Manoharrao Madhavrao Patil vs State of Maharashtra and others

G.N. Vaidya, J.—The petitioner, in the above Special Civil Application, was declared to be a surplus holder to the extent of IS acres and 3 gunthas.

The petitioner had his wife, 7 major sons, one minor son and two minor daughters. According to the petitioner, in the year 1952-53, his major son, Madhavrao Manohar, brought a suit against him in the Court of the Munsiff Magistrate, Udgir, for the declaration of his right of possession and ownership of lands Survey Nos. 121, 135, 132 and 137 admeasuring about 41 acres of lands and for other reliefs, being Suit No. 215/1/1952-53. The suit ended in a consent decree passed in favour of Madhavrao on January 21, 1953.

In 1955, two other major sons, viz, Sheshrao and Trymbak filed Civil Suit No, 10/1 of 1955 in the same Court, against the petitioner for the declaration of their right of possession and ownership in respect of other lands admeasuring 84 acres. That also ended in a consent decree on January 1, 1955.

It was contended by the petitioner before the Surplus Land Determination Tribunal that as a result of the said two decrees in favour of the three major sons, the holdings of the said major sons should be excluded as per the terms of the decree from the petitioner''s holdings as they had become separate from him.

The Surplus Land Determination Tribunal ignored the consent decrees on the ground that the consent decrees were not given effect to right from 1953 till the date of the order of the Tribunal and the name of the holder Manoharrao appears as holder on September 26, 1970, except for the few pencil entries in the name of his sons which were not verified by any authority.

The area covered by the decree in favour of Madhavrao was 41 acres and 11 gunthas and the area covered by the decree in favour of Sheshrao and Trymbakrao was 83 acres and 38 gunthas. It is not disputed and cannot be disputed that having regard to the number of members in the family, if these lands are excluded from the holdings of the petitioner, the petitioner cannot be declared as a surplus holder under the Ceiling Act.

The learned Revenue Tribunal confirmed the said finding of the Surplus Land Determination Tribunal. The learned Revenue Tribunal also ignored the consent decrees, on the ground that there was nothing in the said decrees which clearly stated that there was a partition. The Revenue Tribunal held that as the State was not a party to these decrees, the State was not bound by these consent decrees. The findings of the two learned Tribunals are challenged in the above Special Civil Application by the petitioner.

Mr. Solshe submitted that the two learned Tribunals erred in ignoring the consent decrees. He argued that there was nothing under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 which prevented the operation of the principles of Hindu Law regarding the nature and effect of the partition effected by consent decrees and the moment the consent decrees were passed, there was a partition in the eye of law between the father and the three major sons, as a result of which the father and other members of the family ceased to have any right, title or interest in the property agreed to be allotted to the sons.

The contention must be upheld. Hindu Law on the point is well settled: "The effect of a partition is to dissolve the coparcenary, with the result that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs." (See para 340, page 429 Mulla''s Principles of Hindu Law, 14th Edition, 1974).

The two learned Tribunals apart from ignoring the aforesaid two consent decrees, also ignored the explanation contained in sections 8 and 10 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The restriction on transfer are contained in section 8 and the explanation to section 8 which is adopted in the explanations to sections 10 and 11 also.

Explanation to section 8 reads as follows:-

In this section, "transfer" means transfer, by way of sale, gift, mortgage with possession 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 2970), 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,

It is, therefore, clear that the word "transfer" in sections 8 and 10 cannot include "transfer" under a suit instituted before the 26th day of September 1970.

The Revenue Tribunal was not right in ignoring the decrees merely because the State was not a party to that decree. In fact it has no jurisdiction to ignore the decrees which were passed before September 26, 1970, as the word "transfer" cannot include transfer or disposal under a decree passed in the proceedings prior to that date.

The learned Tribunal found confusion due to the name of the petitioner being in ink and the names of the sons in pencil in the Record of Rights. The Record of Rights must be according to the valid decrees passed by the Civil Court; and it there is delay in making the entries about the decretal rights, the consent decrees or any other decree passed by the Civil Court would not lose their value. The matter would have been different if the decrees were passed in proceedings after September 26,1970, as stated in the Explanation to section 8. But the decrees were passed in the present case before September, 1970. The learned Tribunals were bound to act on those decrees.

Another reason given by the two learned Tribunals for not taking into consideration the consent decrees was that those decrees do not appear to have been acted upon by the parties. It is difficult to understand this part of the reasoning. There was no material before the two Tribunals to show that the decrees were not accepted after they were made in the names of the decree holders.

In the result, the Special Civil Application is allowed. The declaration made by the learned Tribunal about the surplus holding of the petitioner is struck down; and instead, it is declared that the petitioner is not a surplus bolder under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as amended up-to-date.

The rule is made absolute. In the circumstances of the case, there shall be no order as to costs.