Laxmiba Batukbha Rana and Others vs State of Gujarat and Another

Jayant Patel, J.—The present appeal arise against the judgment & order dated 4/10/1999, passed by learned Single Judge of this Court in Special Civil Application No. 851 of 1995, whereby the order of Dy. Collector and which is confirmed by the Tribunal, is not interfered with.

For the sake of convenience the parties shall be referred to as per their original status before the learned Single Judge.

The relevant facts are that, Rana Surubha Amubha, father of original Petitioner Nos. 1 to 4 / Appellants herein was holding agricultural land admeasuring 104 acres & 21 gunthas at village Bhadvana, Taluka Lakhtar, District Surendranagar. He expired on 11/4/1969 and vide entry No. 765 dated 11/5/1969 land held by deceased Surubha was transferred on the name of Petitioner No. 1 Batukbha, who was the son of the deceased Surubha. As observed by the Tribunal, said entry came to be mutated in favour of Petitioner, as the consents were given by the sisters for relinquishment of their right in the property in the year 1969 after death of Surubha. It appears that, thereafter, as the prescribed limit for agricultural ceiling was 54 acres, and the land on the name of Petitioner No. 1 was 104 acres & 21 gunthas, proceedings were initiated under Gujarat Agricultural Land Ceiling Act (hereinafter referred to as the ''Act''). In the proceedings, it was the stand of Petitioner No. 1 that the land in question was partitioned amongst himself and 3 family members and therefore Petitioner No. 1 and other Petitioners have no land holding more than the ceiling limit. At the initial stage surplus land was declared by Mamlatdar & ALT. However, further proceedings were carried in appeal and thereafter in revision. Ultimately the matter was remanded to Dy. Collector and the Dy. Collector by order dated 8/11/1993 negatived the contentions that surplus land was not held by Petitioner No. 1, and further declared the surplus land admeasuring 50 acres & 21 gunthas to be acquired by the Government. Petitioners carried the matter in revision before the Tribunal, which ultimately came to be dismissed vide order dated 6/9/1994. Against the said decision of the Tribunal, petition being Special Civil Application No. 851 of 1995 came to be preferred before this Court. Learned Single Judge, who heard the matter found that there is no illegality with the order passed by Dy. Collector and ultimately by confirming the order of Dy. Collector, dismissed the petition. Under these circumstances the present appeal before us.

We have heard Mr. P.V. Hathi, learned Counsel appearing for the Appellants/original Petitioners, and Mr. Pranav Trivedi, learned AGP for the State.

The only contention raised by learned Counsel for the Appellants/original Petitioners is that, at the time when the entry was mutated in the revenue record in the year 1969 for transferring the land in favour of Petitioner No. 1, there was no registered document or written partition. Therefore, he submits that, the authority ought to have considered that after death of Surubha land would vest to Surubha''s son, Appellant No. 1 herein as well as all the 3 daughters who are coparceners. He submitted that, if the total land admeasuring 104 acres & 21 gunthas is divided in equal share, holding of each would be below the ceiling limit, which has not been properly considered by learned Single Judge and therefore, this Court may consider it in appeal.

In furtherance to his submission, he contended that if law requires deed of relinquishment to be registered, same ought to have been ignored by the authority under the Gujarat Agricultural Land Ceiling Act 1960 (herein after referred to as the ''Act'').

The aforesaid contention had been considered in greater detail by learned Single Judge, which can be extracted as under.

