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In case of a partition that is made after the cut-off date and before the commencement date, the pow

Vithaldas Jagannath Khatri (dead) through Smt. Shakunthala Alias Sushmi and Ors. Vs. The State of Maharashtra Revenue and Forest Department and Ors., Civil Appeal No. 6006 of 2009 – 19th February 2020.

The Supreme Court Bench comprising of Justice R. Nariman, Justice S. Ravindra Bhat and Justice V. Ramasubramanian pronounced the following judgment.

Facts: A partition deed was executed between Vithaldas and his minor son and three minor daughters on 31.01.1970. the agricultural land of the Hindu Undivided Family is sought to be divided by mentioning that parties two to five – who are four children of Vithadas – have to be provided with the expenses of their education and marriage, which is to be borne out of the separate property allotted to each.  In an earlier partition deed on 20.01.1955, partition was executed between Vithaldas and his father Jagannath. Separate provision was made in favor of the wife of Vithaldas by means of a gift deed of land in her favor.

Under Section 11 of the 1961 Act, where any  land held by a family is partitioned after the cut-off date of 26.09.1970, the partition so made shall be deemed, unless the contrary is proved,  to have been made in anticipation of, or in order to avoid or defeat, the Amending Act of 1972 and shall accordingly be ignored. There is no doubt that on the facts of this case that the partition deed, as well as its registration, is prior to the cut-off date.

The Court stated that the partition deed, being unnatural, was sham; that coparcenary property alone is partible, and stated that the question as to whether or not a gift could have been validly made by Vithaldas to his elder daughters cannot be gone into, as no such case had been set up.  Finally, the learned Judge held that it was of no moment that cross objections of the state was allowed without making the two elder daughters parties to the appeal before the appellate tribunal, and then concluded that the appeal should stand dismissed.

On a conspectus of the provisions of the 1961 Act that have been set out hereinabove, what becomes clear is that transfers or partitions of land made in anticipation of or in order to avoid or defeat the 1972 Amending Act were to be ignored in calculating ceiling limits. This was so laid down by the Amending Act, 1975, which made 26.09.1970 the cut-off date after which such transfers became suspect. What is important to note is that the 1961 Act does not in any manner declare such transfers to be void. However, if the contrary is proved on the facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after the cut-off date, the person affected would be out of the clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what is important is the expression “shall accordingly be ignored”, which occurs in Section 11. The Court held that it is not possible to state that wherever the expressions “transfer” and “partition” occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word “genuine” is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear – a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be “ignored”. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area.

Thus, the appeal is allowed.

– Vydurya Selvi Baskaran



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