R.C. Chavan, J.
1. This appeal raises the following questions:
(i) Could a partition between father and daughters effected before 26-9-1970 be questioned in proceedings to determine surplus lands of the father
(ii) Could the Appellate Authority entertain a cross-objection without the objector paying requisite court fees
(iii) Could the Appellate Authority allow a cross-objection affecting the rights of daughters, who were not parties in the proceedings before the Authority
(iv) Could a gift, which had not been actually acted upon, be considered for including the properties gifted to the wife in the holding of the family of her husband
2. These questions arise under the following set of facts:
(i) The appellant held the lands substantially in excess of the ceiling on holdings of agricultural lands enforced by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as amended up to the year 1976 (For short, hereinafter referred to as 'the Act').
(ii) In 1955, there was a registered partition between appellant Vitthaldas and his father Jagannath. Around the same time, Jagannath gifted three fields including field survey No. 106 admeasuring 21 acres and 24 gunthas of Village Sawangi Gaoli to Kamaladevi, wife of Vitthaldas, who is appellant No. 2 before us.
(iii) Respondent Nos. 6 and 7, the appellants' daughters, were born respectively on 3-11-1955 and 28-8-1957.
(iv) On 31-1-1970, appellant Vitthaldas effected registered partition of his properties between himself, his son Anilkumar and daughters respondent Nos. 6 and 7, whereby field survey No. 12 of Village Babhulgaon, admeasuring 17 acres and 20 gunthas, was given to respondent No. 6, and 14 acres and 6 gunthas from field survey No. 14 of Village Babhulgaon, admeasuring 37 acres and 6 gunthas, was given to respondent No. 7.
(v) Section 10 of the Act prescribes that all transfers made after 26-9-1970 but before the commencement date, i.e. 2-10-1975, shall be deemed to have been made in order to avoid or defeat the object of the Act, unless the contrary is proved.
(vi) In 1976, the Surplus Land Determination Tribunal held that the appellants had 60 acres and 27 gunthas of surplus land. Appeal bearing No. 2176 of 1976 before the Maharashtra Revenue Tribunal was dismissed on 16-2-1977.
(vii) On 2-3-1982, the appellants' Writ Petition 348 of 1977 challenging the decision of the Maharashtra Revenue Tribunal was allowed and the matter was remanded to the Surplus Land Determination Tribunal to conduct a fair and proper enquiry by giving adequate opportunity to the land holders, since the principles of natural justice were held to have been breached.
(viii) On 7-5-1984, upon remand, the Surplus Land Determination Tribunal excluded the land bearing survey No. 106 of Village Sawangi Gaoli as not held by Kamaladevi, the donee, and eventually found after excluding potherb land, that the appellants' family had surplus land of 59 acres and 35 gunthas. The appellants and their family members appealed to the Maharashtra Administrative Tribunal. The appellants' daughters Shakuntala and Durga, respondent Nos. 6 and 7 herein, were not parties to the appeal, as their lands had till then not been touched.
(ix) On 29-10-1984, the State filed a cross-objection challenging exclusion by the Surplus Land Determination Tribunal of land bearing survey No. 106 of Village Sawangi Gaoli gifted to appellant No. 2 Kamaladevi and lands of Shakuntala and Durga, respondent Nos. 6 and 7, i.e. survey Nos. 12 and 14 of Village Babhulgaon. The appellants replied to the cross-objection and challenged its tenablity.
(x) On 3-12-1984, the Maharashtra Revenue Tribunal dismissed the appeal and allowed the cross-objection by the State, including the land of appellant No. 2 Kamaladevi as well as that of respondent Nos. 6 and 7 in the holding of the appellants. It, therefore, concluded that the appellants' family had 111 acres and 39 gunthas of surplus land.
(xi) This finding of the Maharashtra Revenue Tribunal was challenged by Writ Petition No. 111 of 1985, which was decided by a learned Single Judge by judgment dated 16-9-1987. One of the questions raised in the writ petition pertained to the right of the parties to be represented by Advocates before the Ceiling Authorities. This question was dealt with by the learned Single Judge in para 12 onwards in his judgment. However, since the question is no longer res integra, that part of the judgment need not be considered. The learned Single Judge held against the appellants on the question of inclusion of three fields one gifted to Kamaladevi, appellant No. 2, and the other two allegedly given in partition to respondent Nos. 6 and 7. The learned Single Judge, however, allowed necessary adjustments to be made in respect of uncultivable potherb land and modified the quantum of surplus land as 103 acres and 36 gunthas as against 111 acres and 39 funthas, which had been found by the Maharashtra Revenue Tribunal. Aggrieved by this judgment, the appellants are before us.
3. We have heard Shri B.N. Mohta, learned Advocate for the appellants, and Shri S.J. Jichkar, learned AGP for respondent Nos. 1 to 3. Respondent Nos. 4 to 7, though duly served, have not participated. The appellants are in fact espousing the cause of respondent Nos. 6 and 7 as well and hence their not taking active interest to contest the appeal is understandable.
