Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6006 OF 2009

VITHALDAS JAGANNATH KHATRI (D) Through SHAKUNTALA ALIAS SUSHMA & ORS.    ...Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS.           ...Respondent(s)

J U D G M E N T

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

1

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.  The  relevant

Sections falling in the Chapter are reproduced hereunder:

“Section 8 - Restriction on transfer

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

Explanation :- In this section, "transfer" means transfer, whether by way  of  sale,  gift,  mortgage  with  possession,  exchange,  lease, assignment  of  land  for  maintenance,  surrender  of  a  tenancy  or resumption of land by a landlord or any other disposition, whether by act of parties made inter vivos or by decree or order of a court,

2

tribunal or authority (except where such decree or order is passed in  a  proceeding  which  is  instituted  in  such  Court,  Tribunal  or before such authority before the 26th day of September, 1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for a public purpose under any law for the time being in force.”

…. …. …. …. ….

Section 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.

3

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 therefor, 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.  

4

Section 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 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.”

3. A reading of the aforesaid provisions would show that a fiction is

sought  to  be  created  (whereby  a  transfer  made  from a  prior  date,  of

26.9.1970, is sought to be nullified, other than by way of a  bona fide

transaction) by the Amendment Act of 1972, by providing for the cut-off

date  of  26.9.1970  qua any transactions  or  transfers,  transactions  after

which date being deemed to be transfers in anticipation, or in order to

defeat the object of the Amendment Act of 1972.  It may also be noticed

that it is only by the Amendment Act of  1975  that the commencement

date was specified as 2.10.1975.  Thus, while normally all the relevant

provisions of the legislation, having come into force from 2.10.1975, the

5

provisions  would  have  applied  from that  date,  i.e.  2.10.1975,  a  legal

fiction  was  created  to  apply  the  provisions  retrospectively,  from

26.9.1970.  It does appear from the submissions that as the legislation

appears to have been debated and been in contemplation for some time,

the  apprehension  of  transactions  during  this  window  of  time,  in

anticipation  of  the  amendments,  was  taken  care  of  by  the  aforesaid

provisions.

4. The  factual  matrix  has  to  be  examined  in  the  context  of  the

aforesaid  provisions,  and  in  the  present  appeal  we  are  practically

concerned  with  one  document,  which  is  the  Partition  Deed  dated

31.1.1970, which has been duly registered, i.e., both the document and its

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 three minor

daughters.  It may, however, be noticed that two of the minor daughters

attained majority before the commencement date of 2.10.1975, though

they  were  not  major  on  26.9.1970.   In  terms  of  this  document,  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

6

stated to be used jointly and shares in the lands were given to both, the

minor son and the daughters stating as under: “….Party No.2 to 51 have to take the education & to see that each of them take it freely & to provide for the expenses therefore and to see that each of them will meet the expenses out of their own property and that no dispute took place between them in future, therefore  we  are  executing  &  keeping  with  us  this  deed  of partition…..”

6. After setting out the aforesaid recital, the property falling to each

of  the  parties  is  mentioned  and  post  that,  before  the  signatures,  it  is

further stated as under:

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

7. We may also notice that the prelude to the aforesaid Partition Deed

on account of an earlier Partition Deed executed between Vithaldas and

his father Jagannath, on 20.1.1955, when a separate provision was also

made  through  a  Gift  Deed  by  Jagannath,  in  favour  of  the  wife  of

Vithaldas.

8. On the provisions  of the said Act coming into force, the Surplus 1 Children of Vithaldas

7

Lands Distribution Tribunal (for short ‘SLDT’) instituted proceedings in

exercise of suo moto powers in respect of the return filed under Section

12 of the said Act by Vithaldas, which Section falls in Chapter IV, dealing

with  ‘surplus  land’.   In  the  course  of  the  assessment  proceedings

regarding surplus land, the holdings of the entire family were taken into

consideration, as in terms of Section 2 (11) of the 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  the  said  Act,  for

definition, has referred to Section 4, defining ‘land held by a family unit’.

In terms of order dated 19.11.1976, 60 acres and 27 gunthas of land of

late Vithaldas was declared surplus.  This order was assailed before the

Maharashtra  Revenue  Tribunal,  Bombay  Bench,  Nagpur,  which

dismissed the appeal on 16.2.1977, resulting in proceedings being filed

by Vithaldas, before the Bombay High Court, Nagpur Bench.  In terms of

order dated 2.3.1982, learned Single Judge of the Nagpur Bench of the

Bombay High  Court  remitted  the  matter  back  to  the  SLDT for  fresh

inquiry,  on  the  ground  of  lack  of  adequate  opportunity  provided  to

Vithaldas and others to present their case.

9. On  remand,  a  fresh  order  was  passed  by  the  SDO,  Chikhali

8

District, Buldana on 7.5.1984.  Various aspects of holding of Vithaldas

were examined.  On the matter being revisited in these proceedings, land

measuring 59 acres and 35  gunthas was deemed surplus, under Section

3(2) of the said Act, while excluding (a) Potkharab land of Vithaldas, to

the extent of 12.16 acres; (b) Field Survey No.106, which was stated to

be vesting with the wife of Vithaldas, having been gifted by her father-in-

law Jagannath, and found that the same continued to be in possession of

Jagannath, as also recorded in the Record of Rights and crop statements;

(c) the land allotted to the two major daughters of 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 said Act.  The

other two minor daughters, who had attained majority before 2.10.1975,

however, did not file the appeal as they were apparently satisfied 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, they were neither the

appellant, nor the respondent before the appeal proceedings.  Nor did the

State take care to implead them, despite having filed cross-objections qua

9

their land.  The appeal court, however, dismissed the appeal, and allowed

the cross-objections  vide order dated 3.12.1984.  Since the land of the

two elder daughters is the only concern, in this matter, the rationale for

allowing the cross-objections has been set forth.

11. The  principal  plea,  which  found  favour  with  the  appellate

authority, was that the Partition Deed dated 31.1.1970 was against the

principles of Hindu law to the extent it gave a share to minor daughters in

ancestral land.  The land is stated to have also continued in the possession

of Vithaldas.  Even though the Partition Deed was pre the cut-off date of

26.9.1970, it was opined that the document could be looked into, in a

case like the present one, where the property was apportioned to the two

daughters who were not entitled to a share.

12. The aforesaid appellate order was challenged by Vithaldas and his

wife  in  the  writ  proceedings  before  the  Bombay  High Court,  Nagpur

Bench, but that petition was dismissed vide oral judgment dictated over a

period of 7.9.1987 to 15/16.9.1987.  There were certain other aspects also

urged  in  those  proceedings,  but  they  are  not  relevant  for  the  present

appeal.  The High Court agreed with the finding that the daughters, not

having a share in the property, a Partition Deed could not have conferred

10

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  dismissed  vide

impugned order dated 27.11.2007.  The Division Bench agreed with the

findings that the partition effected  vide Partition Deed dated 31.1.1970

was unnatural as it alienated properties to minor daughters,  and  that a

female 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 of land by late Vithaldas

was taken into account.  The attainment of the age of majority by the

elder two daughters, before the commencement date, 2.10.1975, was also

ignored as irrelevant.

14. The appellants before the Division Bench also sought to raise the

issue of the two elder daughters not being arrayed as parties in the cross-

objections,  even  though  their  existing  rights  were  being  affected.

Further, it was argued that none of the members of the HUF had assailed

the Partition Deed on any account.  These pleas also did not find favour

on the ground that it was late Vithaldas who sought to lose the land and,

in effect, it was for him to see how to confer the rights on his two elder

daughters.  The two elder daughters were held to form part of the family

11

unit.

15. The  Special  Leave  Petition  (‘SLP’)  was  filed  only  by  late

Vithaldas, through his legal representatives.  The two elder daughters are,

thus,  appellants  as  legal  heirs  of  late  Vithaldas,  in  the  present

proceedings.  This is of significance as the contention of respondents is

that 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 quo was

directed to continue throughout.  On 23.11.2016, during the course of

hearing, an order was passed to obtain clarity, whether in pursuance of

the Partition Deed, the transfer of rights was ever reported to the revenue

authorities,  in  terms of  Sections  148 & 149 of  the Maharashtra  Land

Revenue Code, 1966.  The action, if any, taken by the revenue authorities

was also not apparently reflected in the records before the Court.  Time

was  granted  to  place  on  record  the  requisite  material  qua the

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 from the

Tehsil  Office  of  the  concerned  district,  they  received  a  response,

12

informing  them that  records  from  1970  to  1975  are  in  a  mutilated

condition and that the mutation register for the period from 1964 to 1978

is not  traceable.   The crop statement  was not  available for  the period

1970-1972 for  Village Mangrul,  while for  Village Babulgaon the crop

statement 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 not

available for the period 1971-1972. The records made available, however,

do show that from 1972- 1976, for Survey No. 12, and from 1973-1976,

as  gathered  for  Survey  No.  14, the  two  daughters  were  shown  as

occupants, but through their guardian.  It may be noted that somehow, on

attaining the age of majority, apparently no endorsement was made qua

the elder two daughters on that aspect.  The Record of Rights also shows

a similar position.

17. The picture which emerges from the documents produced is that in

pursuance of the Partition Deed, which was obviously produced, both for

the Record of  Rights and the Crop Register, the names of the two elder

daughters were entered though through their guardian, late Jagannath (the

grandfather),  as  they  were  minors  at  the  relevant  time,  while  the

corresponding  endorsement  on  their  attaining  majority,  before  the

13

commencement date 2.10.1975 was seemingly not made.

18. We heard Mr. Krishnan Venugopal, learned Senior Counsel for the

appellants  and  Mr.  N.R.  Katneshwarkar,  Advocate  on  behalf  of  the

respondent-State.

Deemed Fiction:

19. 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.  The preamble quoted aforesaid sets forth the

object  of  the  said  Act.   But,  it  is  equally  true  that  in  giving  wider

amplitude to such legislation, it cannot be that the Court interprets the

words of the statute beyond its plain reading reflecting the intent of the

legislation.  A preamble has its limitations insofar as being treated as an

aid for  the interpretation of  a  statute.  It  cannot  restrict  or  enlarge the

provisions  of  the  Act.2  Thus,  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.3

20. On a reading of the provisions of Chapter III, including Sections 8, 2 Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79; State of West Bengal v. Union of India AIR  1963 SC 1241 3 The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).  

14

10 & 11 of the said Act, there is no ambiguity as would require any aid to

construct the meaning of those Sections.

21. 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.  The object was “to prevent

circumvention by dubious and indirect methods.4”  This is the view 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 reason why a construction

should be put on the Section which its language could hardly bear.  The

legislation in question in Gurdit Singh v. State of Punjab6 was a similar

one, The Pepsu Tenancy and Agricultural Lands Act, 1955. It would be

difficult  to  accept  and  countenance  a  situation  where,  irrespective  of

limitations imposed in considering the past time period, any transaction

could be so assailed.  In the wisdom of the legislature, the window of five 4 Gurdit Singh v State of Punjab (1974) 2 SCC 260 5 (supra) 6 (supra)

15

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 where clause (b) specifically

provides as under:

“18. (a) xxxx xxxx xxxx xxxx

(b) whether any land transferred between the period from 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;”

Thus,  once  again,  it  is  clearly  stated  that  the  lands  transferred

between 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, 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.

23. The  legislature  has  also  taken  another  caution.   The  second

Explanation to sub-section (1) of Section 10 also provides that documents

16

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.  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 creating documents on a

back date and subsequently producing them for registration is obviated.

24. Section 11 specifically talks about the partition deed in a similar

manner  and,  thus,  not  only  transfers  whether  by  way  of  sale,  gift,

mortgage  with  possession,  exchange,  lease,  assignment  of  land  for

maintenance, surrender of a tenancy or resumption of land by a landlord

or  any  other  disposition,  are  included,  even  the  avenue  by  way  of  a

partition deed has been shut out, unless it has been executed prior to the

cut-off date.  There is no doubt that in the present case, the partition deed

was executed before the cut-off date of 26.9.1970 and registered even

prior to that date.

25. On behalf  of  the  appellants,  a  number  of  judgments  have  been

referred to, on how a deemed fiction should be construed.  Thus, a legal

fiction is to be limited for the purpose for which it is created and should

17

not be extended beyond  that legitimate field7.   There are a number of

judgments referred to in the context of taxing statutes, but then the rules

of  interpretation  of  taxing statutes,  to  be  construed  strictly,  would  be

different  and  there  is  no  purpose  in  referring  to  these  judicial

pronouncements.  In the context of the Kerala Land Reforms Act, 1964,

the  issue  of  legal  fiction  was,  once  again,  examined8.   The  same

proposition  was,  once  again,  reiterated  while  observing  that  a  legal

fiction is not to be extended beyond the purpose for which it is created,

and  that  it cannot  be  extended  by  importing  another  fiction.   In  the

context of Section 4A of that Act, it  was held to be circumscribed by

express words – a mortgagee in possession was stated to be one who, for

a continuous period of not less than 50 years immediately preceding the

commencement  of  that  Section  held  that  capacity.   The  words

“immediately preceding the commencement” were required to be given

their  ordinary and full  meaning as reflecting the legislative intent  and

thus,  only  such  type  of  cases  where  a  mortgagee  was  in  possession,

immediately  preceding  the  commencement  of  the  Section, was

extendable for  a  period of  50 years  in  the past  alone.   It  was further

7 Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603 8 Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185

18

observed as under:

“….However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4-A such fiction can arise  only when the express language of  the section laying down the conditions precedent for raising of such a fiction is  complied  with  by  the  mortgagee-in-possession  concerned seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the court  on analogy or  by addition or  deleting words not contemplated by the legislature.”

