Collector vs Parameswar Naik

K.S. Raghupathi, Member

This revision is on a motion of the Collector, Kalahandi, u/s 59(2) of the Orissa Land Reforms Act.

In Case No. 705 of 1976 the Revenue Officer, Nawapara, determined the ceiling area of Parameswar Naik. In so doing he accepted the contention of the land holder that his son Kulamani Naik had separated from the "family" since 1969 and that the lands had been partitioned with 52.98 acres to the share of Kulamani and the balance of 6093 acres to the share of Parameswar. He also accepted the plea that three plots aggregating to Order 72 acres did not belong to Parameswar but to a Teva Devi.

The Collector has moved the Board of Revenue when it came to his notice that the deed of partition on the basis of which the major married son was excluded was executed in the year 1972. He has pointed out that as the partition was effected after the 26th day of September 1970 it would be void.

In the hearing before the Board of Revenue certain preliminary objections have been raised. It has been argued that the draft statement published under Sub-section (3) of Section 44, becomes final and conclusive on expiry of the prescribed period and it cannot be revised thereafter even by the Board of Revenue. It has also been argued that whatever power the revisional authority mayor may not have it has not the power to review the evidence unless the statute expressly confers such power. The revisional authority cannot therefore travel beyond the order passed or proceedings recorded by the inferior authority and make a fresh enquiry into the fact of partition. It must confine itself to the legality or propriety of the finding of the Revenue Officer in this regard. In support of this view Mr. D.P. Sahoo has cited the judgment of the Supreme Court in the case at State of Kerala Vs. K.M. Charia Abdullah and Co., . It is further argued that the enquiry contemplated in Section 43(2) of the Orissa Land Reforms Act is one within the discretion of the Revenue Officer and the revisional authority cannot interfere with that discretion and order an enquiry to be made.

I am afraid these objections are misconceived. Section 59(2) reads-

(2) The Board of Revenue, may at any time on being moved in that behalf by the Collector of a district or by the Land Reforms Commissioner, revise any order passed by any authority under this Act.

It is expressly provided that the Board of Revenue may revise any order at any time. The object is that irregularities or injustice ought to be cured without restriction. Sub-section (3) of Section 59 which reads-

(3) For the purposes of revising any order, the prescribed authority and the Board of Revenue shall follow such procedure as may be prescribed and shall have power to call for and examine the records of the proceedings wherein such order was passed and to pass such order as may deem fit ;

confers both on the prescribed authority and on the Board of Revenue the power to go fully into the merits of the matter before it.

The view in para 5 of the Supreme Court on which Mr. D.P. Sahoo relies was a minority view. The majority view was that there was nothing to say that the revising authority cannot make or direct any further enquiry. It was held that the power to pass such order as the revising authority thinks fit may include the power to make or direct such further enquiry as the revising authority may find necessary for rectifying the illegality or impropriety of the order of irregularity in the proceedings.

The scheme of Chapter IV of the Orissa Land Reforms Act is that the 26th day of September 1970 shall be the basis for determination of the ceiling area of a person. Transfers or partitions of land made after that date are not recognised. There is also restriction on suits for specific performance. For determination of the ceiling area, whether it be after the return is filed u/s 40A or 40B or whether it be suo motu u/s 42, an investigation is contemplated. After the investigation, the Revenue Officer is required to prepare a draft statement.

The statement has to be published inviting objections. If objections are received they have to be heard. Enquiries as deemed necessary by the Revenue Officer have to be made. Particulars specified in the draft statement may be altered or amended thereafter by an order where reasons have to be recorded in writing for the alteration or amendment.

The order of the Revenue Officer reads-

Now the only point for discussion is that whether Kulamani is separated from his father or not. The party produces one unregistered plain paper deed which reveals that there was a partition among Parameswar Naik and Kulamani Naik. The deed being an unregistered deed is not to be accepted. However he produces another registered partition deed executed in the year 1972 bearing No. 810 in which partition was effected between Shri Parameswar Naik, his wife and both the sons. This deed cannot be accepted as this has been executed after 26-9-1970. But it has been mentioned therein that Parameswar and his brother Dolamani were separated from each other by a registered partition deed No. 1717 dated 18-6-1969. Again in 1-7-1969 there was a mutual partition among the parties and each is in separate possession.

As per the Act this deed is not acceptable. But the O.L.R. Amendment Act came into force from 2-10-1973. Prior to this the deed was executed and in the deed the facts stated cannot be taken as motivated. I am led to believe that there was mutual partition among Parameswar and his married son Kulamani.

As per the size of the family Parameswar is entitled to 16 standard acres and Kulamani is entitled to 14 standard acres.

Section 39(b) is a mandatory declaration. It reads-

(b) the transfer of any land by sale, gift or otherwise or the partition thereof by a person during the period beginning with the 26th day of September, 1970 and ending with the commencement of the Orissa Land Reforms (Amendment) Act, 17 of 1973 shall, if such person was holding land on the said day in excess of the ceiling area, be deemed to be void, anything contained in any law or agreement or in any decree or order of any Court notwithstanding;

(c) the lands so transferred or partitioned shall be taken into account as if the transfer or partition had not taken effect and the Revenue Officer may, at his discretion, ignore the selection made by the person of lands to be retained in his possession.

