Raghunath Ramchandra Kabra vs State of Maharashtra and others

B. N. Deshmukh, J.—This is a petition challenging the order of the Commissioner u/s 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. (hereinafter referred to as the Ceiling Act).

The facts are undisputed. The only question that is raised is whether the Commissioner was correct in excluding the children, born after the appointed day, namely, January 26, 1962 from calculating the total number of the members of the Hindu Undivided Family. For understanding this question, the facts to be noted are that the petitioner as the Karta of joint Hindu family filed a return u/s 12 of the Ceiling Act. He declared only 156 acres 09 gunthas as the total holding of the family. He also notified certain members of the family. In due course of verification of the land it was found that the total land held by the family was 159 acres 15 gunthas and not 156 acres 9 gunthas. This was the first conclusion drawn by the Sub Divisional Officer. The Sub-Divisional Officer also considered the report of the village officers in regard to the members of the family of the petitioner. The report perhaps showed that including a married daughter, there were 10 members when the report was made. The order of the Sub-Divisional Officer is so vague that it is difficult to understand which members of the family he took into account for coming to the conclusion that 162 acres would be the ceiling area permissible for the petitioner''s family. Arithmetically calculated, it would appear that there ought to be three more members besides the basic five so that the ceiling area could be 162 acres. Without making it clear whether the married daughter was excluded or the subsequently born children were included in or some of them were excluded, the Sub-Divisional Officer somehow came to the conclusion that 162 acres is the Ceiling area permissible for the petitioner''s family. On that footing he found that there was no surplus.

The Commissioner in suo motu proceedings u/s 45 of the Ceiling Act issued notice to the present petitioner and after hearing him passed the impugned order dated January 15.1969. In this order the Commissioner seems to assume that the married daughter has got to be excluded from consideration altogether. That would leave only 9 members in the family including the last 2 children, named Santosh and Saroji, who are respectively born on 5-4-1962 and 5-9-1964. The Commissioner further observed that the ceiling area is to be determined as on the appointed day, namely, January, 26, 1962, and subsequently born children must be excluded from consideration, excluding the last two children, Santosh and Saroji, whose birth dates have been given above, he found that the total number of the members of the family is 7. After permitting 108 acres as the basic ceiling area for 5 and adding 36 acres for the additional two members, the learned Commissioner found that 144 was the ceiling permissible for the petitioner''s family. Papers were directed to go back to the Sub-Divisional Officer for permitting choice of land to the petitioner. Being aggrieved, this petition has been filed

We have no doubt that the ceiling has got to be fixed as on the appointed day. We have further no doubt that this ceiling must be either of the individual or a family. Both of them are jointly described as a ''person'' by the provision of the Ceiling Act. The word ''person'' has been defined in clause (22) of section 2 and sub-section (1) of section 4 declares that subject to the provisions of this Act, no "person" shall hold land in excess of the ceiling area as determined in the manner hereinafter provided. There is, therefore, no doubt that the ceiling area as declared by the Act is to be fixed of every "person". It may be that some persons are individuals with no family at all and there may be others, who may have families. What is meant by ''family'' is also defined by the Act by clause (11) of section 2. That definition says that ''family'' includes a Hindu undivided family and in the case of other persons, the persons who are described in that definition. We are not referring to that part of the definition as it is not relevant for our purpose. Admittedly the petitioner before us is governed by the Hindu Law and his family will be the Hindu undivided family which is entitled to be considered as a ''person'' for the purpose of determining the ceiling area under the Ceiling Act.

Then again the report of the village officer as also the say given in writing by the present petitioner in the proceedings shows that in all there were 10 members consisting of the petitioner, his wife, 4 sons and 4 daughters. Out of these, one daughter appears to be married. That loaves 9 members for consideration. The Commissioner in his order makes it clear that he would exclude the last two children, namely, Santosh and Saroji, on the ground that they were respectively born on 5-4-1962 and 5-9-1964. In other words, children born after the appointed day are excluded by him from consideration. The only point that is raised before us by Mr. Mandlekar is that so far as the last child Saroji born on 5-9-1964 is concerned, the Commissioner may be right in view of the law already settled by the Supreme Court. Even if we assume that the members of the family as on the appointed day are to be found out, the child Santosh, who is born on 5-4-1962 was a child in the womb on 26th January 1962, the appointed day. Such a child in the womb is child born for the purposes of the Hindu Law. For the purposes of vesting of the joint family property in a subsequently born child, in certain cases the fictional date for the purpose of determining his rights is to be taken back by 270 days from the actual date of birth. It is on this footing that according to Mr. Mandlekar there would be only 8 members in the family and they are in excess of 3 besides the basic family of 5. If in the case of these 3 members additional acreage at the rate of 18 acres per head is permitted to be added, the permissible ceiling of the petitioner would be 162 acres and there would be no surplus. It is the correctness of this argument which is required to be decided.

