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Judgment
Ramachandhra Rao
This is a Revision Petition under Sec. 21 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973, (hereinafter referred to as the Act) to revise the Order of the Land Reforms Appellate Tribunal, dismissing the appeal preferred against the order of the Land Reforms Tribunal, Madanapalle in C.C. No. 1385/1 GN/75 dated 30-9-1975, determining u/s 9 of the Act, that the family unit of the petitioner (the declarant) was holding 0.2388 standard holdings, in excess of the ceiling area. The petitioner Sathagadi Inayathulla Saheb, filed a declaration u/s 8 of the Act in respect of the lands in Muthukur village, Punganoor. Taluk, Chittoor District, stating that the family unit consisted of himself, his wife Bibi John, his major son Ektyar Bhasha, and his daughter-in-law Nifisa Begum. The declarant claimed that survey No. 59/2, is ancestral land, that Survey Nos. 5, 7, 8, 9, 347/1 and 348/9 are lands held by his wife, and the rest of the lands are his self acquired lands. In an extent of 0-50 cents in Survey No. 245/2 a rice mill was constructed prior to 1-1-1970. Land of the extent of Ac 4.06 cents in Survey No. 7/2 of Muthukur village, Punganoor, Taluk, Chittoor District was shown as having been alienated to one K. Krishnaswami Naidu.
The Land Reforms Tribunal held that the declarant being a Muslim his major son had no share in any of the lands, that the family unit consists of only the declarant and his wife, that the and shown as alianted to K. Krishnaswami Naidu, being subsequent to 24-1-1971, was taken into account in computing the extent of the declarant''s holding, that the family unit, was holding I. 2388 standard holdings that it is entitled to held one standard holding under the Act, and determined that 0.2388 standard holdings is the excess over the ceiling area which the declarant was liable to surrender.
On appeal the only contention urged before the Land Reforms. Appellate Tribunal was that the major son of the declarant was also untitled to an equal share along with the declarant, in both the ancestral and self-acquired properties of the declarant, and therefore the same should be excluded in computing the holding of the declarant. The Appellate Tribunal rejected this contention holding that according to Muslim, Law, the major or minor sons of the manager of the family, have no separate shares in the properties of their father while he is alive, and accordingly dismissed the appeal.
In this revision petition it is contended by Sri R. Venugopal Reddy, learned counsel for the petitioner, that under the Muslim Law, the major son has some interest in the father''s properly, that he must be treated as an ''owner'' of the said share within the definition of ''owner'' in section 3 (n) of the Act, and that he must be deemed to be holding the said share within the definition of (holding u/s 3 (i) of the Act. In support of his contention, be relied upon the rulings in Aminaddin Munshi Vs. Tajaddin and Others, Mst. Bibi Bintul Fatma and Another Vs. S.M. Aftab Ahmad,
I find it difficult to accept this submission. In Mulla''s Principles of Mahomedan Law, Sixteenth Edition, paragraph 57 of page 54 which is relied upon by the learned counsel reads as follows :--
Joint family and Joint family business :
(I) When the members of a Mahommedan family live in commensuality, they do not form a joint family in that sense in which that expression is used in the Hindu Law. Further, in the Mohomedan law there is not, as in the "Hindu law, any presumption that the acquisitions of the several members of a family living and messing together are for the benefit of the family. But it during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the members in whose name they stand.
According to the earned another, there is no presumption that the members of Mohomedan family who live in commensuality form joint family as in the case of members of a Hindu joint family nor is there any presumption that the acquisitions by the several members of the family living and messing together, are for the benefit of the family.
Sri Venugopal, Reddy, however contended that in the instant case, the father had stated in his deposition before the Tribunal, that Ac. 12.50 cents in Survey No. 59/2 is ''Pitrarjitham'' i.e. ancestral land, that survey Nos. 5, 7, 8, 9, 377/1 and 348/9 are his wife''s lands, and the rest are his self acquired properties and that it must be held that all the lands acquired by him from out of the income of the ansestral properties constitute joint family properties in which the son will be entitled to an equal share.
