Smt. Daya Wanti vs Deputy Custodian General and another

D.D. Thakur, J.—This is a petition under Article 226 of the Constitution of India and is directed against the order of the Deputy Custodian

General, Jammu, dated 13 10-1972 whereby he cancelled the allotment made in favour of the petitioner under Cabinet Order No. 578-C of

1954. The facts which led to the filing of this petition briefly put, are these:

Before 1947 the petitioner, her father Inder Singh and her mother Kartar Kaur constituted a joint family. The family lived in Rawalkot Tehsil

Plandari at present under Pakistan occupation. In 1947 as a result of Pakistan aggression the family migrated to Jammu and settled in the refugee

camp at Nagrota. A ration-card was also issued to the family in which Inder Singh, the father of the petitioner was shown as the head of the family.

It is stated in the petition that Inder Singh was ailing for a long time before his death and because of his illness the petitioner's name was substituted

as head of the family for that of Inder Singh by the Tehsildar Ranbirsingh Pura vide his order dated 29-3-1967. Inder Singh died in January 1971

whereas his wife had died long before him. Respondent No. 2, therefore, made an application before the Tehsildar Ranbirsingh Pura that Inder

Singh and his wife, Kartar Kaur, having died issueless the land held by Inder Singh and his family be allotted to him to make up his deficiency. On

this application, it appears, that the Tehsildar obtained the report of the Patwari who reported that Inder Singh and Kartar Kaur had died and that

the petitioner had married one Avtar Singh of Delhi. On this report of the Patwari the Tehsildar recommended to the Provincial Rehabilitation

Officer that the land may be allotted in favour of respondent No. 2.

The Provincial Rehabilitation Officer summoned the petitioner. The petitioner objected to the proposed cancellation on the ground that during the

lifetime of her father, Inder Singh, she had been made the head of the family and an entry to that effect had been made in the ration-card as she

was a 'Khana Nisheen' Dukhtar. Being a Khana Nisheen Dukhtar she was permanently residing in the house of her lather. She further pleaded that

as her husband refused to live with her at her parental house the marriage had been dissolved. Regarding payment of Rs. 3500/- as ex gratia grant

to the petitioner's husband, it was stated that the same could not debar her from retaining the land in her allotment. The PRO in the course of

enquiry found vide his judgment dated 2-3-1973 (sic) that the dissolution of marriage between the petitioner and her husband was not proved but

he held that the allotment of the petitioner could not be cancelled in view of S. R. O. No. 328 of 1969. Against this order of the P. R. O.

respondent No. 2 filed a revision petition before respondent No. 1 who allowed the same vide his order dated 13-10-1972 and held that the

petitioner on her marriage with Avtar Singh stood transplanted in the family of her husband and was thus not entitled to retain her own allotment.

He accordingly allowed the revision, set aside the order of the P. R. O. and cancelled the allotment. As stated earlier this petition is directed

against the aforesaid order of the Deputy Custodian General.

The petition came up for hearing before Jaswant Singh J. sitting singly who was of the opinion that important question of law being involved the

petition should be heard by Full Bench. This is how the petition is before the Full Bench.

The petitioner herein contended that she having become the head of the family in place of her father Inder Singh, was entitled to retain the

allotment and the order of the Deputy Custodian General cancelling the allotment was patently erroneous in law and that having become the sole

surviving member of the family the interests of her parents in the land had devolved on her under Rule 15-B (2) of Cabinet Order 578-C added by

SRO No. 378 of 1969.

On behalf of the respondent it has been contended that in consequence of the petitioner's marriage with Avtar Singh the petitioner had become a

member of the family of Avtar Singh and therefore she was not entitled to retain the land.

The short question therefore which falls for consideration is:

Whether, the allotment of land made in favour of a displaced family is liable to be cancelled if the girl who is the sole surviving member of the family

and who is entered in the ration-card as head of the family is married out of her parental house.