It has been held by the High Court in Bhikari Sahu v. State of Orissa ILR 1975 Cutt 843, that it is neither arbitrary nor capricious to have fixed the 26 September 1970 as the relevant date even though effective implementation of Chapter IV of the Orissa Land Reforms Act came only in 1973.

With the law so clear and strict there is no discretion which a Revenue Officer can exercise in respect of any transfer or partition effected during the interregnum. The partition which has registered in 1972 would be void. The recital in the deed cannot be accepted as evidence of partition in 1969 either. It would defeat the object of Clause (b) of Section 39 if a mere recital in the instrument of partition were to be accepted as evidence of partition prior to the 26th day of September 1970. The learned Revenue Officer was in error in exercising discretion. The order of 27 August 1975 cannot be sustained.

It has been argued that it would not have been necessary to provide in Clause (b) of Section 37-

but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September 1970.

if partition was a prerequisite to excluding the share of a major married son from the ceiling area of a "family". It is contended that even if the partition in the deed registered in 1972 is not recognised the fact of separation cannot be disputed and that therefore the share of Kulamani Naik cannot be clubbed with those of the other members of the family in determining the ceiling area of the family.

I would agree that the language of Section 37(b) does not make it necessary that there should be a partition when a major married son separates from the "family". If the members constituting the family are Hindus, the law as laid down in Asutosh Bath v. Vasyaraju Badareenarayan 38 (1972) C.L.T. 857.-

An unequivocal, unmistakable manifestation by a member or members of a joint Hindu family by his or their words or conduct of an intention to become separate is sufficient to effect the separation of their title and the severance of his or their interest, although division of possession, or partition by metes and bounds, does not take place or even if there is no separation in food and mess.

would also make it clear that it is not necessary that there should have been a document to prove separation. Once there is a definite and unmistakable indication on the part of a major married son to separate he cannot be counted as in member of the "family". His right to obtain and possess his share is unimpeachable. But, his share ought to have been divided and become his holding before 26 September 1970 if it is not to be taken into account in determining the ceiling area of his father. Merely because of a major married son has separated one cannot exclude 10 standard acres, or as in this case 14 standard acres, from the land recorded in the name of the father.

Parameswar Naik had been shown in the record-of-rights as the owner of different plots of land aggregating in area to 114.63 acres. This entry had been made following a partition registered on 18 June 1969. It has bees stated that 0.72 acres have been shown wrongly. This needs to be verified. On his own admission Parameswar Naik has a wife five daughters and two sons. The father of a Hindu joint family has the power to divide the family property at any moment during his life provided his sons are given equal shares with himself. Any claim that these shares were altered either by amicable settlement or through transfer whether by sale, gift or otherwise would require to be proved. There is nothing proved on record to show that the holding was divided between the father and the sons or that the shares were altered before the 26th day of September 1970. There is therefore no alternative to determining the ceiling area of Parameswar Naik on the basis that Kulamani Naik will not be considered a member of the family.

In the absence of partition of the land or transfer of a part of the holding to Kulamani Naik the holding of Parameswar Naik would remain what it was namely, 114.63 or 113.91 acres with the result that once he selects sixteen standard acres which he can retain for the family consisting of himself, his wife and six children the balance would have to be declared surplus and vest in Government.

A question has been raised as to what the advantage would be of excluding a major married son from the family if firstly Parameswar Naik''s ceiling area is to be reduced to sixteen standard acres instead of eighteen standard acres as it would have been had Kulamani not separated from the family and secondly if Kulamani is not to get even two standard acres. While it is not relevant to a decision in the present case it is useful to answer this and state the position in order to remove misgivings, on this score, in the minds of Revenue Officers. Firstly, exclusion of a major married son does not deprive him of his right under the personal law to get his share from out of the sixteen acres retained by the father. Secondly, separation of a major married son implies that he is recognised as a separate "person" u/s 37. It insulates him and his family from the rights and obligations of his father''s family under Chapter IV of the Act. Thus if there is any land which he holds in his own right it will not be clubbed with the holding of his father, mother or any other member of his father''s family for purposes of determination of either his own ceiling area or that of his father.

It is useful to recall that the expression "separation by partition or otherwise" requires that separation accompanied by partition of the land should be distinguished from separation in status without partition of the land. Also that, notwithstanding any other law, Section 19 makes it obligatory for a partition to be made by

(a) a registered instrument or

(b) a decree of a Court or

(c) an order of the Revenue Officer in the manner prescribed, on mutual agreement.

Partition effected in any other manner has to be ignored. It has been often emphasised by the Board of Revenue that the definition of a family u/s 37(b) is a secular definition designed exclusively for the purposes of determination of the ceiling area and that the ceiling which is imposed is on the holding of a landholder or raiyat. It has no relevance to rights and interests in property under personal laws nor has it any relevance to land which is not the holding of a landholder or raiyat.

With these observations, the order of the learned Revenue Officer is set aside and the case remitted for him to find out whether the major married son Kulamani Naik had in fact separated before the 26 of September 1970 and to determine the ceiling area of Parameswar Naik in the light of that finding. A fresh opportunity should be given to Parameswar Naik to select the specific parcels of land which he would like to retain and to indicate homestead lands and tanks, if any, not exceeding three acres in the aggregate which would qualify under Clause (a) of Section 39. The balance of the holding of Parameswar Naik should be shown as the surplus area before the draft statement so modified is confirmed u/s 44(1).

Revision Allowed. Case Remanded.

Revision allowed.