26. This judgment has found support in a subsequent judgment of this

Court in Raj Kumar Johri v. State of M.P.9  Thus, the aforesaid 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.

27. This  Court,  in  Uttar  Chand  v.  State  of  Maharashtra,10 while

dealing with the very statute has opined that the cut-off date would be

sacrosanct.  The factual contours dealt with partition before the cut-off

date,  as  also  sale  of  land.   Once  the  cut-off  date  is  provided,  it  was

observed that they fell completely outside the ambit of the provisions of

the Act and, thus, the High Court would not be justified in presuming that 9 (2002) 3 SCC 732 10 (1980) 2 SCC 292

19

the transfers made were either collusive or fraudulent.

The appellate authority allowing the cross-objections:

28. The  order  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, there is no hesitation in stating that 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,

late Vithaldas, it is for Vithaldas 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

aforesaid view is reinforced by a catena of judicial pronouncements. It

20

has  been  held  that  the  Code  of  Civil  Procedure,  1908  does  not

contemplate filing of cross-objections against a party who is not a party

to the appeal11.   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-objections12.  The position would be no different

qua a judicial or quasi-judicial authority as a party to be effected must get

a right of hearing13. Thus, unqualified imprimatur can be lent to this view.

29. Thus, for the aforesaid reason also the cross-objection  could  not

have disturbed the status of the two elder daughters.

Unmarried daughters’ claim in HUF property:

30. It has already been observed that non-impleadment of the two elder

daughters would be fatal to the appellate proceedings.  But, they are fatal

for more than that reason.  In fact, the view taken by both the learned

Single Judge and the Division Bench would equally fall foul of the legal

treatise, enunciating the rights of an unmarried daughter.  The view taken

11 Rajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 12 Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 13 Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786  (WS)

21

is that since these lands were given to minor unmarried daughters, they

having no share in the HUF property, such grant is contrary to law at that

point of time. 31. It may be noticed, of course, that the lis has been pending, and the

current scenario is one where even daughters have been given rights in

the ancestral/HUF property, in terms of the amendment made to Section 6

of the Hindu Succession Act, 1956.  The State of Maharashtra, where the

land is located was a step ahead inasmuch as vide Maharashtra Act 39 of

1994,  which  was  brought  into  force  on  22.6.1994,  such  rights  were

conferred  on  women  by  making  them  also  a  coparcener  by  birth.

However, even on the date when the Partition Deed was executed, the

legal position was not as has been enunciated.

32. It has been observed that a father can make a gift within reasonable

limits  of  ancestral  immovable  property  to  his  daughter  as  part  of  his

moral obligations, at the time of her marriage or even thereafter.  In fact,

there is an observation made that gift made of 1/6 th of the total holding of

the ancestral property is valid14.  This is in view of the fact that such gifts

made are for pious purposes, but the alienation must be  by an act  inter

vivos15. 14 Pugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321 15 R. Kuppayee v. Raja Gounder (2004) 1 SCC 295

22

33. In  Guramma  Bhratar  Chanbasappa  Deshmukh  v.  Mallappa

Chanbasappa & Ors.16, the legal position has been summarized as under: “15… In Madhaviya, pp. 41 and 42, a text of Katyayana is cited authorizing  the  gift  of  immovable  property  by  a  father  to  his daughters besides a  gift  of  movables up to the amount of  2000 phanams a year…

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

These and similar other texts indicate that Hindu law texts not only sanction the giving of property to daughters at the time of partition or  at  the  time  of  their  marriage,  as  the  case  may  be,  but  also condemn the dereliction of the said duty in unequivocal terms. It is true  that  these  Hindu  law  texts  have  become  obsolete.  The daughter has lost her right to a share in the family property at the time of its partition. But though the right has been crystallized into a  moral  obligation  on  the  part  of  the  father  to  provide  for  the daughter either by way of marriage provision or subsequently…  

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

…Wallis, J. in his judgment pointed out that unmarried daughters were formerly entitled to share on partition and that right fell into

16 (1964) 4 SCR 497

23

desuetude, a gift made to a daughter was sustained by courts as a provision for the married couple. The learned Judge summarised the position thus, at p. 532: “… although the joint family and its representative, the father or other  managing  member,  may  no  longer  be  legally  bound  to provide  an  endowment  for  the  bride  on  the  occasion  of  her marriage, they are still morally bound to do so, at any rate when the circumstances of the case make it reasonably necessary.”…

…Another Division Bench of the Madras High Court considered the question in Sundaramya v. Seethamma [(1911) 21 MLJ 695, 699] and declared the validity of a gift of 8 acres of ancestral land by a Hindu father to his daughter after marriage when the family was possessed of 200 acres of land. The marriage took place about forty years before the gift. There was no evidence that the father then had any intention to give any property to the daughter. The legal position was thus expounded by the learned Judges. Munro and Sankran Nair, JJ.:

“The father or the widow is not bound to give any property. There may be no legal but only a moral obligation. It is also true that in the case before us the father did not make any gift and discharge that moral obligation at the time of the marriage. But it is difficult to see why the moral obligation does not sustain a gift because it was not  made to the daughter  at  the time of  marriage but  only some  time  later.  The  moral  obligation  of  the  plaintiff's  father continued 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 of a gift made by a Hindu father of a reasonable portion of ancestral immovable property to his daughter without reference to his son. Therein, the learned Judge observed at p. 262:

24

“There can be no doubt that the father is under a moral obligation to make a gift of a reasonable portion of the family property as a marriage  portion  to  his  daughters  on  the  occasion  of  their marriages. It has also been held that it is a continuing obligation till it is discharged by fulfilment thereof. It is on this principle a gift of a small portion of immovable property by a father has been held 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 will have to be judged according to the State of the family at the time of the  gift,  the  extent  of  the  family  immovable  property,  the indebtedness of the family, and the paramount charges which the family was under an obligation to provide for,  and after having regard  to  these  circumstances  if  the  gift  can  be  held  to  be reasonable, such a gift will be binding on the joint family members irrespective of the consent of the members of the family.” This decision was followed by Chandra Reddy, J. of the Madras High Court in Annamalai v. Sundarathammal [(1952) II MLJ 782, 784]…  

16… The legal position may be summarized thus: the Hindu law tests conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But, it became, crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his  representative  to  make  such  a  gift  is  not  confined  to  the marriage occasion.  It  is  a  normal  obligation and it  continues to

25

subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either  during  the  lifetime  of  the  father  or  thereafter.  It  is  not possible  to  lay  down  a  hard  and  fast  rule,  prescribing  the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances...”…

In the aforesaid case, a discussion took place in respect of a Gift

Deed executed with respect to a daughter.  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.   There  is  a  discussion  of  even  the  Manusmriti  to

conclude that, though it may not reflect the current legal position, but

consistently, the Hindu texts not only sanction the giving of properties

to daughters at the time of partition, or at the time of marriage, but

even 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  been

observed as under:

17 AIR 1953 Mad 404

26

“5.  If  the  obligation  is  moral  and continuing one  and could  be made long after the marriage, could it be said that it is not within the competence of a father to make such a gift before the marriage? In my opinion, there is not much difference in principle between a gift after the marriage, and a gift before the marriage, the object of such a gift being to make a future provision for the bridal couple.

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

35. The aforesaid judgment received the imprimatur of this Court in

Guramma  Bhratar  Chanbasappa  Deshmukh  &  Ors.   v.  Mallappa

Chanbasappa & Ors.18.

36. The legal view, thus, is very clear: a. A provision for marriage of unmarried daughters can be made

out of ancestral property. b. Such provision can be made before, at the time, or even after

the marriage. c. The provision is being made out of pious obligation, though the

right of women got diluted over a period of time.  However,

18 (supra)

27

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.  As mentioned above this change was brought about

in Maharashtra in 1994, itself.

37. If  the  facts  of  the  present  case  are  averted  to,  the  aforesaid  is

exactly what has been done under the Partition Deed.  A provision was

made for  the marriage  of  the daughters.   In  fact,  the provision is  for

education and marriage purposes.  In the context of where the society is

today, such an endeavour should be commended as salutary, rather than

be frowned upon.  It was sustainable in law then, and it is more than just

merely sustainable in law now.  Thus, 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.

38. It may also be noticed the fact that 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

28

included even  in  the  family  unit  in  terms  of  the  definition  contained

under Section 4, which reads as under: “Section 4 - Land held by family unit (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.

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.

(2) For the purposes of this section, all declarations of dissolution of  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 the purposes of  determining the ceiling area to  be held by a  family unit,  be ignored; and accordingly, the land held by each spouse shall  be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is  dissolved  before  or  after  that  date),  and  shall  be  taken  into consideration in determining the ceiling area of a family unit.”

29

The question of including the  daughters  would only arise if  the

document of partition deed was found to be fraudulent.  Thus, for this

reason also, the property cannot be included and clubbed with the land of

late Vithaldas.

39. As observed above, the form of the document is not important in

this behalf.  Such provision can be made in a partition deed.  It may be in

the nature of a gift.  So what?  None of the members of the family have

ever sought to assail or challenge the same.  It is with the consensus of

the family,  apart  from the legality of  the same.   The judgment of  the

Kerala High Court in  Ponnu & Anr. v. Taluk Land Board, Chittur &

Ors.,19may also be referred to, where, while dealing with 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 being construed as a gift.  The

provisions  of  Section  122  of  the  Transfer  of  Property  Act,  1882

(hereinafter  referred to  as  the ‘TP Act’),  read with Section 123,  were

discussed.   A gift,  being  a  transfer  of  property  made  voluntarily  and

without consideration, has to be made by a registered instrument.  A gift

is essentially a transfer.  Thus, even if there were no pre-existing rights, it

19 (1981) KLT 780

30

could be a valid gift, so long as  the  said requirements are met.  In the

facts  of  that  case,  the  partition  deed  was  not  even  between  the  joint

owners  or  co-owners,  but  between  the  persons  who  owned  the  land

exclusively and another person who held no existing title or right.  It was

held that a tribunal could go behind and look at the real nature of the

transaction.  Reliance was placed on Made Gouda v. Chenne Gowda,20

where a person who was not a co-owner was also a party to a transaction,

and it was held that the transaction in regard to that particular item of

property was really a gift and, thus, the requirements of a valid gift deed

should be met.  Similarly, in  Ramaswami Pattamali v. Lakshmi21, on a

proper understanding of a transaction, the document was construed as a

composite deed of partition and assignment.  Also, in   Namburi Basava

Subrahmanyam v. Alapati Hymavathi & Ors.22, while deciding whether

the document in question was a will or a settlement, it was held  held that

the  nomenclature  of  the  document  is  not  conclusive,  and  instead  its

substance would be determinative .  In a nutshell,  the view is that too

much  importance  should  not  be  attached  to  the  nomenclature  of  a

document  and  one  can  look  behind  the  façade  of  the  document  to 20 AIR 1925 Mad 1174 21 AIR 1962 Ker 313 22 (1996) 9 SCC 388

31

decipher the true nature of the transaction.

40. The  aforesaid  enunciation  of  the  law  reflects  the  correct  legal

position.  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.

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 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.

42. In the end, it may be noted that the only aspect on which the debate

occurred was the share of the two elder daughters, and the right to retain

the land as their separate land, without it being adjusted with the lands of

late Vithaldas.  The findings above, thus, lead to the conclusion 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, and the subsequent view by

32

the appellate authority faulted on more than one reason,  as mentioned

aforesaid.   The further  imprimatur of  that  view by 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 learned single

Judge and the Division Bench are, thus, liable to be set aside and the

view taken by the SDO, restored, qua the lands located in Survey Nos.12

& 14 of Babhulgaon, giving rights to the two elder daughters, who are

the appellants in the present proceedings.

44. If  any  consequential  orders  are  to  be  passed  by  the  competent

authority, arising from the aforesaid finding, the needful be done within a

period of two months of the order being placed before the said authority.

45. The appeal  is  accordingly allowed.  The parties are left  to bear

their own costs.

...……………………………J. [Sanjay Kishan Kaul]

New Delhi. August 29, 2019.

33

1    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 6006 OF 2009  

VITHALDAS JAGANNATH KHATRI (DEAD)THROUGH  

SHAKUNTALA ALIAS SUSHMA & ORS.      …APPELLANTS(S)    

VERSUS  

 STATE OF MAHARASHTRA & ORS       …RESPONDENT(S)  

J U D G M E N T    

K. M. JOSEPH, J.        1. Having perused the judgment authored by Brother  

Justice Sanjay Kishan Kaul, notwithstanding the highest  

respect that I maintain for him, I express my inability  

to concur with his judgment.  

2. This appeal is filed by the appellants against the   

judgment of the High Court of Bombay, dismissing the  

appeal filed by their father, Late Shri Vithaldas and  

their mother and confirming the judgment of the Learned  

Single Judge in the Writ Petition filed by their  

parents and also the order of the Tribunal under the

2    

Maharashtra Agricultural Lands (Ceiling on Holdings)  

Act, 1961 hereinafter referred to as the Act.   

3. Late Shri Vithaldas was married and had three  

daughters and a son. He purported to enter into a  

partition which was registered on 31.01.1970. At the  

heart of the controversy in this case, is the allotment  

of 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 at the  

time of partition, and the question is whether 31 acres  

and 29 guntas of land allotted to them is to be excluded  

from the account of the family unit of Shri Vithaldas  

in determining the surplus land under the Act.   

Appellants 3 and 4 before this Court are the son and  

the third daughter of Late Shri Vithaldas.   