Coming to the first contention regarding shares of the sisters of the Petitioner No. 1, namely, Petitioner Nos. 2, 3 and 4, the contention of the learned Counsel for the Petitioner Shri P.V. Hathi has been that under the Hindu Succession Act after the death of their father the Petitioner Nos. 1 to 4 inherited 1/4th share in the agricultural land and consequently the land inherited by the Petitioner Nos. 2,3 and 4 could not be clubbed in the holding of the Petitioner No. 1. He further argued that since the shares of Petitioner Nos. 2,3 and 4 were clubbed in the holding of the Petitioner No. 1 by the Deputy Collector as well as by the Revenue Tribunal, the calculation of surplus land is erroneous. The contention is not so simple as it appears. In this writ petition or before ceiling authorities the question of ownership was not to be adjudicated upon. If there was any dispute regarding ownership, it could be decided by the competent court. The revenue authorities / ceiling authorities could not have declared who are the owners and to what extent in the land in question. It appears from the record that Batukbha Petitioner No. 1 applied before the revenue authorities that after the death of his father, his name alone be entered in the record of rights. Entry No. 765 continued in the name of Batukbha since 11.5.1969. There is also a note to the effect in the entry that sisters of Batukbha had abandoned their interest which has been duly sanctioned. On the point of abandonment or relinquishment, the learned Counsel for the Petitioners contended that since the value of the immovable property exceeded Rs. 100/-this relinquishment could not be taken into consideration without registered document and since there is no registered document executed by the three sisters of the Petitioner No. 1 their shares could not be clubbed in the share of the Petitioner No. 1. The Tribunal observed that u/s 17(1)(b) of the Registration Act, registration of certain documents relating to immovable property worth more than Rs. 500/-is compulsory. However, it observed that it is not uncommon in rural area that people do acquire and surrender their rights in respect of agricultural lands when the parties involved are of the same family having blood relationship. It may however be mentioned that the sole entry in favour of the Petitioner No. 1 was never challenged before the competent court by three sisters of the Petitioner No. 1. Consequently, the ceiling authorities were justified in placing reliance upon the certified entry in favour of the Petitioner No. 1. At this stage it should be appropriate to mention that according to Petitioner No. 1 he gave certain lands to his two sisters on 18-11-1970 as per entry No. 902 but this entry was rejected because there was no document of partition nor the two sisters of the Petitioner No. 1 were found in actual possession of the land so partitioned partially. Again in respect of entry No. 1034 dated 16-5-1972 Batukbha again did not make compliance of the provisions of Section 17(1)(b) of the Registration Act while passing the land in favour of the two sisters. If no deed of relinquishment was executed by the Petitioner Nos. 2 to 4, no occasion arose for getting the same registered. If they did not challenge the sole entry in favour of the Petitioner No. 1 it cannot be said that the appellate or revisional authorities committed error of law in placing reliance upon the recorded and certified entry in the name of the Petitioner No. 1. The so called theory of relinquishment by three sisters of the Petitioner No. 1 cannot be held to be imaginary.

If the three sisters of Petitioner No. 1 had 1/4th share each in the land in question then there was no occasion for the Petitioner No. 1 to divide the land between himself and his two sisters. There was again division on 18-11-1970 to exclude the third sister of the Petitioner No. 1. The entry sought to be made on the basis of such division or partition was rejected by the authorities on the ground that there was no partition deed and that three sisters of the Petitioner No. 1 were not in actual possession of the land alleged to have been partitioned. This story of partition also hardly appeals to reason. In the absence of partition deed or memo of partition, the case of partition set up by the Petitioner No. 1 cannot be accepted. The so-called partition seems to be an attempt to defeat the provisions of the Ceiling Act. Obviously the land was entered in the name of Petitioner No. 1. The so-called partition took place on 3-11-1970 i.e. before the specified date. This partition was therefore liable to be ignored and it will be deemed that the land was held in the name of the Petitioner No. 1. Since the entry in the name of Petitioner No. 1 remained intact and was not corrected or altered, the ceiling authorities were justified in proceedings to take surplus land on the basis that the entire land was held by the Petitioner No. 1. They therefore did not commit any illegality in not ignoring the shares of the three sisters of the Petitioner No. 1.

It is an undisputed position that in the year 1969 after death of Surubha vide entry No. 765 dated 11/5/1969 which was for heirship of deceased Surubha, land came to be mutated in favour of Petitioner No. 1 Batukbha alone. The Tribunal upon examination of the record has observed inter alia at para-7 of the order as under.

It is to be noted that this relinquishment has been made with the consent of the sisters.

The one at whose instance the entry was mutated cannot be heard to say that heirship entry was not correctly recorded. However the sisters who had relinquished their right by giving consent, at no point of time, in any case, prior to initiation of proceedings by the Mamlatdar, challenged the revenue entry. Under these circumstances, if interest of deceased Surubha later on by heirship was devolved upon the Petitioner No. 1 Batukbha, it could not be said that the sisters of Batukbha were having share in the property at the time when Act came into effect. Aforesaid is coupled with the additional aspect that it is not the case of any of the Petitioners that land was a self-acquired property of Batukbha. On the contrary, there is averment to the effect that the property was a Giras. If the property is an ancestral property, as per Hindu Law prevailing then, it would devolve to male member and male member would be only coparcener and Batukbhai was the only son of deceased Surubha. Therefore, the entry could not be said to be in contravention to the provisions of Hindu Succession Act as sought to be canvassed. We may record that it is only by Amendment Act No. 39 of 2005 which has come into effect from 9/9/2005 right is recognised of a daughter in a coparcener property under the Hindu Succession Act. The position as prevailed when the Act came into force was not for any statutory right of the daughter in a coparcener property. The entry of 1969 for heirship of deceased Surubha in favour of Batukbha, Petitioner No. 1 is also required to be considered from that angle.

In addition to above, we may record that, as per Section 6(3C) where in a family or a joint family irrespective of its members, includes major son, then the major son is deemed to be a separate person. To say in other words such right is not a right for major daughter but is a right only for major son.

Under these circumstances, and in view of the aforesaid circumstances and having considered the judgment & reasons recorded by learned Single Judge, we find that the contentions of Mr. Hathi cannot be accepted.

No other contention is raised.

Hence the appeal is meritless and, therefore, dismissed. Interim relief, if any, shall stand vacated. No costs.