legality or
propriety of any inquiry or proceedings (or any part thereof) under
these sections and may pass such order thereon as it deems fit,
after giving the party a reasonable opportunity of being heard:
Provided that, nothing in this sub-section shall entitle the State
Government to call for the record of any inquiry of proceedings
of a declaration or part thereof under section 21 in relation to any
land, unless an appeal against any such declaration or part thereof
has not been filed within the period provided for it, and a period of
three years from the date of such declaration or part thereof has
not elapsed.
Provided further that, no order shall be passed under this section
so as to affect any land which is already declared surplus and
distributed according to the provisions of this Act:
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Provided also that the revisional jurisdiction under this section shall
be exercised only where it is alleged that the land declared surplus
is less than the actual land which could be declared surplus.
(3) The State Government may, subject to such restrictions and
conditions as it may impose by notification in the Official Gazette,
delegate to the Commission the power conferred on it by subsection (2) of this section or under any other provisions of this Act
except the power to make rules under section 46 or to make an
order under section 49."
8. It will thus be seen that under Section 11 of the 1961 Act,
where any land held by a family is partitioned after the cut-off date of
26.09.1970, the partition so made shall be deemed, unless the contrary is
proved, to have been made in anticipation of, or in order to avoid or
defeat, the Amending Act of 1972 and shall accordingly be ignored.There
is no doubt that on the facts of this case that the partition deed, as well
as its registration, is prior to the cut-off date.
9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas
was declared surplus. An appeal preferred against this order was
dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On
02.03.1982, a learned Single Judge of the Nagpur Bench of the Bombay
High Court remitted the matter to the Surplus Land DeterminationTribunal
for fresh enquiry. On remand, a fresh order was passed by the SubDivisional Officer on 07.05.1984, where land admeasuring 59 acres 35
gunthas was deemed to be surplus. An appeal was filed against the
aforesaid order by Vithaldas, his wife, his son and the third daughter
Bela Devi under Section 33 of the 1961 Act. The two other minor
daughters did not file any appeal, as they were satisfied with the view
adopted by the Sub-Divisional Officer, by which no part of the property
that devolved on them by means of the partition deed was declared
surplus. The State filed cross-objections in the appeal filed by Vithaldas,
challenging the exclusion of the land, inter alia, of the two elder daughters.
However, the State did not take care to implead them. The appeal filed
by Vithaldas et. al. was dismissed by the Appellate Authority, who allowed
the cross objections of the State by its order dated 03.12.1984. The
appellate authority found that the partition deed dated 31.01.1970, though
before the cut-off date, was against the principles of Hindu Law, to the
extent that it gave a share to minor daughters in ancestral land. On this
basis, the partition deed was declared to be of no effect in law.
VITHALDAS JAGANNATH KHATRI (D) THR. SMT. SHAKUNTALA @
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[R. F. NARIMAN, J.]
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10. The aforesaid appellate order was challenged by Vithaldas
and his wife in writ proceedings before the Bombay High Court. The
learned Single Judge dismissed the writ petition in September, 1987. An
intra-court appeal was preferred which was then dismissed by the
impugned order dated 27.11.2007. A Special Leave Petition was filed by
Vithaldas through his legal representatives who are the two elder
daughters, as his legal heirs, as by now Vithaldas had expired. During
the course of the initial hearing, this Court, by its order dated 23.11.2016,
passed an order stating that it wished to see revenue entries in terms of
Section 148 and 149 of the Maharashtra Land Revenue Code, 1966,
post-execution of the partition deed.An additional affidavit was filed by
the son of the late Vithaldas, stating that records from 1970-75 are in a
mutilated condition, but that from the records made available, the two
elder daughters were shown as occupants from 1972 to 1976 for survey
nos. 12 and 14, through their guardian, i.e. their grandfather.
11.