4. Vithaldas filed a return under Section 12 of the  

Act on 02.10.1975. The authority passed an order  

declaring the total holdings of Vithaldas to be 118  

acres and 17 guntas. 60 acres and 27 guntas were held  

to be surplus land and in excess of the ceiling area.

3    

The Tribunal dismissed the appeal filed by Vithaldas  

as also cross objections by the State. By order dated  

02.03.1982, the writ petition filed by Shri Vithaldas  

came to be allowed on the score that principles of  

natural justice were violated.  Thereafter, the Sub-

Divisional Officer passed order dated 07.05.1984  

whereunder he excluded the land given to his elder  

daughters, viz., Shakuntala and Durga Devi, under the  

partition deed. The land which is allotted to the elder  

daughters by the partition deed, was comprised in  

village Babulgaon. It comprised of a total 31 acres 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 further found 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 the  

same to 54 acres, (the limit for the lands in question)  

the family unit was found entitled to hold 60 acres and  

15 guntas. It was further found that 59 acres and 35  

guntas were deemed to be surplus land under Section  

3(2) of the Act. The land gifted to his wife Kamla Devi  

by Shri Jagannath Khatri (fathr of Vithaldas) was found

4    

as having remained with him (the donor) and his name  

appeared in the record of rights. Thus, after excluding  

the 31 acres and 29 guntas of land, allotted to the  

elder daughters and the land which was gifted to the  

wife of Vithaldas but continued to be in possession of  

the donor, the total land was 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 daughter of Vithaldas.  

6. The State of Maharashtra, on the other hand, filed  

cross objections. The subject matter of the cross  

objection was as follows:  

Land gifted to Kamla Devi, wife of  

Vithaldas was wrongly excluded from the  

account of the family.  

Thereafter, in regard to the partition  

deed which is the subject matter of the  

controversy before us, the following is stated  

in the cross-objections:-  

The State objects to the partition deed at the

5    

record page No. 71 on following counts-  

i.The unnatural partition of minor sister is  

resorted to when the natural guardians are  

alive and nothing untowards is proved against  

them.  

ii.That instead of the present appellants who is  

the father of the minors and major and de facto  

guardian; the present partition deed shows the  

guardianship with Jagnnath Khatri who is the  

grandfather of the minors.  

iii.The female child although gets the right to  

inherit the succession “opens” for her only on  

the death of the parents. Thus the partition  

deed is un-natural and against the sequence of  

Hindu Act of Maintenance.  

These are the national Acts passed by  

Parliament. The unnaturally therefore needs to  

be done away with.  

The entire area with the appellants, wife and  

appellants are to be clubbed together as per  

the definition of the family unit.  

6    

7. In the reply filed by Shri Vithaldas and his wife  

to the cross-objections, in so far as it is related to  

the partition, it was stated as follows:  

The appellants further denied the contention  

raised by the Respondent State so far as the  

partition or allotment of share to the  

daughters is concerned. The nomenclature is  

immaterial one. The factum of possession and  

cultivation is material one. The learned Sub  

Divisional Officer has rightly excluded the  

Survey Nos. 13 and 14 of Babalgaon from  

counting in the holding and the said finding  

need not any interference from this Tribunal.  

The contention raised in this ground are  

denied.  

8. The Tribunal dismissed the appeal filed by the  

appellants and allowed the cross objections.  

Resultantly, the land, which is the subject matter of  

partition deed and which stood allotted to the elder  

daughters and the property which was the subject matter  

of gift deed in favour of his wife came to be included

7    

in total land holding of the family. The total extent  

of land was found to be 181 acres and 26 guntas. 111  

acres and 39 guntas were declared surplus land.  

9. Shri Vithaldas and his wife challenged the order  

before the High Court. Therein, appellants 1 and 2  

before us were respondents 6 and 7. Appellants 3 and 4  

before this Court were respondents 4 and 5. The learned  

Single Judge, by judgment, upheld the order of the  

Tribunal, in regard to viz., the property, which was  

subject matter of the gift in favour of the second  

appellant (wife) and the properties which were set  

apart for the two elder daughters. On the basis of an  

error determined by the learned Single Judge, the  

surplus land was held to be 103 acres and 36 guntas.  

It was Shri Vithaldas and his wife who preferred the  

Letters Patent Appeal No. 3 of 1991. By judgment dated  

27.11.2007, which is impugned in this appeal, the  

Division Bench upheld the view taken by the learned  

Single Judge. His wife Smt. Kamladevi, though the 2nd  

appellant before the High Court is made a proforma  

respondent.   

8    

10. It is relevant to consider the findings of the  

Tribunal:  

In regard to the partition deed dated  

31.01.1970, the contention of the State was  

that the daughters were not coparceners.  

They had no right to share in partition of  

ancestral property. Their right opened only  

upon the death of the father. The partition  

was attacked as unnatural. His wife, who  

was entitled to a share, was not given any  

share. The grandfather was shown as the  

guardian of the minor children though both  

the parents were living. The contention of  

the appellants was noted that what is  

material is the factual position as to  

cultivation. The Ceiling Authorities are  

not entitled to go behind the partition  

which took place before 26.09.1970. If the  

appellants-Vithaldas was not holding these  

lands on 26.09.1970 and thereafter, they  

could not be included.   

9    

11. Reliance was placed on the judgment of the Bombay  

High Court:       

“In the first place it is contended that  

Kiran the major unmarried daughter who is  

not included in the concept of “Family  

unit” under Section 4 of the Act was  

entitled to share on partition of the  

ancestral and joint family property and  

therefore, land to the extent 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 stated to be  

rejected. Hindu Law is clear what only  

certain females such as wife, widow, widow  

mother, grand mother only are entitled to  

share on partition. Unmarried daughters  

major or minor, married or unmarried does  

not belongs to that category of females.”  

12. Reliance was also placed on judgment in Writ  

Petition No. 2791 of 1976 by the Nagpur Bench of the  

Bombay High Court. Therein it was found that the High  

Court had ignored a partition with the declarant’s  

mother, by registered partition deed dated 09.01.1970.  

13. The appellants-elder daughters, who were allowed  

shares in partition, were found to be minors.  

Shankuntala, whose date of birth was 03.11.1955 was 14  

years of age and Durga Devi, whose date of birth is  

29.08.1957, was 12½ years old, when the partition was

10    

effected on 31.01.1970.  

14. Vithaldas continued to be the owner as title had  

not passed to the two daughters by a legally valid  

instrument.  

15. As far as the actual possession was concerned, the  

Crop Statement in respect of Survey No. 14 for the year  

1970-1971 and 1971-1972, showed the cultivation by  

Vithaldas. For the years 1972-1973 to 1974-1975, it was  

shown as jointly cultivated by Vithaldas and daughter  

Durga Devi.  

16. In respect of Survey No.12, the property allotted  

to daughter Shakuntala, it was found that it was being  

cultivated by Vithaldas along with daughter Shakuntala.  

17. That crop statements for other years were not filed  

it was noted. Ludicrous it was found that the minor  

daughters had the necessary wherewithal to cultivate  

the land independently. It was found that Vithaldas  

continued to hold the lands.   

18. The writ petition was filed, viz., [Writ Petition

11    

No. 111 of 1985] 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 the  

Tribunal. The learned Single Judge has proceeded to  

uphold the findings of the Tribunal except as we have  

noticed.  

19. Learned Single Judge referred to Bhagwandas Heda  

and others v. State of Maharashtra and others1, and the  

decision in Writ Petition No. 2997 of 1976, and  

thereafter, proceeded to hold as follows:  

“8. Moreover, it may be seen that  

although the respondents 6 and 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. In fact, their father, was,  

therefore, in possession of their alleged  

shares in field S.No.14 of village  

Babhulgaon and the crop statements for the  

years 1970-71 and 1971-72 show his  

cultivation, 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 the father  

Vithaldas along with his daughter  

                                                 1 1983 Mh. L.J. 825  

12    

Shakuntala is shows as jointly cultivating  

the said filed. AS regards filed Survey No.  

14 for the years 1970-71 and 1971-72  

Vitthaldas is shown to have cultivated the  

said field. It is on the basis of these  

facts that the learned M.R.T. held that the  

petitioner Vithaldas was holding field  

survey no. 12 admeasuring 17 acres 28  

gunthas and survey no. 14 admeasuring 14  

acres 6 gunthas of village Babulgaon, which  

is alleged to be allotted to the shares of  

the respondents 6 and 7, respectively, in  

the alleged partition deed dated 31-1-1970.  

In my view, the above finding is correct,  

or not any rate cannot be said to be  

perverse on the basis of the evidence on  

record in the instant case. It, therefore,  

deserves to be upheld.”  

Though the appeal was filed before the Division  

Bench, by Shri Vithaldas (appellant No.1) and his wife,  

during the pendency of the appeal Vithaldas passed  

away.  Thereafter, the impugned judgment would show  

Respondents 4 to 7 as LRs of appellant No.1.  

20. Before the Division Bench, attention of the  

judgment in this regard in Uttar Chand (Dead) by Lrs.  

v. State of Maharashtra and another2, was invited. The  

said judgment will be referred to later on. The State  

                                                 2 AIR 1980 SC 806

13    

pointed out that the partition involved in the said  

case decided by this Court was among persons who had  

an existing interest in the property. The fact that  

wife of Vithaldas who had a right in the partition was  

not given a share, was taken note of. The argument of  

the State was that the partition deed did not effect  

any transfer in favour of the elder daughters, and  

therefore, there was no question of recognizing any  

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, in 1970,  

there could be no question of daughters  

being entitled to a share of family  

properties in a partition during the  

life-time of their parents. Further,  

showing father of appellant No. 1, as  

their guardian in such a partition,  

would not result in severing them from  

the appellants' family. Had appellant  

No.1 so wished, he could have gifted the  

properties to respondent Nos.6 and 7,  

but that too would not have mattered so  

long as respondent Nos.6 and 7 continued  

to be a part of his family. The judgment  

of the Supreme Court in Uttar Chand v.  

State of Maharashtra, reported at AIR  

1980 SC 806, on which the learned  

Advocate for the appellants places

14    

reliance, does not help the  appellants,  

since in that case, the Apex Court was  

considering actual transfers 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 extracts of the fields in  

question show that they were in joint  

cultivation of appellant No.1 and his  

daughters right up to the year 1975.  

10. It is not necessary to dissect  

the expression used by the Tribunal  

while discussing the effect of these  

transfers. As held in the judgment of  

this Court in Dadarao v. State of  

Maharashtra, reported at 1969 Mh.L.J.  

813, on which the learned Advocate for  

the appellants has placed reliance,  

such partition may be valid or invalid  

as between the parties. The question is  

whether it is to be recognized for the  

purpose of determining the ceiling area  

or not. Herein, since there was no  

transfer by the instrument dated 31-1-

1970 in favour of respondent Nos.6 and  

7, there was no question of recognizing  

and transfer for the purpose of  

determining surplus land of appellant  

No.1.   

11. The learned Advocate for the  

appellants submitted that the partition  

had not been questioned by the concerned  

members of the family and, therefore,  

there was no reason whatsoever for  

ignoring such partition. He submitted  

that the question whether respondent

15    

Nos.6 and 7 were entitled to a share in  

such partition, could have been  

agitated only by respondent No.4  

Anilkumar and appellant No.2 Kamladevi  

and it was not open for the State to  

question the rights created in favour  

of respondent Nos.6 and 7 by a document  

dated 31-1-1970.  

12. This fallacious contention was  

rightly repelled by the learned AGP by  

pointing out that the State was as much  

an interested party as the family  

members, because operation of the  

provisions of the Act entitled the State  

to secure the surplus land for the  

purpose of their distribution. If the  

argument of the learned Advocate for the  

appellants were to be accepted,  

fictitious transfer, in which the  

transferor or the transferee had no  

dispute, would have taken out the entire  

surplus land out of the provisions of  

the Act. Therefore, this contention of  

the learned Advocate for the appellants  

has to be rejected.”  

22. As regards the flaw in entertaining the cross  

objection filed by 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, 1908 was to  

be followed. It was found that the observation of the  

Tribunal about State not being required to pay court  

fee, was not proper but non-payment of court fee was

16    

not a matter over which a litigant could take  

advantage. State could approach the Tribunal to make  

the deficiency good.  Thereafter, the question was  

posed whether the Tribunal could have entertained the  

cross objection which affected the rights of the elder  

daughters without their presence in the party array  

before the Tribunal.   

23. The High Court dealt with the judgments of the High  

Court of Judicature at Allahabad in Kundomal Ganga Ram  

v. Topamal Chotamal3 and Malireddi Venkatapathi and  

others v. Malireddi Veerayya and others4 for the  

principle that a respondent maintaining cross objection  

could do so after a person affected by the cross  

objection was brought on the party array and proceeded  

to hold as follows in paragraphs 21 and 23:   

“21. We have carefully considered  

these submissions. Apart from the question  

whether respondent Nos.6 and 7 had any  

right in the concerned fields, it seems to  

us that there was absolutely no possibility  

of their rights, if any, being  

prejudicially affected by inclusion of  

concerned lands in the holding of appellant  

No.1. It would be appellant No.1, who would  

stand to lose corresponding acreage after  

                                                 3 AIR 1953 Allahabd 710  4 AIR 1943 Madras 609

17    

adjusting the claims of respondent Nos.6  

and 7, if he was so keen to ensure that  

they got what he desired to give them. The  

order passed by the Tribunal was not one  

directed against respondent Nos.6 and 7,  

but was one which affected the rights of  

the appellant. There is no similarity with  

the facts of the unreported judgment in the  

case of Balkrishna Maharaj Mandir, referred  

to above, because in that case, Tarasingh  

was a tenant, who was also a party before  

the Surplus Land Determination Tribunal.  