Here again, there is a fallacy in the argument because the mere fact that the declarent had stated that survey No. 59/2 was his ancestral land, it does not acquire the character of a joint family property in the hands of the father as in the case of Hindu Law. The properties which the declarant inherited from his father, constitute his own properties in which his sons would not be entitled to a share during his life-time.
Sri Venugopal Reddy, contended that the father made a statement in the declaration that himself, his wife and son are joint family members and therefore all the properties shown in the declaration should be treated as joint family property.
But I do not find any such statement in the declaration. The declarant had merely shown the members of the family unit as consisting of himself, his wife, his major son and his son''s wife but he did not mention that they were members of a joint-family nor did he describe the properties as joint-family properties. A major son and his wife are not members of a family unit as defined in the Act. Therefore the inclusion of their names in the family unit is erroneous. The verification officer also stated that only the declarant and his wife were members of the family unit, and that his major son and his wife were living with the declarant. According to Mohomedan law the son or the daughter of the declarent has no share in the properties of the father or the mother. They declarant did not lay in his deposition that his properties were joint family properties and that his major son has share in the said properties. There is no plea in the declaration that the properties of the declarant constitute joint family properties nor any material is brought on record in support of the said plea. The cases relied upon by the learned counsel for the petitioner have also no application.
In Aminaddin Munshi Vs. Tajaddin and Others, t was held as follows:--
Where members of Mahomedan family live in commensality posessing the family property in common and in jointness, the acquisition by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family not because of presumption regarding acquisition skin to the joint Hindu family, but because such person is in judiciary relationship with other members and has an obligation to discharge towards other members, and if any property as acquired stands in the name of such person, the burden of proving that it was his self acquired and not the property of the joint family will be on him.
The facts of that case show that the properties originally belonged to one Jamaddin and that he and 40 years prior to the suit leaving his suriving two sons Tamijuddin and Najamuddin, who became owners in two equal shares and were in joint possession thereof. Thereafter Najamuddin and Tamijuddin died and their children became entitled to the properties. They were all living jointly and messing together they were possessing the properties in common and in jointness and some more properties were acquired out of the income of the joint properties. The first defendant in the said case set up a plea that the subsequent acquisitions in his name were not joint family properties. Negativing the said plea, it was held that a presumption arose that the subsequent acquisitions were made for the benefit of the joint family, that the 1st defendant occupied the position of a managing member and was in the relationship of fiduciary character to the other members of his family and had certain obligations to discharge with reference to the other members or the family and that it was for the first defendant to show that the property acquired in his name was not the property of the joint family.
In C. K. Setty vs. Abdul Khader AIR 1956 Mys. 14 it was proved that the parties who were Muslims lived together and were all attending to the business in a cloth shop and out of the profits of the cloth shop, sites were purchased and the plaint schedule building constructed. On these facts, the learned judges came to the conclusion that the conduct of the parties and the manner in which the properties were dealt with and enjoyed considered as a whole justified the conclusion that they were joint properties of the parties.
In Mst. Bibi Bintul Fatma and Another Vs. S.M. Aftab Ahmad, the mother died leaving two daughters and a son as her heirs. The son was managing the movable and immovable properties on behalf of himself and the daughters and the son had no independent property of his own The daughters filed a suit and sought a temporary injunction restraining the defendant from withdrawing monies in various bank accounts and also dealing with ornaments kept in lockers. On those facts, the learned Judges held that the daughters (Plaintiffs) had made out a prima facie case with regard to title to the bank accounts and jewellery in the lockers and their Lordships followed the ruling of the Calcutta High court in Aminaddin Munshi Vs. Tajaddin and Others, referred to above.
The aforesaid rulings are not applicable to the facts of the present case. Here, there is no pleading or evidence to show that the declarant and his son had jointly inherited any properties or that they had jointly acquired any properties or that they were joint owners of any property or business, and that the acquisitions were made from out of the income of such joint properties or business. The mere fact that the declarant and his major son were living jointly and messing together, would not make the properties inherited by the father and the subsequent acquisitions made by him joint family properties. I do not find any error in the orders of the Tribunals below which warrants interference in revision u/s 21 of the Act. The Revision petition is therefore dismissed with costs. Advocate''s fee Rs. 100/-.