4. The learned Advocate for the appellants submitted that the scheme of Sections 8 to 11-A of the Act does not enable the Authorities under the Ceiling Act to examine or question a transaction prior to 26-9-1970. He submitted that the partition whereby the lands bearing survey Nos. 12 and 14 of Village Babhulgaon were given to respondent Nos. 6 and 7, was effected by registered instrument dated 31-1-1970, i.e. well before 26-9-1970. He, therefore, wondered as to how a cross-objection could be raised in respect of these lands and how the Revenue Tribunal could have entertained such an objection.
5. The cross-objection itself mentions that the partition was 'unnatural' by resorting to having minor daughters represented by a different person as guardian, though both the natural parents and natural guardians were very much alive and not suffering from any disability. It was further stated in the cross-objection that a female child would get a right in the property only upon opening a succession, i.e. only upon death of parents, and, therefore, there could not have been any partition granting any share to minor females. The Tribunal held that allotment of property to daughters in partition dated 31-1-1970 amounted to doing violence to the principles of Hindu Law. Relying on a judgment of this Court in Annasaheb Sahebrao Megul v. State of Maharashtra in Writ Petition No. 2997 of 1976, decided on 27-7-1981, the Tribunal held that it was entitled to ignore such a partition even though it was effected before 26-9-1970. In that case, the partition had been effected on 9-1-1970 by a registered document. The Tribunal further found that apart from whether there was a partition or not, respondent Nos. 6 and 7 continued to be the members of the appellants' family and in fact appellant No. 1 Vitthaldas was cultivating the land on the relevant date. Therefore, the Tribunal held that these lands would have to be included in the family holding of appellant No. 1 Vitthaldas.
6. In the judgment in the writ petition, the learned Single Judge considered the question of respondent Nos. 6 and 7 acquiring field survey Nos. 12 and 14 of Village Babhulgaon by a partition-deed dated 31-1-1970. The learned Single Judge held that the Revenue Tribunal was right in relying on the decisions of this Court in Bhagwandas Heda v. State of Maharashtra, reported at 1983 M.L.J. 825, and one in Writ Petition o. 2997 of 1976, decided on 27-7-1981, regarding daughters getting a share of ancestral property in a partition. The learned Single Judge further held that the crop statements of these fields showed that in spite of allotment of the fields to respondent Nos. 6 and 7 in the partition-deed dated 31-1-1970, they were continued in cultivating possession of appellant No. 1 in the years 1970-71 and 1971-72. It has been observed that in the crop statements for the years 1972-73 to 1974-75, appellant No. 1 was jointly cultivating the land with daughters Shakuntala and Durga. The learned Single Judge, therefore, upheld the finding of the Tribunal that in spite of partition-deed dated 31-1-1970, appellant No. 1 held these lands as a part of his family holding.
7. The learned Advocate for the appellants questioned the correctness of the conclusions drawn by the learned Single Judge. Relying on a judgment of the Supreme Court in Uttar Chand v. State of Maharashtra, reported at : [1980]2SCR1048 , the learned Advocate for the appellants submitted that since the transfer was prior to the prescribed date, the provisions of the Ceiling Act did not at all apply. In that case, the Supreme Court was considering the provisions of the same Act prior to the amendments in 1975-76. The relevant date in the unamended provisions was 4-8-1959. It was claimed in that case that in the year 1956, there was a partition between the appellant and his nephews and there were also some sales, including transfer under a decree of a Civil Court prior to the year 1956. All the Courts, including the High Court, held against the holder of the lands and, therefore, the holder had approached the Supreme Court. It was urged before the Supreme Court that the transactions, which took place as far back as in 1956, could not have been questioned by the Revenue Authorities. The Apex Court upheld this contention and observed in para 5 of the judgment as under:.In these circumstances the most important fact to be determined was whether or not any transfer that had been made by the person concerned was prior to or after 4-8-59. If the transfer was prior to 4-8-59 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to them and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemi Chand to his mother should be included in the total area of the land owned by the appellant.
The learned Advocate for the appellants submitted that this judgment was not noticed while deciding Bhagwandas Heda v. State of Maharashtra, reported at 1983 M.L.J. 825, as also the unreported judgment in Writ Petition No. 2997 of 1976, and, therefore, reliance on those judgments by the learned Single Judge or the Revenue Tribunal would not help the State.
8. The learned AGP for respondent Nos. 1 to 3 rightly countered by pointing out that it would obviously be impermissible for the Authorities under the Ceiling Act to reopen proceedings prior to 26-9-1970 if there was a transfer. According to the learned AGP, the document dated 31-1-1970, styled as Partition-Deed, did not effect any transfer in favour of respondent Nos. 6 and 7 and, therefore, there was no question of recognizing any transfer effected prior to 26-9-1970. He submitted that in Uttar Chand v. State of Maharashtra, reported at : [1980]2SCR1048 , on which the learned Advocate for the appellants has placed reliance, the transactions involved were partition and allotment of some land under a decree of a Civil Court. The partition there was amongst the persons, who had an existing interest in the property. The learned AGP submitted that in the instant case, respondent Nos. 6 and 7 being minor daughters, had no subsisting interest in the properties held by appellant No. 1. If at all anybody was entitled to a share in a partition between appellant No. 1 and his son respondent No. 4 Anilkumar, it would have been appellant No. 2 Kamaladevi, since a mother is entitled to a share in a partition between father and son. But appellant No. 2 Kamaladevi is not shown to have been given any share in this partition. Instead, the daughters, who did not have any subsisting interest and who were minors, were given lands bearing survey Nos. 12 and 14 of Village Babhulgaon.