Therefore, we do not find any force in the  

submissions made on behalf of the  

appellants as the proxy of respondent Nos.6  

and 7.  

xxx   xxx   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 and the learned Single Judge  

did was to take into account the fact that  

lands continued to be with appellants as  

there was no severance of respondent Nos.6  

and 7 from appellants’ family. As for  

court-fees on cross-objection, though we  

disapprove observations of the Tribunal,  

the defect is curable and cannot help  

appellants in pocketing a chunk of land,  

which should become available to the State  

for distribution. Respondent Nos.6 and 7  

were not necessary parties to the cross-

objection, first, because of absence of  

subsisting interest in the properties, and  

secondly, because appellants could be  

trusted to take care of their daughters’  

interests from their own property, rather  

than resorting to what may be proverbially  

described as “Robbing Peter to pay Paul”.  

Lastly, claim for exclusion of field survey  

no.106 of Sawangi, contending that the gift  

dated 20-1-1955 was not actually received,

18    

while at the same time taking a  

diametrically opposite stand about document  

dated 30-1-1970, amounts to blowing hot and  

cold in the same breath.”    

And on this basis the appeal came to be dismissed.  

CONTENTION OF THE APPELLANTS   

24. The arguments addressed by the learned senior  

counsel for the appellants run thus:   

There was a partition entered into and  

registered on 31.01.1970. Thereunder, certain  

lands have been set apart to the daughters of Shri  

Vithaldas. Shri Vithaldas had three daughters and  

one son besides his wife. All the three daughters  

were minors as on 31.01.1970. The commencement day  

is 02.10.1975. The elder daughters turned major  

prior to the appointed day. Therefore, having  

regard to the meaning of the words “family unit”,  

as contained in Section 4 of the Act, the property  

held by the elder daughters, which were acquired  

under the registered partition deed dated  

31.01.1970, must be excluded in calculating the  

land holding by the family unit. He seeks to

19    

buttress his position by pointing out that the  

Legislature has fixed the cut off date after which  

partition deed would be ignored for the purpose of  

calculation of the ceiling limit.  Indeed, Section  

11 of the Act, declares that any partition after  

the 26th Day of September, 1970 shall be deemed  

unless the contrary is proved to have been made in  

anticipation or in order to avoid or defeat the  

objective of the Amending Act, 1972 and shall  

accordingly be ignored. Consequently, the land  

covered by such partition 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 which again contemplates 26.09.1970 as the  

date beyond which transfers would be held to be  

infirm as executed for defeating the object of the  

Amending Act, 1972. Section 10 of the Act further  

proceeds to declare that the ceiling account will  

be determined ignoring such transfers. As far as  

Section 8 of the Act is concerned, it is directed  

against transfer made on or after the commencement  

date, viz., 02.10.1975. The explanation supplies

20    

the meaning of the word “transfer” for the purpose  

of this Section in a most wide manner and I need  

not be detained further by the contours of the said  

definition.  

The argument of the appellants is that the  

Legislation in question is expropriatory.  

Therefore, such a Statue must be interpreted, no  

doubt, by giving full play to the express  

provisions but it cannot go beyond the same. In  

other words, having regard to the fact that the  

partition deed, at the heart of the controversy in  

this case, is executed and registered on 31.01.1970  

much before even 26.09.1970 and many years before  

the commencement day, the partition deed must be  

given full operation resultantly. Properties,  

which stood allotted to elder daughters under the  

partition deed, must be excluded from the account  

of the family unit as by the said day, the elder  

daughters had become major, and could no longer be  

members of the family unit.   

25. It is contended by the learned senior counsel for

21    

the appellants that there is no case for the  

respondent-State that the partition was a collusive  

one. The further contention raised by the learned  

senior counsel for the appellants is that the Tribunal  

acted illegally in allowing the cross objection of the  

respondent-State and thereafter holding that the  

partition deed dated 31.01.1970 is to be ignored.   

26. The learned counsel for the appellants has  

contended that a legal fiction should not be extended  

beyond the purpose for which it was created. In this  

regard, appellants relied on the following case law –  

Bihar Immunity Company Ltd. v. State of Bihar and  

Others5; Commissioner of Income-Tax v. Bombay City I,  

Bombay v. Amarchand N. Shroff by his heirs and legal  

Representatives6; Commissioner of Income Tax, Kanpur v.  

Mother India Refrigeration Industries (P)Ltd.7;  

Bijender Singh v. State of Haryana and another8.   

27. It is also sought to be contended that the purpose  

of the legal fiction is to be ascertained from the  

                                                 5 (1955) 2 SCR 603  6 AIR 1963 SC 1448  7 (1985) 4 SCC 1  8 (2005) 3 SCC 685

22    

plain language of the provisions that creates it (See  

Commissioner of Income-Tax, Delhi v. S. Teja Singh9).   

28. Irrespective of how beneficial the object of the  

Statute may be, the deeming fiction cannot be extended  

beyond the purpose of creating the fiction (See  

Mancheri Puthusseri Ahmed and Others v. Kuthiravattam  

Estate Receiver10).   

29. Still further, it is contended that while  

interpreting the deeming fiction, recourse to the  

object of the Statute would be permissible only where  

the language is ambiguous (See (2009) 1 SCC  540).  

There can be no quarrel with these principles.   

CONTENTIONS OF THE STATE  

30. Per contra, the learned counsel for the respondent-

State would seek to support the order of the High Court.  

He would point out that despite and notwithstanding the  

so-called partition deed dated 31.01.1970, it was the  

father who continued to be in possession and to take  

the income. He was equally carrying out the  

                                                 9 AIR 1959 SC 352  10  (1996) 6 SCC 185

23    

cultivation. Partition deed, therefore, was a ruse and  

it is not to be taken into account for determining the  

extent of the land and the land seemingly allotted to  

the elder daughters must also be taken into  

consideration which is what has been done by the  

Tribunal and approved of by the High Court. He would  

point out that the court must lose sight of the fact  

that the Legislation is a beneficial Legislation  

intended to empower the landless by endowing them with  

property rights over land and the judgment of the High  

Court does not warrant interference.   

THE ‘ACT’: SINCE ITS ENACTMENT AND CHANGES RELEVANT TO  

THE CONTROVERSY  

31. It is necessary to appreciate the scheme of the  

Act. The Act was enacted in the year 1961.  Section  

2(4) defined the appointed day as meaning “the day on  

which this Act comes into force”.  The Act as such came  

into force on 26.01.1962. It is relevant to note that  

drastic changes have been brought about subsequent to  

the enactment in 1961. To understand its impact, the  

provisions of Sections 3, 4 and 5 as originally enacted

24    

are referred to here under: -   

Section 3 read as follows: -  

“In order to provide for the more  

equitable distribution of agricultural  

land amongst the peasantry of the State  

of Maharashtra (and in particular, to  

provide that landless persons are given  

land for personal cultivation), on the  

commencement of this Act, there shall be  

imposed to the extent, and in the manner  

hereinafter provided, a maximum limit (or  

ceiling) on the holding of agricultural  

land throughout the State.”  

Section 4 read as follows:-  

“4(1) Subject to the provisions of this  

Act, no person shall hold land in excess  

of the ceiling area, as determined in the  

manner hereinafter provided.  

Explanation.- A person may hold exempted  

land to any extent.   

(2) Subject to the provisions of this Act,  

all land held by a person in excess of  

the ceiling area, shall be deemed to be  

surplus land, and shall be dealt with in  

the manner hereinafter provided for  

surplus 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 land in excess of  

the ceiling area, shall on or after that  

day transfer or partition any land until  

the land in excess of the ceiling is

25    

determined under the Act;  

Explanation.- In this Section “transfer”  

means transfer by act of 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 inter-vivos.”  

The appointed day, it has been noticed was the  

26th day of January, 1962.  

“9. No person shall, at any time on or  

after the appointed day, acquire by  

transfer or partition any land, if he  

already has land in excess of the ceiling  

area, or land which together with any  

other land already held by him will exceed  

in the total the ceiling area.  

Explanation.- In this section, “transfer”  

and “partition” have the same meaning as  

in Section 8.”  

Section 12 fell under Chapter IV under Chapter  

Heading Surplus Land and it provided for filing  

returns.  

Reference is made to the far-reaching changes which  

were brought out by the Maharashtra Act No. XXI of  

1975. The preamble reads as follows:  

“WHEREAS, in the State of Maharashtra,  

the Maharashtra Agricultural Lands  

(Ceiling on Holdings) Act, 1961 imposed

26    

for the first time, in the public interest  

the maximum limit (or ceiling) on the  

holding of agricultural land, and  

provided for the acquisition of land held  

in excess of the ceiling for distribution  

thereof amongst the peasantry of the  

State, and in particular, among landless  

persons; and for other purposes therein  

stated;  

AND WHEREAS, it is now expedient to lower,  

in the public interest, the maximum limit  

(or ceiling) on the holding of  

agricultural land in the State for making  

available additional land as surplus, so  

as to secure a still more equitable  

distribution of land, and for the purpose  

of removing economic disparities, and  

thereby for assisting more effectively  

landless and other persons; and generally  

for the purpose of so distributing the  

agricultural resources of the community  

as best to subserve the common good, and  

also to prevent the concentration of the  

means of agricultural production and  

wealth to the common detriment.”  

(Emphasis supplied)  

It was to come into force on such day, as it was  

notified. It came into force from 19/09/1975.  

32.  Section 2(6A) of the Act defines the “commencement  

date” to mean the 2nd Day of October, 1975.   

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

“2(11) “family” includes, a Hindu  

undivided family, and in the case of other  

persons, a group or unit the members of

27    

which by custom or usage, are joint in  

estate or possession or residence;”  

34.  Section 2(14) is relied upon by the learned  

counsel for the State and it defines the words “to hold  

land”:   

“2(14)“to hold land”, with its grammatical  

variations and cognate expressions, means to  

be lawfully in actual possession of land as  

owner or as tenant; and “holding” shall be  

construed accordingly;    

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 holding the land as  

occupant, 4[or superior holder as defined  

in the Code], or as lessee of Government,  

a mortgagee-in-possession, and a person  

holding land for his maintenance;”  

36.  Section 3(1) contains the actual prohibition in  

the matter of holding 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, hold land in excess of the ceiling  

area, as determined in the manner  

hereinafter provided.  

Explanation.–A person or family unit may  

hold exempted land to any extent.”

28    

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 a  

person 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 such person 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) or (d) above]  

exceeds the ceiling area on or before  

he commencement date or on any date  

thereafter (hereinafter referred to as  

the relevant date), then for the  

purpose of determining the ceiling area  

and the surplus land in respect of that  

holding, the share of such person in  

the land aforesaid shall be calculated  

in the following manner :–   

(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 determined so that each  

member who is entitled to a  

share on partition, shall be  

taken to be holding  

separately land to the  

extent of his share, as if  

the land had been so divided

29    

and separately held on the  

relevant date;  

(ii) in the land held in or  operated by a co-operative  

society or held jointly with  

others or held by a firm,  

the share of the person  

shall be taken to be the  

extent of land such person  

would hold in proportion of  

his share in the co-

operative society, or his  

share in the joint holding  

or his share as partner in  

the firm, as if the land had  

been so divided and  

separately held on the  

relevant date.”  

38. Section 5 provides for “ceiling area”.  Section  

5(1) and 5(2) reads as follows:    

“5. Ceiling Area.- (1) In each of the  

districts and talukas specified in column  

1 of the First Schedule, for each class of  

land described in columns 2, 3, 4, 5 and 6  

thereof, the ceiling area shall be the area  

mentioned under each such class of land  

against such district or taluka.  

(2) If a person, or a family unit,  

holds land of only one class, the ceiling  

area for his or its holding shall be the  

ceiling area for that class of land.”  

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

which substituted the earlier provisions:  

30    

“8.Restrictions on transfer.- Where a person,  

or as the case may be, a family unit holds  

land in excess of the ceiling area on or after  

the commencement date, such person, or as the  

case may be, any member of the family unit  

shall not, on and after that date, transfer  

any land, until the land in excess of the  

ceiling area is determined under this Act.  

Explanation.–In this section, “transfer”  

means transfer, whether by way of sale,  

gift ,mortgage with possession, exchange,  

lease, assignment of land for maintenance,  

surrender of a tenancy or resumption of  

land by a landlord or any other  

disposition, whether by act of parties made  

inter vivos or by decree or order of a  

court, tribunal or authority(except where  

such decree or order is passed in a  

proceeding which is instituted in such  

court, tribunal or before such authority  

before the 26th day of September 1970), but  

does not include transfer by way of sale or  

otherwise of land for the recovery of land  

revenue or for sums recoverable as arrears  

of land revenue, or acquisition of land for  

a public purpose under 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 or after the commencement  

date, acquire by transfer any land if he,  

or as the case may be, the family unit  

already holds land in excess of the ceiling  

area or land which together with any other  

land already held by such person, or as the  

case may be, the family unit, will exceed  

in the total the ceiling area.  

Explanation.–In this section, transfer has  

the same meaning as in section 8.  

31    

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.  

Explanation. – For the purposes of clause  

(a) ‘ transfer ‘ has the same meaning as in  

section 8.  

32    

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 therefor, 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

33    

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.  

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 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 provision 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.”  