SRO 328 of 1969 whereby R. 15B (2) was added to Cabinet Order No. 578-C of 1954 reads as under:

After an allottee has died or otherwise ceased to be in possession of the allotted land his interest in the allotted land shall devolve on the other

members of his family (in whose favour allotment of land had been originally made or regularised under the said Rules) under the rule of

survivorship and not on those who were not included in such family at the time of first valid allotment.

On the strength of this Rule it is contended that the petitioner is solely entitled to retain the whole of the allotted land even after the death of her

parents who were the members of the family at the time of the allotment, It is further submitted that the intention of the Government in inserting the

aforesaid Rule in Cabinet Order No. 578-C was to give absolute rights to the members of the family in whose favour the allotment was made.

Otherwise, it is argued, the rule of survivorship would not have been made applicable to the devolution of interest in the allotted land.

There cap be no two opinions that on the death of the father and the mother of the petitioner the petitioner became the sole surviving member of

the family and that the interests of her parents in the allotted land devolved upon the petitioner under the rule of survivorship. But the question as to

what should be the position in the event of the petitioner marrying out of her parental house cannot be decided on the anvil of this rule but has to be

considered on the basis of the rest of the paras contained in Cabinet Order No 578-C of 1954 and the general principles of law. The rule is silent

as to a contingency where the sole surviving member of the family in whose favour the allotment has been made happens to be a girl and is married

out of the parental house.

A reference to the provisions of the Cabinet Order No. 578-C would show that the intention in promulgating the aforesaid Cabinet Order was

to lay down the precise terms the manner in which the allotments had to be made and cancelled, the conditions necessary to be satisfied to entitle a

person to allotment.and the units of allotment. Relevant clauses of Para 12 of die aforesaid Cabinet Order read as under:

Cancellation of spurious allotments of land.-

(i) No family shall retain with itself more than one allotment of land exceeding the unit prescribed in Para 2 or made under a valid order before the

coming into force of this order.

(ii) If any family has secured more than one allotment of land as indicated in clause (i) in its favour, it may within one month or the date of the

commencement of this order communicate the fact to the Tehsildar of the Tehsil in which it has been allotted land or to the Provincial Rehabilitation

Officer, indicating at the same time the particular allotment which it wants to retain with itself. Upon such information being communicated, the

Tehsildar or the Provincial Rehabilitation Officer shall cancel the spurious allotment or allotments made in favour of such family.

A perusal of this para would show that the Cabinet Order No. 578-C of 1954 discountenanced the idea of a family having more than one

allotment in its favour. That was obvious because the paucity of the land at the disposal of the Government in comparison to the number of

displaced persons to be settled on agricultural lands did not permit an inequitable distribution of land amongst the displaced families. It is therefore

certain that Cabinet Order No. 578-C of 1954 did not permit retention of more than one allotment by the same family at the same time.

The next question which therefore arises is: Do the two families namely the one of which the petitioner was the head and later its sole surviving

member and the family of Avtar Singh to whom the petitioner was married unite together to constitute one family, or they remain as separate

families so as to be entitled to separate allotments and benefits?

In my opinion in a case of this nature the girl's family stands merged in that of the husband as there does not remain behind any member in the

family after the marriage of the girl to maintain the existence and the entity of the family. There may be cases where the husband and wife live

separately even after marriage because of judicial separation or for any other similar cause. That may be a different case altogether. We are not,

however, concerned with those contingencies in this petition particularly when the finding has been that the story of divorce between the spouses is

not proved.

A marital union between a man and a woman does not necessarily bring about an extinction of the families, of the spouses nor do the spouses

constitute a third family. But in a case where one of the two spouses is the sole surviving member of his or her family there remains no trace of

human membership behind, which is a sine qua non of a family.

The following definition of the word ""family"" occurring in Explanation to proviso to Para 2-C of Cabinet Order No. 578-C of 1954 will be

helpful in resolving the controversy.

