Collector, Koraput vs Badar Pujari and Others

K.S. Raghupathi, Member

Collector, Koraput has moved the Board of Revenue to revise, u/s 59(2) of the Orissa Land Reforms Act, the order of the Tahsildar. Nowarangpur passed on 19 February 1975 in his case OLR No. 54 of 1974.

These proceedings were started by the Revenue Officer, Nowarangpur, u/s 42 of the Orissa Land Reforms Act, in respect of Pitambar Pujari, son of Guru Pujari of village Aunli. It was found that 68.97 acres of land had been recorded jointly in the names of Pitambar Pujari, Balaram Pujari. Moniram Pujari and Narasingho Pujari, all sons of Guru Pujari. During enquiry it emerged that Pitambar Pujari had died leaving a wife, three married sons and two grandsons. The other three brothers had their wives and nine children. A draft statement was published treating, all the twenty four persons as one "family" and proposing a ceiling area of 18 standard acres.

The three brothers, Balaram, Moniram and Narasingho and Badar representing the deceased Pitambar filed an objection and stated during the hearing that although they were living together they had in fact separated and divided the lands and ought not therefore to be treated as one "person" coming within the definition of "family" u/s 37 (b). They also objected to the classification of some of the lands. The objections were overruled and the draft statement was confirmed as it was and finally published.

Later a petition was filed before the Collector to move the Board of Revenue for revision. In moving the Board the Collector has suggested that far from treating the joint holders as four separate "persons" the Board of Revenue ought to hold that they are a body of individuals and that therefore the ceiling area should be reduced from 18 acres to 10 acres.

It is conceded by the learned Standing Counsel appearing for the Collector that the three brothers and the son of the deceased fourth brother together with their wives and children would not constitute a "family" in terms of the definition in Section 37(b) and that the Revenue Officer had erred in treating them as a "family".

The question then is whether they constitute a "body of individuals" and thus are one "person" or whether they are separate individuals each constituting a "person". The Board of Revenue has held in Land Reforms Commissioner v. Sriram Mahakud 43 C. L. T. 533, that joint recording will be presumptive of joint ownership as a "body of individuals" but that it is open to the individuals to prove that title has been separated and that they are not a body of individuals. In the present case, it is argued, for the Collector, that as they are living together they would be a "body of individuals" constituting only one "person". On the other hand, it has been claimed by the Petitioners, from the beginning that they are all separated and that the property is not enjoyed jointly. It is their case that it has been so for more than fifteen years. The ages of the four brothers, the sizes of their families and their conduct are such that it lends credibility to the contention of separation. It is not necessary that there should have been a document to prove separation in the case of a Hindu Joint Family.

P s was held in Asutosh Rath v. Vasyarraju Badareenarayan 37 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. Once there is a definite and unmistakable indication of a member to separate, his right to obtain and possess his share is unimpeachable, and neither the co-sharer can question it nor can the Court examine his conscience to find out whether his reason for separation are well founded or sufficient.

It has also been held by the High Court in Ramanath Panda v. State of orissa 1971 C. W. R. 208.

Partition amongst the members of the joint family is effected for various reasons. Sometimes the family becomes unwieldy and it becomes uncomfortable to remain together. In many cases positive dissensions affect the peace and comfort of joint living. In recent times even if there is no dissension or discomfort, people decide to separate to avoid injurious attack on their property- rights by law. The Land Reforms Act, Tenancy Laws, Wealth Tax-Act, Income Tax Act and Estate Duty Act have made serious inroads into property rights. Even a family consisting of only the father and the son have to sacrifice their income and interest in their lands if they continue joint. Under the Land Reforms Act and the Tenancy Laws a ceiling has been fixed and anybody having lands more than the ceiling shall have to surrender the same for a small compensation. Take for instance, each individual can have 20 standard acres of land under the prescribed ceiling. A family consisting of a father and four sons have got 100 acres of land. If they remain joint they have to part with 80 acres, as a family is taken to be a unit. On the other hand, if they separate, each can possess 20 acres of land. Thus, a partition so effected to derive the maximum advantage under the law cannot be said to be a sham transaction. Exercise of one''s right as sanctioned by law cannot be discountenanced.

Even after effecting partition the erstwhile members of the joint family who have ceased to be coparceners may agree to live together for economy and convenience. Joint messing has got its own blessing.

This judgment of the High Court was before the. Amendment Act of 1973. Since then the ceiling area has been reduced to ten standard acres except to the extent allowed u/s 37-A. The entire Section 37 has been amended. The amendment which is more secular in objective defines a "family" irrespective of whether such a family is a Hindu, Mohammedan, Christian or other family. That definition of what one could conveniently describe as a "ceiling family" secures for its members a concession through the "proviso" to Section 37-A but at the same time dubs their individual and joint holdings of land for purposes of determination of the ceiling area. There can be many families as defined in Section 37 (b) within a Joint Hindu family.

Personal laws in regard to property, inheritance, succession and separation have to be distinguished from the specific provisions in regard to the rights and liabilities under the Orissa Land Reforms Act. Thus, after members of a Hindu Joint Family have separated, some of them would nevertheless constitute a "ceiling family" if they come within the definition in Section 32(b). In determining the ceiling area of such a "family" it is immaterial whether the members constituting such a family hold lands individually or jointly. This is made clear in the Explanation u/s 37 which reads -

Explanation - For the purposes of this section all lands held individually by the members of a family or jointly by some or all the members of a family shall be deemed to be held by the family.

Coherent construction would lead to the conclusion that in deleting reference to a Hindu Joint Family and in defining a "family" is a secular fashion as has been done in Clause (b) of Section 37 it could not be the intention that a Hindu Joint Family should be placed at a disadvantage in relation to a "family" as a defined in Clause (b) of Section 37. It would be tendentious to treat a Hindu Joint Family as a "body of individuals". Joint recording of individuals, whether they belong to a Joint Family or otherwise, is quite a different juridical concept, presumptive of Joint ownership and common economic purpose. In the circumstances of the present case, one would accept the plea that, notwithstanding the joint recording, Balaram Pujari, Moniram Pujari, Narasingho Pujari and Badar Pujari have no common economic purpose and should each be treated as a separate "''person" in terms of Section 37(a). It is for the Revenue Officer to "satisfy himself whether any of these "persons" will come also within the scope of Section 37(b).

The Revenue Officer was in error in not giving an opportunity to the "person" to indicate the parcels of land which he wishes to retain. This right is inherent whether the case is one where a return is submitted u/s 40-A or one where proceedings are initiated in terms of Section 42. The selection made by a person can be ignored only in terms of Section 39 (b) and (bb).

In so far as classification of land is concerned, it must not be overlooked that the classes of land for purposes of the Orissa Land Reform Act are defined in Sub-section (5)(a) of Section 2 of the Act. Different criteria are adopted by the settlement authorities for classification of land in the Record-of-Rights. Therefore the two classifications need not necessarily be the same. If paddy was not grown or cannot be grown on "unirrigated land" it would come within Class IV and not Class III.

With these observations the orders of the learned Revenue Officer are set aside and the case remanded to him to hear the objection to the draft statement afresh and proceed in accordance with the law.

Motion for revision accepted.