40. Section 12 falling in Chapter IV deals with  

submission of returns and provides for submission of  

returns. Section 12(1) reads as follows:   

“12: SUBMISSION OF RETURNS – [If any  

person or family unit -  

(1)(a) has at any time after the 26th day  

of September 1970 but before the  

commencement date held, or  

(b) on or after the commencement date  

acquires, holds or comes into possession

34    

of, any land (including any exempted  

land), in excess of the ceiling area, or”  

41. Section 14 provides for the power of the Collector  

to hold inquiry:   

“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 person2[or  

family unit] holding and in excess of the  

ceiling area, and shall, subject to the  

provisions of this Chapter, determine the  

surplus land held by such person2[or family  

unit.  

(2) Where a person or family unit holds  

land in two or more talukas of the same  

district, the enquiry shall be held by such  

officer or authority exercising the powers  

of the Collector whom the Collector-in-

charge of the district may by order in  

writing designate.  

(3) Where a person4[or family unit]  

holds land in two more districts of the  

same division, the enquiry shall be held by  

the Collector whom the Commissioner may, by  

order in writing, designate.  

(4) Where a person4[or family unit]  

holds lands in different divisions, the  

enquiry shall be held by the Collector whom

35    

the State Government may, by order in  

writing, designate.5[(4A)Where a person  

holding land in an industrial undertaking,  

the enquiry may be held by the Collector  

whom the State Government may, by order in  

writing, designate].(5)The Collector so  

designated, shall for the purposes of the  

enquiry, be competent to exercise  

jurisdiction under this Act in respect of  

such person6[or family unit] and the lands  

held by him[or it].”  

42. Section 18 is of vital importance to consider the  

question and it reads as follows:    

“18. Collector to consider certain  

matters.-18.On the day fixed for hearing  

under section 14, or 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-

36    

operative society or held jointly  

with others or held as a partner  

in a firm; and the extent of such  

share;  

(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  

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 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

37    

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 by1[the holder]  

should be entitled as 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.”   

43. Section 21 provides that the Collector is to make  

a declaration regarding 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  

“Distribution of 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

38    

the order or award of the Collector, before the  

Maharashtra Revenue Tribunal. Since it may have a  

bearing on the argument based on the illegality  

committed by the Tribunal allegedly in allowing the  

cross objection, it is referred to and it reads as  

follows:    

“33. Appeals.- (1)An appeal against  

an order or award of the Collector shall  

lie to theMaharashtra Revenue Tribunal in  

the following cases :–  

(1) an order under sub-sections (2)  

and (3) of section 131[not being  

an order underwhich a true and  

correct return complete in all  

particulars is required to be  

furnished;  

(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 under  

section 29;  

(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 cross-

39    

objection 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, shall apply in  

relation to the cross-objection as they  

apply in relation to the cross-

objection 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 may  

be, 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).”  

49. The power of the Tribunal is provided under Section  

34, which reads as follows:   

“34. Power of Maharashtra Revenue  

Tribunal to confirm, etc.-.The  

Maharashtra Revenue Tribunal, in

40    

deciding an appeal under 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 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 40uthorized 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  

Mamlatdar’s Court Act, 1906.(Bom.II of  

1906)”   

51. No doubt, Section 44(B) excludes pleaders, etc..  

It reads as follow:     

“SECTION 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 Authorised Officer, the Tribunal, the  

Collector, the Commissioner, the State  

Government or the Maharashtra Revenue  

Tribunal:  

41    

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.”  

52.  Among the changes that have been ushered in the  

definition clause, the following are noted: -   

In section 2, sub-Section(5A) was added and it  

defined ‘Code’ to mean Maharashtra Land Revenue Code,  

1966 and sub-section 6A, which was added as the  

‘commencement date’ means date on which the Amending  

Act, 1972, comes into force. Section 2 (11A) was  

inserted and it purported to define ‘family unit’ to  

mean family unit as explained in Section 4.    

In Section 2(20), definition of ‘member of a  

family’ was substituted 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, sons’s son, son’s unmarried  

daughter, son’s divorced and dependent  

daughter.”  

42    

A completely different Chapter came to be inserted  

as Chapter II. This was done by way of substitution of  

the earlier Chapter, the Chapter contained in the Act  

prior to the amendment.   

53.  The following questions would arise for  

consideration by the Court:-    

1. Whether the authorities under the Act have the  

power to find that the partition entered into  

before 26.9.1970, was sham or collusive and thereby  

ignore the same?  

2. Notwithstanding the registered partition dated  

31.01.1970, whether the property allotted to the  

elder daughters of Shri Vithaldas is liable to be  

included in the account of the family unit?  

3. What is the effect of the cross-objections of the  

State being allowed in the absence of elder  

daughters, in the appeal before the Tribunal?  

POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION  

PRIOR TO 26.09.1970  

54. In order to appreciate the intention of the

43    

Legislature in this regard, 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 word “transfer” must be understood, as describing,  

cases where under the law, by means of the devices  

mentioned in the Explanation to Section 8, the previous  

owner ceases to be the owner and the transferee  

acquires his rights. 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

44    

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.   

55. I have noticed the matters to be considered by the  

Collector under Section 18 of the Act. Apart from  

clauses (a) and (b), he 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 (l) 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 has power and it becomes his duty, in fact,  

to ascertain what is the area held on the appointed  

day, viz., 02.10.1975. I have noticed that 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,

45    

“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. The word ‘occupant’ is  

defined with reference to its definition in the code.  

It is noteworthy that the word ‘owner’ includes the  

specified categories. If a person is owner as it is  

commonly understood, then he is comprehended.  

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.  The same  

is the position with respect to a mortgagee in  

possession and a person who holds land for his  

maintenance.  

56. The Collector, therefore, is duty bound in the

46    

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 mater of gleaning the  

meaning of a Statute and demystifying the words of a  

Statute and discovering the intention of the  

legislation, the court must bear in mind certain  

presumptions. The court will 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. It  

will not begin with the assumption that the Legislature  

is ignorant of the opinions expressed by the courts on   

points of law. It will presume that the Legislature was  

aware of the decisions rendered by the courts on points  

of law.  

57. In Sree Meenakshi Mills Ltd., Madurai v.  

Commissioner of Income Tax, Madras11, this Court had  

occasion to consider what the word “benami” has come  

to denote:    

“30. Now, the assumption underlying  

this argument is that the Tribunal had  

                                                 11 AIR 1957 SC 49

47    

found in its order that the intermediaries  

were benamidars for the appellants, but  

there is no basis for this in the order. In  

this connection, it is necessary to note  

that the word ‘benami’ is used to denote  

two classes of transactions which differ  

from each other in their legal character  

and incidents. In one sense, it signifies  

a transaction which is real, as for example  

when A sells properties to B but the sale  

deed mentions X as the purchaser. Here the  

sale itself is genuine, but the real  

purchaser is B, X being his benamidar. This  

is the class of transactions 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  

purports to sell his property to B without  

intending that his title should cease or  

pass to B. The fundamental difference  

between these two classes of transactions  

is that whereas in the former there is an  

operative transfer resulting in the vesting  

of title in the transferee, in the latter  

there is none such, the transferor  

continuing to retain the title  

notwithstanding the execution of the  

transfer deed. It is only in the former  

class of cases that it would be necessary,  

when a dispute arises as to whether the  

person named in the deed is the real  

transferee or B, to enquire into the  

question as to who paid the consideration  

for the transfer, X or B. But in the latter  

class of cases, when the question is  

whether the transfer is genuine or sham,  

the point for decision would be, not who  

paid the consideration but whether any  

consideration was paid. …”  

(Emphasis supplied)

48    

58. In Kalwa Devadattam and others v. The Union of  

India and others12, the matter arose under Sections 25A,  

67 and 30 of the Income Tax Act, 1922. One of the  

questions which arose was whether the partition  

involved in the said case was sham. The High Court  

relied upon the circumstances to find out that the deed  

of partition involved in the said case, though  

registered, was nominal. The object of the partition,  

it was contended, was to protect the interest of the  

minor sons against the father who was not even living  

with the family and was acting to the detriment of his  

sons. Though the deed showed apparently an equal  

distribution of the property into four shares of the  

same value, the property allotted to the share of  

Nagappa was in reality not worth the amount shown. It  

was found that the intention of Nagappa was to make it  

appear to the Income Tax Department that no useful  

purpose will be served by taking steps.  In the course,  

the Court proceeded to hold, inter alia, as follows:   

“14. … The deed of partition was  

                                                 12 AIR 1964 SC 880

49    

undoubtedly executed and was registered,  

but the mere execution of the deed is not  

decisive of the question whether it was  

intended to be effective. The circumstances  

disclosed by the evidence clearly show that  

there was no reason for arriving at a  

partition. Counsel for the plaintiffs  

practically conceded that fact, and  

submitted that Nagappa's desire to defeat  

his creditors, and to save the property for  

his sons, was the real cause for bringing  

the deed of partition into existence.  

Counsel claimed however that Nagappa had  

adopted the expedient of effecting a  

partition with the object of putting the  

property out of the reach of his creditors  

and the genuineness of that partition  

should not be permitted to be blurred by  

the unmeritorious object of Nagappa. But  

the continued management of the property by  

Nagappa since the partition, and the  

interest shown by him in prosecuting the  

suits do clearly support the inference that  

the deed of partition was a nominal  

transaction which was never intended to be  

acted upon and was not given effect to. …”  

(Emphasis supplied)  

59. The Legislature, when it enacted the Act, must be  

presumed to know the state of the law to be that a  

transfer deed by way of a sale or lease or a mortgage,  

may be nothing but a nominal and a sham transaction.  

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,

50    

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  

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.   

60. A sham transaction demonstrated to be one when the  

appointed day dawns must certainly be treated as such,  

and the consequences, that are well-established in law,  

must afflict such a pretense of a transfer or a  

partition. Such a power must indeed vest with the  

Collector under Section 18 read with Section 3 of the  

Act. To deny the Collector such power as the appellants  

would attempt to persuade the court to hold, would  

involve asking the court to take leave of its  

commonsense and to place an interpretation on the

51    

Statute which will result in an absurd, besides an  

unjust situation. The interpretation canvassed by the  

appellants would result in defeating the object of the  

Statute. 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  

Statue, 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.    

61.  Section 30 of the Act sets out the powers of the  

Collector when he holds that inquiry under the Act. It  

declares that the Collector shall have same powers as  

are vested in the courts under the Code of Civil

52    

Procedure, 1908 (hereinafter referred to as ‘the CPC’)  

in trying a suit in respect of the following matters:    

(i) Proof of facts by affidavit;   

(ii) Summoning and enforcing attendance of any person  

and examining him on oath;  

(iii) Compelling the production of documents.   

Under Section 31 of the Act, the Collector is  

obliged to set down reasons for his decision. Thus, 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

53    

in this regard.   

62. The argument of the appellants that the remedy open  

to the State would be to have a suit instituted and  

invite a civil court to adjudicate and pronounce a  

decree declaring a transaction as sham, does not  

commend to me. The Legislature has indeed clothed the  

Collector with jurisdiction and the power to determine  

such questions. It would indeed amount to placing an  

interpretation which would render the Statute  

unworkable. On the other hand, the interpretation that  

if materials exist in the form of oral or documentary  

evidence, which clearly shows that the purported  

transfer or partition prior to 26.09.1970 was a sham  

transaction, the object of the Statute would be  

furthered by allowing the Collector or other  

authorities to decide the matter accordingly.    

63. In Uttar Chand (supra), this Court in fact was  

considering the provisions of the Act where at a time  

when Sections 8, 10 and 12 had not been amended into  

its present avtar. The Act itself exempted lands which  

were acquired or transferred prior to 04.08.1959. This  

was provided in Sections 8, 9 and 12 of the Act, as it

54    

stood. In the said case, 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  

of land was given to his mother by the adopted son.  

This Court held “there was neither any pleading nor any  

case made out either before the Deputy Collector or  

before the Commissioner to indicate that the transfer  

of the lands in favour of the adopted son and the  

transfer by Nemichand in favour of his mother, were  

collusive or tainted by fraud”. The transaction had  

been entered into five years before the Act was brought  

into force. Thereafter, no doubt, this Court went on  

to hold as follows:   

“3. … Even the Act clearly exempts  

lands which may have been acquired or  

transferred prior to 4-8-1959. Ss. 8, 10  

and 12 which deal with the subject clearly  

enjoin that only those transfers would be  

hit by the Act which are made at any time  

on or after 4-8-1959. As both the transfers  

mentioned above were prior to 4-8-1959, it  

is obvious that they fell completely  

outside the ambit of the provisions of the  

Act. The High Court was thus not justified  

in presuming that the transfer made by the  

appellant in favour of his adopted son and  

the transfer by the adopted son Nemi Chand  

to his mother were either collusive or  

fraudulent. There was neither any

55    

foundation in the pleadings nor any  

evidence to support this conjecture of the  

High Court.”  

(Emphasis supplied)  

64.  This was in fact a case where the finding of the  

court is based on there being no foundation in the  

pleadings nor any evidence to support the finding that  

the transactions were collusive or tainted by fraud.  

The transactions had taken place a good five years  

before the Act came into force. On a proper  

appreciation of the decision, though it may be  

contended that the decision should be understood as  

declaring that a transaction, even if it is collusive,  

having been entered into prior to the cut off date, it  

cannot be impeached, it may not be the correct way of  

looking at the decision. If there were pleadings or  

material to support the finding that it was collusive,  

the decision of this Court may not have been the same.  

There being no material to find that the transaction  

was either collusive or fraudulent, necessarily the  

transfer being genuine, there was no provision in the  

Act which extended to invalidate the transaction

56    

entered into five years prior to the Act.   

65.  Section 41 of the Act bars the jurisdiction of a  

civil court with respect to any matter which is to be  

settled, decided or dealt with by the authorities under  

the Act including the Collector and the Tribunal. In  

this view, the bar under Section 44(B) would be  

insufficient to deprive the authority of power to  

declare a sham transfer as such.  