The learned Additional Government Pleader drew our attention to the judgment of the Supreme Court in Raghunath Laxman Wani and Others Vs. The State of Maharashtra and Others, In this, judgment, the Supreme Court points out that the members of the family who could be relevantly considered for the purposes of determining the ceiling on the appointed day, are only those members who are in existence on the appointed day and subsequently born children are to be excluded. Except in those case which are specifically provided for by the Act, the ceiling is to be determined only once and that has to be done with reference to the appointed day. There is no doubt that these propositions are clearly laid down by the Supreme Court. However, the facts before the Supreme Court do not show that they were considering the case of any child born within 270 days from the appointed day. The judgment of the Supreme Court may be relevant to hold that the relevant date is the appointed day not only for the purposes of determining the ceiling, but also for determining the number of members of the family.

We have already indicated that the ceiling which is to be determined u/s 4 of the Ceiling Act is of every ''person'' and that ''person'' may include a family. The Hindu undivided family will have, therefore, to be considered according to the personal law of Hindus. In certain respects the Hindu Law takes cognizance of a child in the womb. The two important events which attract the rights of the members of a family in relation to the family property are the alienation by the Karta and the partition of the family property at general partition. While considering the rights of parties who can challenge the alienation by a Karta as not being binding on the members of the family for various reasons permissible under the Hindu Law, we find in Mulla''s Hindu Law the relevant discussion in paragraph 270 at page 340 of the Fourteenth Edition. That paragraph considers the alienation by coparceners in excess of their powers and the right to set it aside at the instance of the other coparceners.

What is broadly laid down is that a coparcener who was in existence at the time of completion of the alienation can challenge the alienation by showing that it was in excess of authority or not according to the provisions and principles of Hindu Law. The further question that is necessary is that the persons in existence are not only those persons who are physically present at the time of alienation in this world, but also include those coparceners who may be in the mother''s womb at the time of the transaction and are born sub-sequently. The right of such a child in the womb to challenge the alienation precisely depends upon the principle that a child in the womb is child born and if the transaction takes place when the child was in the womb, it is deemed to be a transaction in the presence of a person who may be fictionally deemed born. In the same paragraph there is a note with the title "rights of a son in his mother''s womb". Under this Note the occasion when a partition takes place in the family is considered. Supposing four persons in existence do partition the family property without taking cognizance of a child in the womb of the mother and a son is born subsequently within 270 days from the date of the partition, what is the right of such a subsequently born son ? In the case of partition also he is deemed to be a person in existence in the eyes of law since he was born within 270 days from the event, namely, the partition. In the same manner if a Hindu dies and a posthumous child is born within 270 days to him, the subsequently born son by the earlier mentioned principle will also be entitled to the right of survivorship in the family property. The incidents of the subsequent birth within the gestation period at least in the cases of 3 incidents shows that under the Hindu Law a child in the mother''s womb is deemed as a child born.

If that is so, what is the position in relation to the Ceiling Act. The Ceiling Act wants to determine the optimum ceiling area of a joint Hindu family and the members of that joint Hindu family will be all these who have a present right in that property. The child in the womb being child born, Santosh who is born on 5th of April 1962 i.e. within about 2 months and 11 days after the appointed day, must be deemed to be a child born in the family for the purposes of getting a vested right by birth in that family, In our view the Commissioner was not correct is excluding Santosh from consideration, though he was right in eliminating Saroji, the girl born on 5th September 1954 from consideration. If Santosh is thus included in the members of the family, there would be 4 sons, 2 daughters and the two pa rents in the family of the petitioner on the appointed day. This family of 8 members will be entitled to the basic ceiling of 103 acres plus 18 acres per head for the additional 3 members. Therefore, the ceiling area would thus be 162 acres. As the total land of the family is only 159 acres 15 gunthas, it is less than a ceiling area. The decision of the Sub-Divisional Officer that there is no surplus in relation to this family appears to be correct. The Commissioner was obviously partly right in accepting the proposition that the ceiling must be with relation to. the appointed day and also n relation to the existing members. However, there is a fictional extension of the number of members of the Hindu family under the principles stated above. Since that was not taken into account by the Commissioner, he came to a contrary conclusion. We thus hold that the permissible ceiling area if of the petitioner''s family is 162 acres and as such, there is no surplus.

The Commissioner''s order is thus quashed and that of the Sub- Divisional Officer restored. In the circumstances of this case, rule is made absolute with no order as to costs.