Menaka Bewa vs Revenue Officer and Others

P.K. Misra, J.—This writ application is filed challenging the orders passed by the authorities in a ceiling proceeding under Chapter- IV of the Orissa Land Reforms act (in short, the "O.L.R. Act").

One Ratnakar Nayak, who died in the year 1969 had two wives, His first wife Champabati died in 1940 and the second wife Menaka Bewa is the petitioner. Ratnakar had two sons namely, Sitanath and Radhanath through his first wife. He had two more sons, Sachidanda, Pramod and the three daughters, Ambika, Pra''mila and Kanak through his second wife. A ceiling proceeding bearing No. 82/75 was initiated against Sitanath in respect of all the properties left by Ratnakar. In the said proceeding though it was found that Sitanath and Radhanath, and two sons through the first wife were married and had separated, the proceeding was finalised by giving one ceiling to others. Appeal and Revision filed by Sitanath having proved futile, an application was filed before the Board of Revenue which was also dismissed. The present writ application has been filed by Menaka Bewa, the second wife of Ratnakar.

In course of hearing an interesting question was raised by the counsel for the petitioner. It was submitted that since Ratnakar had died leaving behind male and female Class -1 heirs, the various heirs succeeded to the property in accordance with the provisions contained in Section 6 of the Hindu Succession Act and in order to ascertain the shares in accordance with explanation in Section 6, it must be deemed as if there was a partition just before the death of Ratnakar. It is further submitted that in view of Section 19 of the Hindu Sucession Act, it must be taken that all the heirs held the property as tenants in common and not joint tenants. It is contended that in view of the deemed partition, it must be taken that all the sons of Ratnakar had separated in view of the deemed partition. In this connection, it has been emphasized that in Section 37 of the O.L.R. Act, the definition of a person does not include a major married son who had separated by partition or otherwise. It has been submitted that in view of the deemed partition, it must be taken that the sons had separated. Keeping in view the importance of the aforesaid question, Sri B.H.Mohanty, advocate, had been requested to assist the Court as amicus curiae.

In Section 6 of the Hindu Succession Act in order to ascertain the share of the deceased leaving behind many others, female Class-I heirs, it is deemed as if there was a partition just before the death of the deceased. If such deeming provision is taken to its logical end, it must be concluded that a joint family ceases and there is a separation. The principle enunciated in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others, to the effect that such deeming provision may be taken to its logical end, prima facie, supports the statement of the petitioner that in view of the deeming provision u/s 6 of the Hindu Succession Act, it must be concluded that on the death of a male heir leaving behind Class-I heirs, the joint family comes to end and all the heirs are separated. However, even though such contention appears to be attractive, it cannot be accepted in view of the direct decision of the Supreme Court reported in State of Maharashtra Vs. Narayan Rao Sham Rao Deshmukh and Others, , a decision rendered under the Maharashtra Ceiling Laws. In the aforesaid decision it has been held that a notional partition u/s 6 of the Hindu Succession Act does not ipso facto result in disruption of the joint family and the deemed partition is only for the purpose of ascertaining the share and the persons still continue to remain as a member of the joint family. Therefore, the above legal contentions raised at the bar cannot be accepted in view of the Supreme Court decision holding the field.

The learned counsel appearing for the petitioner raised several other contentions in support of the writ application. However, it is unnecessary to deal with all such points as in my opinion, the decisions rendered in the ceiling proceeding initiated against Sitanath cannot be sustained. The ceiling proceeding was initiated treating Sitanath as the ceiling surplus holder and treating his step-brothers, step-sisters and step-mother as members of his family. The definition of person states that the expression "person" includes his or her spouse, as the case may be, and their children. The two sons and three daughters of Ratnakar through his second wife Menaka could not have been treated as members of the family of Sitanath. Similarly, Menaka, the stepmother of Sitanath could not have been treated as a member of Sitanath''s family. If a proceeding would have been started against Menaka, the wife of Ratnakar, her two step-sons Sitanath and Radhanath also could not have been treated as members of her family. The definition states that the "person" includes his or her spouse and their children. By on stretch of imagination Sitanath and Radhanath can be said to be the children of Menaka. Since a proceeding had been initiated treating Sitanath as ceiling surplus holder, it must be taken that the authorities were required to find out the ceiling surplus land in respect of the property vested in Sitanath. In such view of the matter, the orders passed by the authorities in the ceiling case cannot be sustained. The orders passed by the authorities are, therefore, quashed.

This order shall not stand on the way of the authorities in initiating fresh proceedings in accordance with law, and if any such ceiling proceedings are initiated the same should be decided in accordance with law by considering all the questions arising in such cases without being influenced by any observations made in the original or the appellate order in the earlier ceiling proceeding.

Subject to the aforesaid observation, the writ application is allowed.

I place on record my appreciation for the able assistance rendered by Sri. B.H.Mohanty. There will be no order as to costs.