66.   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 could impeach the said  

partition, it would be only the affected parties, viz.,  

the persons who are legitimately entitled to a share  

in partition. This would be for the reason that they  

would be affected parties as their legitimate share  

would be illegally reduced as a result of giving  

properties by way of a share to those who are not  

legally entitled to the same, viz., the unmarried  

daughters. The persons who would be entitled to share  

in a partition would be the father and the son besides,

57    

no doubt, the wife. Strangely, the wife is not given  

any share in the partition. Therefore, the argument is  

that those sharers whose share would suffer diminution  

by the partition alone could possibly question it. This  

argument is liable to be rejected. 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.    

67.  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

58    

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.   

68.  Thus, it can be concluded as follows:   

i. 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;  

ii. 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

59    

or a partition, needless to say, 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.  

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, 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.  

WHETHER THE PARTITION ALLOTTING SHARES TO THE DAUGHTERS  

WAS UNNATURAL AND SHAM  

69. The further question which arises for  

consideration is whether in the facts of this case, any  

interference is called for proceeding on the basis that  

there is power to find that the transaction is a sham.

60    

This question resolves itself into two further  

questions. Firstly, what is the effect of the Tribunal  

entertaining the cross-objection by the State when the  

two elder daughters of Vithaldas, to whom properties  

were allotted in the partition, were not parties?  

Secondly, whether the circumstances in which the  

partition was entered into and the material were  

sufficient for the High Court to uphold the findings  

by the Tribunal.     

Taking the second question first, the very first  

aspect which stands out is the finding that the  

partition is unnatural. It is dubbed unnatural for the  

reason that under the extant Hindu Law, daughters were  

not entitled to a share. No doubt, in Maharashtra,  

Section 29A has been inserted in the Hindu Succession  

Act, 1956 with effect from 1994.  It reads as follows:  

“29A Equal rights to daughter in  

coparcenary property. — Notwithstanding  

anything contained in section 6 of this  

Act—  

(i) in a joint Hindu family governed by  

Mitakshara Law, the daughter of a  

coparcener shall by birth, become a  

coparcener in her own right in the same  

manner as the son and have the same rights  

in the coparcenary property as she would  

have had if she had been a son, inclusive

62    

The next aspect considered relevant for holding  

the partition unnatural is that the wife of Shri  

Vithaldas was entitled in law upon a partition to a  

share but she is not given any share. The further  

finding is that Vithaldas continued to be in effective  

cultivation of the land, and in this regard, the record  

of rights was relied upon.   

70.  The further aspect, which has been enlisted in  

support of its finding, is the fact that the minors  

were represented by their grandfather though the  

natural guardian, viz., Vithaldas, was very much alive.  

It is the case of the appellants that giving a share  

to the daughter cannot be impugned as done. Under the  

Hindu Law, daughters were entitled to maintenance and  

if the share is set apart to the daughters in lieu of  

same, it could not be questioned.  

The appellants further contended that the two elder  

daughters were minors at the time of partition. They  

attained majority only in the year 1973 and 1975 but  

before the commencement day.    

71.  There is nothing unnatural if the father

63    

cultivates the property on behalf of the daughters. The  

finding by the Authorities, approved by the High Court,  

that the daughters did not have the resources to  

cultivate 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 Maharashtra v. Narayan Rao Sham Rao  

Deshmukh and others13 the case arose under the very Act  

the Court is concerned with, and therein upon the death  

of a male leaving behind him his widow, mother and his  

son [the respondent therein], the High court held that  

after the death of the Karta the joint family continued  

but each one of the three were entitled to a separate  

unit of ceiling area. This Court took the view that a  

female member who inherited the interest under Section  

6 of the Hindu Succession Act did not cease to be a  

member of the family.  The Court inter alia held as  

follows:    

“7. As observed in Mayne on Hindu Law and  

Usage (1953 Edn.) the joint and undivided  

                                                 13 AIR 1985 SC 716

64    

family is the normal condition of a Hindu  

society. An undivided Hindu family is  

ordinarily joint not only in estate but in  

food and worship but it is not necessary  

that a joint family should own joint family  

property. There can be a joint family  

without a joint family property. At para  

264 of the above treatise it is observed  

thus:  

“264. It is evident that there can be  

no limit to the number of persons of  

whom a Hindu joint family consists, or  

to the remoteness of their descent from  

the common ancestor, and consequently  

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 with coparcenary as  

understood in English law: when a member  

of a joint family dies, ‘his right  

accresces to the other members by  

survivorship, but if a coparcener dies,  

his or her right does not accresce to  

the other coparceners, but goes to his  

or her own heirs’. When we speak of a  

Hindu joint family as constituting a  

coparcenary, we refer not to the entire  

number of persons who can trace descent  

from a common ancestor, and amongst whom  

no partition has ever taken place; we  

include only those persons who, by  

virtue of relationship, have the right  

to enjoy and hold the joint property,  

to restrain the acts of each other in  

respect of it, to burden it with their  

debts, and at their pleasure to enforce

65    

its partition. Outside this body, there  

is a fringe of persons possessing only  

inferior rights such as that of  

maintenance, which however tend to  

diminish as the result of reforms in  

Hindu law by legislation.”  

8. A Hindu coparcenary is, however, a  

narrower body than the joint family. Only  

males who acquire by birth an interest in  

the joint or coparcenary property can be  

members of the coparcenary or coparceners.  

A male member of a joint family and his  

sons, grandsons and great grandsons  

constitute a coparcenary, A coparcener  

acquires right in the coparcenary property  

by birth but his right can be definitely  

ascertained only when a partition takes  

place. When the family is joint, the extent  

of the share of a coparcener cannot be  

definitely predicated since it is always  

capable of fluctuating. It increases by the  

death of a coparcener and decreases on the  

birth of a coparcener. A joint family,  

however, may consist of female members. It  

may consist of a male member, his wife, his  

mother and his unmarried daughters. The  

property of a joint family does not cease  

to belong to the family merely because  

there is only a single male member in the  

family. (See Gowli Buddanna v. CIT [(1966)  

3 SCR 224 : AIR 1966 SC 1523 : (1966) 60  

ITR 293] and Sitabai v. Ram  

Chandra [(1969) 2 SCC 544 : AIR 1970 SC  

343 : (1970) 2 SCR 1] .) A joint family may  

consist of a single male member and his wife  

and daughters. It is not necessary that

66    

there should be two male members to  

constitute a joint family. (See N.V.  

Narendranath v. CWT [(1969) 1 SCC 748 : AIR  

1970 SC 14 : (1969) 3 SCR 882 : (1969) 74  

ITR 190]………………….”  

(Emphasis supplied)  

Women were not co-parceners under the extant law.       

In this regard, the following discussion in Mayne’s  

Hindu Law and usage, sheds light.  

“Women not coparceners.- It is obvious  

that, on the twin principles of a right  

vested by birth in the male issue only and  

of unobstructed heritage, the conception of  

a Mitakshara coparcenary is a common male  

ancestor with his lineal descendants in the  

male line, and that the female members of  

the family who have no vested right by birth  

and come in only as heirs to obstructed  

heritage (Sapratibandha Daya) cannot be  

copaceners, with the male members though,  

along with the males, or in exceptional  

cases by themselves, they are members of  

the undivided family as a corporate body.”  

73. It is to be noticed that partition can be of  

property which is previously held jointly.  Mayne’s of  

Hindu Law states as follows:   

“436.Coparcenary property alone  

divisible.- First the property to be

67    

divided by ex vi termini the property which  

has been previously held as joint property  

in coparcenary”.  

COPARCENARY PROPERTY ALONE IS PARTIBLE.    

74. In para 442 the learned author has dealt with the  

persons entitled to a share under the heading Share for  

women.  The following is 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 partition  

took place at the will of others were  

specially safeguarded by the Sanskrit  

writers.  

Wife.-Yajnavalkya says: “If he(father)  

makes the allotments equal, his wives to  

whom stridhana has been given by the  

husband or the father-in-law must be made  

partakers of equal portions”. Explaining  

this text, the Mitakshara says: “When the  

father, by his own choice, makes all his  

sons partakers of equal portions, his wives  

to whom peculiar property had not been  

given by their husband or by their father-

in-law, must be made participants of shares  

equal to those of sons. But if separate  

property have been given to a woman, the  

author subsequently directs half a share to  

be allotted to her: “Or if any had been  

given, let him assign the half”.”  

68    

75. A wife however could not demand a partition.  The  

share of the wife under the Mitakshra law has been  

dealt with as follows in Mayne’s Hindu Law:    

“455. Wife – A wife however could never  

demand a partition during the life of her  

husband, since, from the time of marriage,  

she and he are united in religious  

ceremonies. This is in accordance with the  

fundamental rule of Hindu law as stated in  

the text of Harita as quoted by the writers:  

“There can be no partition between husband  

and wife”.  

Wife’s share under the Mitakshara law.-  

According to the Mitakshara law prevailing  

in States other than Madras, a wife is  

entitled on a partition between her husband  

and his sons to a share equal to that of a  

son; but she cannot enforce a partition.  

She may either be the mother or the step-

mother of the sons. She can sue for her  

share where there has been a partition and  

she has not been assigned any share,  

provided there was no waiver of her rights  

or acquiescence on her part.”  

Women could not enforce partition.  This was a  

right which was conferred upon the males  

“458. Women cannot enforce partition.-

Neither the wife, nor mother nor  

grandmother is entitled to enforce a  

partition; the sons have a perfect right to  

remain undivided as long as they choose.  

Any alienation of property made by the  

coparceners without their consent will  

therefore bind the wife, mother or  

grandmother as they do not become owners of

69    

any shares till an actual division of the  

joint estate.”   

76. Regarding the rights of daughters, in Mayne’s Hindu  

Law, it is stated as follows:   

“461. Rights of daughters. -Where a  

partition takes place during the life of  

the father, the daughter has no right to  

any special apportionment. She continues  

under his protection till her marriage; he  

is bound to maintain her and to pay her  

marriage expenses, and the expenditure he  

is to incur is wholly in his discretion.  

But where the division takes place after  

the death of the father, the same texts  

which direct that the mother should receive  

a share equal to that of a son, direct that  

the mother should receive a share equal to  

that of a son, direct that the mother should  

receive a fourth share.”  

77. 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.    

“471.Father’s power to effect a partition.-

A Hindu father under the Mitakshara law  

can, it has been held, effect a partition  

between himself and his sons without their  

consent and this is rested on the  

Mitakshara I,ii,2. This text has been held  

to apply not only to property acquired by  

the father himself but also to ancestral

70    

property. The father has power to effect a  

division not only between himself and his  

sons but also between the sons inter se. So  

also it would seem that he has the power to  

make a division when the sons are dead and  

his grandsons along are living.  

The power extends not only to effecting a  

division by metes and bounds, but also to  

a division of status.  In all these cases,  

the father’s power must be exercised bona  

fide and in accordance with law; the  

division must not be unfair and the  

allotments must be equal.”  

THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER  

78. In the decision in Annivillah Sundaramya v. Cherla  

Seethamma and others14, the Court was concerned with  

the gift of 8 acres of ancestral land by a Hindu father  

to his daughter after her marriage when the family  

possessed 200 acres. The gift of 8 acres was not  

unreasonable.  In the above scenario it was found that  

if the father had enforced a partition, he would have  

admittedly got not less than 100 acres.  In Pugaria  

Vettoramal and another v. Vettor Gounder, Minor, by his  

                                                 14 1911 (21) MLJ 695

71    

next friend and mother Poochammal and another15, a  

Division Bench of the Madras High court elaborately  

considered the matter relating 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 as follows:  

“We have however, no doubt that a gift made by a  

father to his own daughter or a daughter of an  

uncle, provided it be of a reasonable amount is  

valid as against his son and that the question is  

really covered by authority.”  

 Thereafter, the question arose about the  

quantum of the gift involved in the said case.  It  

be noted that the gift was of land worth Rs.400  

and the family property at the time of gift was  

worth Rs.2400/-. Therefore, it constituted one-

sixth of the property in the hands of the donor.   