Explanation- ""Family"" for purposes of this order will, in case of non-camp displaced persons mean arid include husband, wife, unmarried children,

infirm parents and other relatives actually living together and in case of camp displaced persons such members as were entered in their ration-cards

except where a family has been split up to secure more than one ration-card.

The petitioner's family was a family of displaced persons. The three members entered in the ration-card were the petitioner, her father and

mother. The father and mother were no more in the family due to their death, whereas the petitioner had ceased to be the member of the family due

to her marriage. Who then constitutes the family. It is difficult to understand.

The concept of family in the history of human civilization and culture is very old. Even in the primitive stages of the society there was a definite

idea of maintaining a family. According to the Hindu Law joint family pre supposed existence of community and commensuality of interests

between the members. Marriage according to Hindu Law was treated to be a union between a man and a woman for life. In the context of these

fundamental notions about family it is difficult to accept the submission that even after marriage of the petitioner with Avtar Singh her parental family

of which she happened to be the sole surviving member, continued to exist so as to be entitled to retain the allotment made in its favour. As a direct

concomitant of marriage the spouses shared with each almost everything- -their residence, their income and expenditure, their abode and similar

other interests. These concomitants in my opinion are some of the basic attributes of a family. They would have shared their allotments as well but

for the prohibitional provisions con-tamed in Para 12 quoted above.

It was contended by Mr. S.P. Gupta that a girl who remains the sole surviving member of a family continues to be a displaced person for the

purposes of Cabinet Order No. 578-C and therefore she cannot be disentitled to bold the allotment only because she has married. The argument

is not well founded and is based on a misconception. The question of title to hold an allotment has to be considered in relation to the directives

contained in the rules that in no case can a family hold more than one allotment. If the interpretation placed by Mr. Gupta is correct then anomalous

results are likely to follow.

Take for instance a case where four brothers constituting one family may marry four girls who may be the sole surviving members of their parental

families. In such an event all the four girls on then marriage with the four brothers constituting one family would bring along with them four

allotments whereas the fifth will be in the name of [he family which consists of. the brothers who married the girls. This would mean that there may

be cases wherein a family may in due course of time either by coincidence or by arrangement hold more allotments than one. This could never be

the intention underlying the promulgation of Cabinet Order No. 578-C.

Reliance is placed by the counsel for the respondent on a Division Bench judgment of this Court in Shant Kaur v. Divisional Commr., decided

on 17-4-1973 to which I was a party. A question arose in that case as to whether an unmarried girl being the sole surviving member of a family in

whose favour allotment had been made, loses on her marriage her right to retain the allotment. Dealing with the question the Division Bench

observed as follows:

If a family ceases to exist for one reason or the other, such as death of a member of the family, renunciation by a member of the family, or marriage

by a female of the family, then in that case the question of holding the allotment by the family does not at all arise. In the present case Mst. Shant

Kaur, having married Charan Singh was transplanted into the family of Charan Singh bringing about total extinction of the family of Bhagwan Singh

to which she originally belonged at the time of allotment.

We are in agreement with the view taken by the Division Bench (supra) but would like to make these observations subject to what is stated in

the para which follows.

The next question which then arises is whether a family which thus comes into being and which represents in substance the two families one that

of the wife and the other that of the husband can retain two allotments or one allotment under the Cabinet Order No. 578-C. If the husband is

already having an allotment in his favour, either as a sole surviving member of the family or as one of the members of the family the wife's allotment

is rendered liable to be cancelled and even the vice versa is correct. In such an event it cannot be said, that the husband and wife are entitled to

two separate allotments even when they were the members of one family as such a plea would run repugnant to the provisions of Para 12

reproduced above.

In such an event the course open to the 'authorities would be to determine not only 'the- question whether the wife has an allotment or not in her

favour but also whether the husband has in his favour an allotment under the provisions of the Cabinet Order No. 578-C of 1954. If it is found that

the husband has no such allotment in his name the allotment standing in the name of the wife cannot be cancelled as in such an event even when the

two families have united and merged into one, the allotment remains only one and Para 12 of the Cabinet Order cannot apply.

