Nimmagadda Sambasiva Rao vs State of A.P., Land Reforms, Guntur

This is a revision filed u/s 21 of Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short "the Act").

The petitioner and his major son filed separate declarations under the provisions of the Act inrespect of the lands held by them. After due enquiry by order dated 5-11-1979 the Land Reforms Tribunal held that both of them are non-surplus holders. On appeals filed by the State the matter was remanded to the primary Tribunal on 6-1-1984 to consider the question whether the lands covered by certain agreements of sale were liable to be included in the holdings of the declarants or not. Questioning the said order of remand, the petitioner herein filed CRP No.912 of 1985. By order dated 4-8-1987 the said CRP was allowed in part holding that the petitioner''s major son was entitled to hold one standard holding of land separately, it was, however, held that the lands covered by agreements of sale have to be included in the holdings of the declarant, in view of the decision of the Supreme Court reported in State of Andhra Pradesh Vs. Mohd. Ashrafuddin, . With the said findings the matter was remitted back to the primary Tribunal for fresh computation. Meanwhile the A.P. Amendment Act (Act 13/86) to the Hindu Succession Act came into force. The petitioner thereupon raised the plea that by virtue of the said amendment his major unmarried daughter Nimmagadda Durga was also entitled to hold one standard holding separately, if so the family unit is not liable to surrender any land at all and there will be no surplus. As the Land Reforms Tribunal as well as the appellate Tribunal on appeal negatived the said contention, this revision is filed.

In support of the said claim the petitioner relies on a decision of this Court reported in A. Alivelamma v. Special Talisildar (LR), 1987 (2) APLJ 192, wherein it was held that Section 29-A of the Hindu Succession Act, which was inserted by A.P. Act 13/86, enables the daughter to claim her rights in the joint family property on par with her brothers, Section 29-A of the Hindu Succession Act reads thus :

"29-A : Equal rights to daughter in coparcenary property:--Notwithstanding anything contained in Section 6 of this Act-

(i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenery property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu Family the coparcenery property shall be so divided as to allot to a daughter the same share as it allottable to a son :

Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter;

Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter as the case may be.

(iii)any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenery ownership and shall be regarded notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv)Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986."

By virtue of this Section, the daughter becomes a coparcener in her own right by birth and shall rank with the son in all respects. However, the section imposes two restrictions, subject to which alone the daughter can claim equal share, one is that she should not have been married prior to the commencement of the Amendment Act. The other is that no partition should have been effected before the commencement of the Amendment Act. It is only if these two conditions are fulfilled the daughter will be entitled to claim an equal share as a son. In the decision A. Alivelamtna v. Special Tahsildar (LR) cited (supra), it was held that both the conditions mentioned above are fulfilled and as such the petitioner therein who was the unmarried sister of the declarant was entitled to hold a separate standard holding in her own right. This decision, though cited before the Tribunals below was, however, distinguished on the ground that the daughter of the declarant did not file any declaration, whereas in the reported case the sister filed a separate declaration along with her brother. In the present case the daughter of the petitioner did not file any declaration. This, in my view, cannot alter the legal position or effect the rights of the petitioner and his daughter. The petitioner''s daughter is not bound to file a separate declaration since she is not holding any land in excess of the ceiling area. Further in the declaration filed by the petitioner it was clearly mentioned that he has a major son and a major unmarried daughter and they were shown as members of the family unit of the petitioner. In the order of the Appellate Tribunal it is clearly stated in para 5 that it is not in dispute that the declarant had a major daughter as on. 1-1-1975. It is not the case of the State that she is either married or that there was any partition effected before the commencement of the Amendment Act. Since the facts are not in dispute it must be held that the unmarried major daughter of the petitioner is entitled to hold one standard holding separately. The Tribunals below erred in not following the judgment of this Court cited above.

CRP is accordingly allowed and the impugned orders are set aside and the Land Reforms Tribunal is directed to compute the holdings of the petitioner afresh giving the benefit of separate standard holding to the unmarried major daughter of the petitioner also. No costs.