The Court proceeded to hold as follows:  

“The question whether the gift should  

be set aside on the ground of its being  

excessive presents more practical  

                                                 15 1912 (22) MLJ 321

72    

difficulty. The text of Yajnavalkya in  

Chapter I, Section 7, PI. 5, .of the  

Mitakshara as interpreted by  

Vignaneswara defines the share of a  

daughter as one-fourth of what she would  

be entitled to if she were a son. The  

Smrithi Chandrika, in Chapter IV, cites  

a text of Katyayana which says: "For the  

unmarried daughters a quarter is  

allowed and three parts for the sons,  

but where the property is small, the  

portion is considered to be equal. The  

author of the Smriti Chandrika says  

(Placituin 28): " The meaning of the  

fourth or last portion of the above  

text, para 26, is that where the estate  

is small the share of each sister is  

considered by Vishnu and others as being  

equal to that of a son. Reference has  

already been made to the observation of  

Vignaneswara in his commentary on  

slokas 175 and 176 of Yajnavalkya that  

it is the duty of a father to provide  

for his daughters as well as for his  

sons. The text of Yajnavalkya defining  

the share of the daughter is no longer  

legally in force though it would afford  

a guide in determining whether any  

particular gift which is impeached is  

reasonable or not. As observed in the  

Viramitrodaya in the text cited in  

Bachoo v. Mankorebai16 the gift should  

be guided by propriety but not by  

caprice. It would be hardly right to lay  

down the hard and fast rule that nothing  

more than a fourth share of what the  

daughter would get if she were a son can  

be given in any case as apparently  

attempted to be done in Damodar Misser  

v. Senabutty Misrain 17. The social  

                                                 16 (1904) 29 Bo.51  17 (1882) 8. Cal. 537

73    

condition existing at the time of the  

gift would be a proper matter to be  

taken into account; and where the  

property is very small and the expenses  

of marriage heavy in the community of  

the parties, it may not be improper to  

allot a share equal to that of the son  

for the expenses of marriage and for  

dowry together. At the same time, where  

the property is very large, worth say  

several lakhs of rupees, the courts may  

not be prepared to uphold a gift of the  

share permissible according to the text  

of Yajnavalkya. The right of the  

daughter not being confined, as pointed  

out in Rantasami Ayyar v. Vengidusami  

Ayyar18 and Churamon Sahu v. Gopi Sahu  

I.L.R.19 to have the expenses of her  

marriage defrayed, it might be  

reasonable to allot something more than  

such expenses even where they are  

comparatively heavy. At the same time,  

it would not be fair to the sons that  

the father, after spending a large  

amount on the marriage of his daughter,  

should make a gift of any considerable  

property to her. It must also be borne  

in mind that it would be unfair to the  

daughter that she should be told that  

her claim has been absorbed by excessive  

expenditure on marriage contracted by  

members of the family not for her  

benefit but to enable the co-parceners  

to maintain their social prestige. In  

Churamon Sahu v. Gopi Sahu (supra), the  

Calcutta High Court upheld the gift of  

one-third of the family property on the  

occasion of the dwiragaman ceremony.  

The learned Judges observe that the  

question must be determined with regard  

                                                 18 (1898) 22 Mad.113  19 (1909) ILR 37 Cal.1

74    

to the circumstances of each particular  

disposition. They refer to a case  

reported in 2 Morley's Digest, 198, and  

cite the observation of Lord Gifford in  

that case that it was absolutely  

impossible to define the extent and  

limit of the power of disposition  

because it must depend upon the  

circumstances of the disposition  

whenever such disposition shall be made  

and must be consistent with the law  

regulating such dispositions. In  

Anivillah Sundararatnayd v. Cherla  

Sitamma20 another principle is  

indicated. The learned Judges say : "  

Here if the father had enforced a  

partition, he would have admittedly got  

not less than one hundred acres and it  

is impossible to say that a gift of 8  

acres is unreasonable." We are  

unwilling to adopt this test based upon  

the father's right to dispose of what  

he gets for his own share on partition  

for deciding the question what  

disposition he might make while  

remaining a member of an undivided  

family. We think it must be left to the  

court in each case to decide whether the  

gift is reasonable in all the  

circumstances under which it is made.  

In this 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 one-sixth of the whole.  

It was apparently considered by the  

donor that the property still left to  

the family would have time to increase  

before his son would have to support a  

family. He died undivided from his son,  

and apparently never wished to be  

divided from him. One eighth share of  

                                                 20 (1911) 21 MLJ 956

75    

the property would be a suitable portion  

for the 1st defendant under such  

circumstances according to  

Yajnavalkya's text. What was given was  

one-sixth or one-twenty-fourth more,  

worth Rs. 100. We are not prepared to  

say that, an excessive portion of the  

property was given.”  

    (Emphasis supplied)  

79. In Annamalai Ammal v. Sundarathammal and Others21,  

the High Court took note of the fact that there were  

concurrent findings that the property gifted was a very  

reasonable portion of the property and the gift was  

found valid.   

The question fell for consideration of this Court  

in the decision reported in Guramma Bhratar Chanbasappa  

Deshmukh and others v. Mallappa Chanbasappa and  

another22. Therein, this Court after an elaborate survey  

of decisions including the decisions referred to by me,  

held as follows: -  

“18. The legal position may be  

summarized thus: the Hindu law tests  

conferred a right upon a daughter or a  

sister, as the case may be, to have a share  

in the family property at the time of  

                                                 21 AIR 1953 Madras 404  22 AIR 1964 SC 510

76    

partition. That right was lost by efflux of  

time. But, it became, crystallized into a  

moral obligation. The father or his  

representative can make a valid gift, by  

way of reasonable provision for the  

maintenance of the daughter regard being  

had to the financial and other relevant  

circumstances of the family. By custom or  

by convenience, such gifts are made at the  

time of marriage, but the right of the  

father or his representative to make such  

a gift is not confined to the marriage  

occasion. It is a normal obligation and it  

continues to subsist till it is discharged.  

Marriage is only a customary occasion for  

such a gift. But the obligation can be  

discharged at any time, either during the  

lifetime of the father or thereafter. It is  

not possible to lay down a hard and fast  

rule, prescribing the quantitative limits  

of such a gift as that would depend on the  

facts of each case and it can only be  

decided by courts, regard being had to the  

overall picture of the extent of the family  

estate, the number of daughters to be  

provided for and other paramount charges  

and other similar circumstances. If the  

father is within his rights to make a gift  

of a reasonable extent of the family  

property for the maintenance of a daughter,  

it cannot be said that the said gift must  

be made only by one document or only at a  

single point of time. The validity or the  

reasonableness of a gift does not depend  

upon the plurality of documents but on the  

power of the father to make a gift and the  

reasonableness of the gift so made. If once  

the power is granted and the reasonableness  

of the gift is not disputed, the fact that  

two gift deeds were executed instead of  

one, cannot make the gift anytheless a  

valid one”.  

77    

80.  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. When a partition  

took place, however, certain other persons were also  

entitled to share in the property. It must be  

remembered that a partition involves separate enjoyment  

and what was previously jointly held property. A wife  

of a Hindu while not a coparcener 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.   

 In order to appreciate the contentions, it is  

necessary to advert to 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  

78    

Executants: 1. Vitthaldas Jagannath               

   Khathri, age 39 years,  

2. Anilbabu Vitthaldas  

Khatri, age 4 years,  

3. Ku. Shakuntala d/o.  

Vitthaldas Khatri, age 14  

years,  

4. Ku. Durgadevi d/o.  

Vitthaldas Khatri, age 11  

years.  

5. Ku. Beladevi d/o.  

Vitthaldas Khatri, age 8  

years.  

Party No.2,3,4,5 being minors  

represented by Guardian  

grandfather Jagannath  

Ganeshdas Khatri, age 65  

years.  

Occu. Of all: Agriculture, all  

r/o. Mangrul Navghare,  

Tq.Chikhali, Dist. Buldhana.  

We execute & kept the partition  

deed as under:-  

We all are the members of the HUF  

and party No.2 to 5 are the issues  

of part No.1 and party No.3,4,5  

are the sisters of the party No.2  

and party No.2 is the brother of  

party No.3,4,5. We have been using  

our property jointly. Party No.2  

to 5 have to take the education  

and to see that each of them take  

it freely and to provide for the  

expenses therefore and to see that  

each of them will meet the

79    

expenses out of their own property  

and that no dispute took place  

between them in future, therefore,  

we are executing and keeping with  

us this deed of partition. The  

property fall on the share of each  

party is shown in front of his  

name….   

xxx  xxx  xxx  xxx  

In this way we have partitioned  

over estate, the property fallen  

to the share of party have taken  

its possession and became the full  

owner thereof. Now nobody is  

concerned with the property of  

others. Out of us for the  

education and marriage purpose of  

party no.2 to 5 and for the  

benefits of our family and for the  

successful future, we of our free  

will and consideration executed  

and kept this deed of partition,  

on this 31st day of January, 1970.  

xxx  xxx  xxx  xxx”  

81. To the share of party no.1, namely, late  

Vithaldas, an extent of 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 also  

allotted to Vithaldas.  Thus, a total of 32.01 acres  

is given to him.  In favour of his only son, who is  

aged 4 years and who is the third appellant before us,

80    

an extent of 30 acres 64 ares is seen set apart. The  

appellant no.1 (eldest daughter), who is the eldest  

child and who was aged 14 years, was given 17 acres and  

23 ares. An extent of 14 acres and 6 ares is set apart  

to the second appellant before us from out of Sy.No.14  

Babulgaon out of 35.12 acres who is again the other  

daughter of Vithaldas and aged 11 years at that time.  

The fifth party to the partition deed Kumari Beladevi  

aged 8 years is given 14 acres and 06 ares from Sy.  

No.14 Babulgaon out of 35.12 acres. Thus, it can be  

seen that from the partition deed itself that the  

extent of land made subject matter of partition was 106  

acres. This is apart from the land which was the subject  

matter of the gift in favour of the wife of Vithaldas  

who is made a 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, had the unilateral right  

to partition the joint family property.  The law,  

however, attached a condition to the exercise of such  

unilateral power that the partition must be fair.  

81    

Fairness cannot be present when it is made in complete  

derogation of the extant law relating to share of  

parties on a partition.   

83. 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  

Vithaldas.  In fact, under the Act as it stood in 1970,  

Section (8) interdicted a partition by a person who on  

or after the appointed day (26-01-1962), had excess  

land till the matter was determined. The word ‘person’  

was defined to include a family. Family included a HUF.  

If the property of 60 and odd acres found held by the  

wife was reckoned, on 31-1-1970, as the member of  

family as defined included the spouse, and as the  

family holding would have crossed 114 acres, the  

maximum limit in Buldana District, the partition may  

have been in the teeth of Section (8) as it stood before  

substitution by Act XXI of 1975.  No doubt, I may notice  

that she was gifted 60 and odd acres by her father and  

husband from out of the joint property by gift deed  

dated 20.1.1955.  However, when the family partition  

took place, her right may continue.  If the wife under

82    

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 ares.  The daughters together got  

1½ 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. I  

have noticed the age of both appellants nos. 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 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. The  

circumstances which stand against the document namely  

the partition being a genuine transaction are:

83    

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 a guardian when the parents are  

alive.  

4. 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 ares  

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 vide Section 29A  

of the Hindu Succession Act, 1956 and entitled to  

a share as such, the question to be posed and  

answered is whether such right existed in 1970 when  

the partition was entered into. The answer can only  

be in the negative.  

84    

84. No doubt, as held by this Court in the decision  

supra, it was open to a Hindu to make a gift of a small  

portion or a reasonable portion of 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.    

85.   The question in this case is not whether a gift  

could have been validly made or not by Vithaldas to  

his elder daughters.  It is to be noted that there is  

no such case expressly set up that what was the  

effected under the partition was a gift or that  

Vithaldas intended to make a gift of the properties in  

question to the elder daughters.  Though it is stated  

in the reply to the cross objection that the  

nomenclature is immaterial one, what was intended  

therefrom is clear from the next sentence.  “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 the Act included  

dependent daughters.  In the Special Leave Petition,  

in ground (I), it is stated as follows: -

85    

“Because the Hon’ble Division Bench  

has merely confused the whole issue  

where at Para 9 it has observed that  

the Vithaldas could have gifted the  

property to his two daughters i.e.  

Shakuntala and Durga but that too  

would not have mattered till the  

time the said daughters continued to  

be part of his family.  

It is submitted that the said  

observation clearly goes beyond the  

intention and nature behind the said  

transfer which, was merely a  

partition in the lines of a family  

settlement.”  

By no yardstick can the circumstances be treated  

as either legal or natural.  I may also notice that in  

the context of a family arrangement a Bench of 4  

learned Judges in the decision reported in Potti  

Lakshmi Perumallu v. Potti Krishnavenamma23, inter  

alia, held as follows:   

“7. No doubt, a family arrangement  

which is for the benefit of the family  

generally can be enforced in a Court of  

law. But before the court would do so it  

must be shown that there was an occasion  

for effecting a family arrangement and that  

it was acted upon. It is quite clear that  

there is complete absence of evidence to  

show that there was such an occasion or the  

                                                 23 AIR 1965 SC 825

86    

arrangement indicated in the will was acted  

upon.”  

86. I would also think that no acceptable reasons are  

forthcoming as occasion warranting such a partition  

apart from its illegal and unfair terms.    

87. In Made Couda and Ors. v. Chenne Gouda and Ors.24,  

the appellant was the uncle of the second defendant  

who was his nephew (his sister’s son).  Under a  

partition, a share was purported to be allotted to the  

nephew.  The District Munsif found that the nephew got  

a share as a gift or in consideration of surrender of  

part of the property to the appellant.  The value of  

the property being more Rs.100/-, whether it was a  

gift or an exchange.  It offended against, the  

provisions of Transfer of Property Act.  The first  

appellate Court took the view that it 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 back to consider whether any valid title  

has been acquired independent of the point decided in  

the judgment.  The learned Court took the view that a  

                                                 24 AIR 1925 Madras 1174

87    

person could not by mere recognition as a co-sharer by  

another co-sharer acquire title without complying with  

the provisions of the Transfer of Property Act.    

88. In Ponnu and another v. Taluk Land Board, Chittur  

and others25, though rights were purported to be  

conferred upon his son under a partition deed, it was  

contended before the authority that it may be treated  

as gift.  It is to be noted that to be a valid gift  

not only there must be registration but there must be  

attestation by two witnesses.  [See Section 123 of the  

Transfer of Property Act].  It is further relevant to  

notice that in the said judgment the property was the  

separate property of the father which undoubtedly, he  

could gift.  The gift under the Kerala Land Reforms  

Act had the effect of reducing the extent of land 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 property  

                                                 25 (1981) KLT 780

88    

was the separate property of Vithaldas.  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.  Even before this Court it  

is not maintained that the partition is to be construed  

as a gift.   