In the present case however, there is no dispute that Avtar Singh the husband of the petitioner, does not hold any separate allotment. All that is

argued by Mr. Amarchand is that Avtar Singh has been Granted rehabilitation ex gratia grant of Rs. 3500/-. According to him the ex gratia grant of

Rs. 3500/- disentitled Avtar Singh to any allotment of land. The Cabinet Order No. 578-C of 1954 however, does not contain any provision

which debars the recipient of such a grant from obtaining an allotment in his favour. The Cabinet Order No: 578-C was an exhaustive order in

regard to allotments of land to the displaced persons. In the absence of a specific provision in the said order debarring the recipient of an ex gratia

grant..Avtar Singh cannot be equated with an allotted and the receipt of pecuniary assistance does not (sic) him from sharing an allotment with his

wife the original allottee.

In these circumstances there is no question of the conceded authorities being directed to hold an enquire as to whether Avtar Singh has any

allotment standing in his favour or not.

For the foregoing reasons we are satisfied that the order of the Deputy Custodian General cancelling the allotment of the petitioner was not

legally correct and suffers from a patent error of law. This petition is therefore allowed, the order of the Deputy Custodian General dated 13-10-

1972 impugned in this petition is set aside. The possession if already resumed from her shall be restored to the petitioner forthwith. The parties,

however, small bear their costs in this petition.

S.M.F. Ali, C.J.

I agree.

Jaswant Singh, J.

I have had the advantage of going through the elaborate judgment prepared by my learned brother Thakur J. While I agree with the ultimate

conclusion arrived at by my learned brother, I would like to add a few words of my own, to highlight an aspect of the matter which seems to have

inadvertently escaped the notice of my learned brothers.

24-26. A perusal of Cabinet Order No. 578-C of 1954 dated 7-5-1954, shows that it has a scheme of its own and the expression ""family"" has for

the purpose of the order a concept different from the one under the general law, which cannot be imported while construing the provisions of the

order in relation to camp displaced persons in view of the Explanation to Para 2 and the first part of Para 15-A of the order which run thus:

Explanation to para 2 ""Family"" for purposes of this order will in case of non-camp displaced persons mean and include husband, wife, unmarried

children, infirm parents and other relatives actually living together and in case of camp displaced persons such members as were entered in their

ration cards except where a family has been split up to secure more than one ration card.

15-A. Expect as otherwise provided under these rules allottees shall not generally be disturbed from their allotted lands and in case where an

evacuee returns and claims restoration of land which may have been allotted; the provisions of Sec. 14A of the Evacuees (Administration of

Property) Act, Samvat, 2006, may be invoked.

A harmonious reading of Paras 12 (1) and 15-B in the light of the definition of the expression ""family"" as reproduced above and the public policy

permeating the order, cannot but lead to the conclusion that the allotment of land made in favour of a ""camp displaced family cannot be cancelled

even if the girl who is the sole surviving member of the family and is entered in the ration card as head of the family is married out of her parental

house. The only effect of such a marriage in view of the provisions of the order in my opinion would be that if the husband of such a girl already

holds an allotment of land, the two allotments- one in favour of the girl and the other in favour of her husband, would be clubbed together and it

shall have to (sic) if they exceed the unit prescribed by Para 2.

In case the two allotment put together exceed the prescribed unit. the girl would be ejected only from such portion of the evacuee or government

land or both as together with the land held in allotment by her husband is in excess of the said unit. In ease the two allotments put together would

not exceed the said unit there would be no question of cancellation of the allotment held by the girl. The view expressed by the Division Bench of

this court in Shant Kanr v. Divisional Commissioner, alluded to by my learned brother, shall have to stand modified to the extent indicated by me.