89.  The question, however, relevant to this case is  

this.  Apart from the partition deed being unnatural,  

was it a sham transaction?  The finding that the  

transaction is unnatural apart from raising serious  

suspicion effortlessly opens the doors to a finding of  

it being sham.  Ordinarily, in the case of sham  

transaction its terms deceptively disguise the  

underlying truth.  The task become uphill when the  

transaction appears natural, to prove it to be a sham  

transaction. But when the transaction itself is  

unnatural, the task of the court is made lighter.   

90. It is true that there is no express pleading in  

the cross objection that the transaction is sham and  

that Vithaldas continued to hold the land as on  

2.10.1975.  In Uttar Chand (supra), this Court, in

89    

fact, has pointed out to the lack of pleading to  

support the finding that transaction involved in the  

said case was a collusive one.  In fact, it may be  

noticed that under the Act what is contemplated is  

filing a return by the person or family unit having  

surplus land followed by an inquiry under Section 14  

read with Section 18 and the declaration under                 

Section 21. The earlier proceedings which has taken  

place in this case has not been produced.  Be that as  

it may, the State has filed cross objection in the  

appeal.  The contents of the said cross objection in  

relation to the partition deed has also been noticed.   

91. I would think that in the facts of this case, the  

finding that there is no transfer of the interest of  

Vithaldas under the partition deed is what is  

essentially involved. In facilitating such a finding,  

the unnatural nature of the partition has played a  

large part. In the facts, the mere fact that it is not  

expressly stated that he continued to hold the land or  

that the transaction was a sham transaction by itself  

may not be fatal to the case of the State though

90    

ideally it should have been mentioned. The parties  

have proceeded before the Tribunal and the High Court  

understanding the purport of the pleadings in the cross  

objection to be that there is no effective transfer  

under the partition.   

THE MATERIALS RELIED ON IN THE ORDER OF THE TRIBUNAL  

IN REGARD TO THE FINDING ABOUT THE PARTITION DEED  

92. The Tribunal notes that the eldest among the  

daughters Shakuntala Bai was born on 03.11.1955.  The  

second of the elder daughters Durga Devi was born on  

29.08.1957.  They were 14 and 12½ years of age on the  

date of the partition in 1970.  Vithaldas continued to  

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 12 of Babul Gaon in which  

the elder daughters were allotted the shares, it was  

found as follows:   

“15. As regards the actual possession of  

S.Nos. 14 and 12 of Babulgaon, the crop-

statements in respect of S.No.14 for the  

year 1970-71 and 71-72 shows the  

cultivation of Vithaldas, while during  

1972-73 to 74-75 it is shown as jointly  

cultivated by Vithaldas and his daughter  

Durgadevi. S.No.12 of Babulgaon is shown

91    

as cultivated during 1974-75 by Vithaldas  

alongwith his daughter Shakultala. The  

crop statement for the other years have  

not been filed by the appellant. It is  

ludicrous to think that these minor  

daughters would possess the necessary  

where withal to cultivate the land  

independently. I have therefore no  

hesitation to hold that the appellant  

Vithaldas was holding S.No.12 area 17  

acres 23 Gs and S.No.14 area 14 As 6 Gs  

of Babulgaon, shown to have been  

transferred to his daughters Shakuntala  

and Durgadevi.”  

THE ORDER DATED 23.11.2016 PASSED BY THIS COURT AND  

ADDITIONAL AFFIDAVIT BY THE SON OF VITHALDAS  

93. On 23.11.2016, this Court passed an order which  

reads as follows:   

“The legal representatives of the  

deceased appellant¬ Vithaldas Jagannath  

Khatri appear to have placed reliance  

upon a document purporting to be a deed  

of partition of certain agricultural land  

in support of their contention that they  

had acquired ownership over the disputed  

land long before the effective date under  

the provisions of the Maharashtra  

Agricultural Land (Ceilings on Holdings)  

Act, 1961. While a copy of the said  

document purporting to be a partition  

deed is on record and has been noticed by  

the authorities below it is not clear  

whether the alleged acquisition 2 of  

rights under the said document was ever  

reported to revenue authorities in terms  

of Sections 148 and 149 of the Maharashtra

92    

Land Revenue Code, 1966. It is also not  

clear as to whether the revenue  

authorities had upon receipt of such a  

report taken any steps to acknowledge the  

creation of the alleged rights in favour  

of the legal representatives of the  

deceased appellant. The orders under  

challenge on the contrary suggest that  

the ownership of the land had continued  

in the name of the deceased in the revenue  

records despite the alleged execution of  

the partition deed. Confronted with this  

position Ms. Indu Malhotra, learned  

senior counsel appearing for the  

appellants seeks a short adjournment to  

take instruction and place on record  

material to suggest that the execution of  

the so-called partition deed and the  

acquisition of the rights thereunder by  

her clients was duly reported and  

accepted in appropriate proceedings  

envisaged under the land revenue code  

mentioned above. Copies of the record of  

rights in relation to land in question  

with effect from 31.09.1970 till  

02.10.1975 shall also be placed on  

record. Needful shall be done within six  

weeks.”  

94. Pursuant to the same an additional affidavit by  

son of Late Vithaldas has been filed on 09.03.2017.   

Thereunder it is inter alia stated that on an  

application to the concerned office, reply was  

received to the effect that with regard to the field  

Survey No.12 and 14 of village Babulgaon as well as  

field Survey No.64 village Mangrul, that the record

93    

from 1970 to 1975 is in a mutilated condition and the  

mutation register for the period from 1964 to 1978 is  

not traceable.    

“For Village Mangrul, the crop statement  

is not available for the period 1970-

1972, and for Village Babhulgaon crop  

statement is not available for the  

period 1970-1973 for Survey No.14, while  

crop statement is not available for  

Survey No.12 for the period 1971-1972.”  

95. It is stated further that the name of the son is  

recorded in the Crop Register for the period 1972 to  

1975 as occupant. Certain copies of the Record of  

Rights from the register of crop prepared under Rule  

29 of the Maharashtra Land Revenue Record of Rights  

and Registers (Preparation and Maintenance Rules)1971  

have been produced.  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 and 12  

guntas it is Vithaldas who is shown as the  

occupant.  Durga Devi is also shown as occupant

94    

as against Sy.No.14 in respect of 14.29 H.  Bela  

Devi, the youngest daughter is also shown as  

occupant.  Both are shown as minor and their  

guardian, the grandfather. The same is the  

position in regard to the year 1974-1975.  Still  

further it is shown likewise for the year 1975-

1976.  The same position is shown both before and  

after the consolidation proceedings in regard to  

Survey No.12.  For the year 1972-1973 in regard  

to 17 acres and 23 guntas.,Shankuntala Bai (the  

eldest daughter) was shown under the head ‘Name  

of the existing occupant’ along with Vithaldas  

Jagannath S.O..  Even in the Crop Register 1973-

1974, the name of the occupant is shown as  

Vithaldas Jagannath for minor Shakuntala Bai  

Vithaldas.  It is to be noted that going by the  

date of birth of Shakuntala Bai as noted by the  

Tribunal as on 03.11.1955, she became major on  

03.11.1973, Still she is shown as a minor and her  

father is shown as occupant on her behalf.   

 In regard to 17 acres and 23 guntas for 1974-

95    

1975 under the name 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 despite the fact that on 03.11.1973 itself  

Shakuntala Bai had even already become a major.  For  

the earlier year it has been noticed that the entry  

was Vithaldas for Shakuntala Bai.  For the year 1974-

1975, the next feature to be noticed is Shakuntala Bai  

is to shown along with her father as an occupant.   

However, she is so shown through her guardian who is  

shown as her grandfather.  Taking the matter forward  

for the next year namely 1975-1976, the occupant is  

shown as Shakuntala Bai Rama Prasad through guardian  

Jagannath.  It is to be noted that Shakuntala Bai had  

much earlier become major.  The name of Vithaldas which  

was there in the earlier year is seen removed.    

97. In the Record of Rights, produced under the law  

relating to consolidation in Survey No.12, Shakuntala

96    

Bai is shown as minor through her grandfather both  

before and after the proceedings were conducted.  In  

this connection as noticed by the Tribunal crops  

statements for the other years were not filed. They  

were not produced in the High Court also.  No evidence  

has been tendered though it was open to adduce evidence  

as is permitted under the Act.  

98. I would think on a conspectus of the material, I  

feel reinforced that the partition was indeed not only  

unnatural but it was not intended to have effect.  

THE EFFECT OF THE CROSS OBJECTION BEING ALLOWED IN THE  

ABSENCE OF THE TWO ELDER DAUGHTERS TO WHOM THE PROPERTY  

WAS ALLOTTED IN THE PARTITION.   

99. It is undoubtedly true that the appeal before the  

Tribunal was filed by Late Vithaldas, his wife, son and  

youngest daughter.  It is also true that 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

97    

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.  This is a matter on which I need not dwell  

further.  

100.    The question which would however arise is, as  

is sought to be contended by the respondent-State the  

effect of the elder daughters not challenging the order  

of the Tribunal.  The order of the Tribunal was  

challenged by Vithaldas 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.  

101.    Shri Vithaldas and his wife did not prosecute  

the writ petition also as representatives of the elder

100    

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 Vithaldas. He could indeed question the  

inclusion of the lands allotted to his elder daughters  

in the account of the family unit. Vithaldas 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, Vithaldas 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 Vithaldas or his wife.  Again, I would reiterate  

that the writ petition has been filed only by Vithaldas  

and his wife.  Though the elder daughters were majors,  

they have not challenged the order of the Tribunal.  

101    

Maybe it is true that they were respondents in the writ  

petition filed by their parents.  Even after the  

learned Single Judge dismissed the writ petition,  

upholding the order of the Tribunal, no appeal was  

filed by the elder daughters.   

105. 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 Vithaldas in which case it  

would be property held by Vithaldas even on the  

commencement date namely 2.10.1975 rendering it liable  

to be included in the account of the family unit.   He  

accordingly challenged the order of the Tribunal along  

with his wife who was separately aggrieved by the  

inclusion of the property found gifted to her.  

102    

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 in the shoes of a  

plaintiff.  Vithaldas 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 Vithaldas(now  

deceased) through LRs and the petitioners names are  

shown. No doubt their position as respondents in the  

High Court is also 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 Vithaldas who  

instituted the writ petition and appeal along with his  

wife.  Be it noted that one out of the two appellants  

in the High Court, namely, Vithaldas passed away. His  

wife has not pursued the matter before this Court and  

she is a proforma respondent No.4 in this appeal.  The  

appeal is prosecuted by the present appellants in their  

capacity as legal representatives of Vithaldas.   

Contentions which were available to Vithaldas alone,

103    

would therefore be available to them.  In this Court,  

I may refer to the judgment of this Court reported in  

Jagdish Chander Chatterjee and Others v. Shri Sri  

Kishan and another26, reads as follows:  

“10. Under sub-clause (ii) of Rule 4 of  

Order XXII, Civil Procedure Code any  

person so made a party as a legal  

representative of the deceased,  

respondent was entitled to make any  

defence appropriate to his character as  

legal representative of the deceased-

respondent. In other words, the heirs and  

the legal representatives could urge all  

contentions which the deceased could have  

urged except only those which were  

personal to the deceased. Indeed this  

does not prevent the legal  

representatives from setting up also  

their own independent title, in which  

case there could be no objection to the  

court impleading them not merely as the  

legal representatives of the deceased but  

also in their personal capacity avoiding  

thereby a separate suit for a decision on  

the independent title”.  

(Emphasis supplied)  

107.   As has been noted by me, the contention that the  

Tribunal should not have allowed the cross objection  

                                                 26 (1972) 2 SCC 461

104    

without the elder daughters on the party array was not  

available to Vitahaldas.  If that is so, his legal  

representatives namely, the appellants cannot take  

contentions which were not available to their  

predecessor-in-interest.  

108.    It is true that this is a case where as regards  

the elder daughters, they were not parties in the  

appeal in which the cross-objection was filed.  

109.    Also, no doubt the elder daughters and others  

were respondents in the Writ Petition and Letter Patent  

Appeal. It may be true that a respondent and even a  

person who is not a party can with leave prefer an  

appeal. But when they have not challenged the order of  

the Tribunal and even the judgment of the learned  

Single Judge and as the Vithaldas had fully contested  

the matter and in view of my finding that the properties  

allotted to the elder daughters, are liable to be found  

held by Vithaldas, I would not be inclined to  

interfere, particularly, as I have noted above when the  

perusal of the Special Leave Petition would reveal that  

Vithaldas (now deceased) through the LRs-the  

petitioners is shown in the cause title. It must be

105    

remembered that the petitioners upon the passing away  

of Vithaldas during the pendency of the Latter Patent  

Appeal were recorded as his legal representatives.  

110.    I would also, at any rate, in this regard, in  

this case invoke the principles laid down in  

Taherakhatoon (D) By Lrs. v. Salambin Mohammad27 and  

refuse to interfere.   

111.    I would think, therefore, the appeal must fail  

and it stands dismissed.  

.................J.                             

(K.M. JOSEPH)  

NEW DELHI,  

AUGUST 29, 2019.   

                                                 27  1999(2) SCC 635

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6006 OF 2009

VITHALDAS JAGANNATH KHATRI (D) THROUGH SHAKUNTALA ALIAS SUSHMA & ORS.    ...Appellants

                 Vs.

THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT & ORS.    ...Respondents

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’ble K.M.Joseph, J. dismissed the appeal),  the  matter  be  placed  before  Hon’ble  the  Chief Justice of India for referring the matter to a Larger Bench.

......................J.         [SANJAY KISHAN KAUL]    

......................J.          [K.M.JOSEPH]            

New Delhi; August 29, 2019.