Therefore, since there was no transfer of any property in favour of respondent Nos. 6 and 7 prior to 26-9-1970, or even till the date of commencement, i.e. 2-10-1975, according to the learned AGP, all that the Tribunal did was to count the lands in the family holding of appellant No. 1. He submitted that attainment of majority by respondent Nos. 6 and 7 by 2-10-1975 would be irrelevant unless it is shown that by that date they had separated and ceased to form a part of the appellants' family. He pointed out that rather than that indicating any separation of respondent Nos. 6 and 7 from the appellants' family, the lands in question were in joint cultivation of appellant No. 1 and the concerned respondents right up to the year 1974-75 and, therefore, submitted that the conclusions drawn by the learned Single Judge are unassailable.
9. We have carefully considered the rival submissions. First, in 1970, there could be no question of daughters being entitled to a share of family properties in a partition during the life-time of their parents. Further, showing father of appellant No. 1, as their guardian in such a partition, would not result in severing them from the appellants' family. Had appellant No. 1 so wished, he could have gifted the properties to respondent Nos. 6 and 7, but that too would not have mattered so long as respondent Nos. 6 and 7 continued to be a part of his family. The judgment of the Supreme Court in Uttar Chand v. State of Maharashtra, reported at : [1980]2SCR1048 , on which the learned Advocate for the appellants places reliance, does not help the appellants, since in that case, the Apex Court was considering actual transfers effected before the relevant date, whereas in the case at hand, there are no such actual transfers, but only attempted evasion, if we may so describe the partition dated 31-1-1970. Further, as rightly observed by the learned Single Judge, the 7/12 extracts of the fields in question show that they were in joint cultivation of appellant No. 1 and his daughters right up to the year 1975.
10. It is not necessary to dissect the expression used by the Tribunal while discussing the effect of these transfers. As held in the judgment of this Court in Dadarao v. State of Maharashtra, reported at 1969 M.L.J. 813, on which the learned Advocate for the appellants has placed reliance, such partition may be valid or invalid as between the parties. The question is whether it is to be recognized for the purpose of determining the ceiling area or not. Herein, since there was no transfer by the instrument dated 31-11970 in favour of respondent Nos. 6 and 7, there was no question of recognizing such transfer for the purpose of determining surplus land of appellant No. 1.
11. The learned Advocate for the appellants submitted that the partition had not been questioned by the concerned members of the family and, therefore, there was no reason whatsoever for ignoring such partition. He submitted that the question whether respondent Nos. 6 and 7 were entitled to a share in such partition, could have been agitated only by respondent No. 4 Anilkumar and appellant No. 2 Kamladevi and it was not open for the State to question the rights created in favour of respondent Nos. 6 and 7 by a document dated 31-1-1970.
12. This fallacious contention was rightly repelled by the learned AGP by pointing out that the State was as much an interested party as the family members, because operation of the provisions of the Act entitled the State to secure the surplus land for the purpose of their distribution. If the argument of the learned Advocate for the appellants were to be accepted, fictitious transfer, in which the transferor or the transferee had no dispute, would have taken out the entire surplus land out of the provisions of the Act. Therefore, this contention of the learned Advocate for the appellants has to be rejected.
13. The learned Advocate for the appellants next submitted that the Tribunal had in fact entertained a cross-objection without receiving court-fees prescribed under Section 36 of the Act. The appellants had raised this question before the Tribunal. In para 9 of its judgment, the Tribunal held that the recovery of court-fees on the cross-objection was a trivial matter. It further observed that since the cross-objection was in the nature of a reply, it did not require stamp duty, and lastly since the State was itself the objector, it could not be payee or payer at the same time.
14. After hearing the learned Advocate for the appellants as well as the learned AGP for respondent Nos. 1 to 3 on this question, we find that Section 33 of the Act prescribes that the Tribunal should follow the same procedure which a Court follows in deciding an appeal arising from a decree or order of original Court under the Code of Civil Procedure. Therefore, it would be imperative for a respondent in an appeal to follow the procedure prescribed in Order 41, Rule 22 of the Code of Civil Procedure. There can be no doubt that a respondent could have also stated in a reply that the finding against him in the Court below in respect of any issue ought to have been in his favour. Herein, there was no question of State seeking any specific order from the Surplus Land Determination Tribunal and, therefore, being required to file an appeal seeking a particular relief of inclusion of the lands bearing survey Nos. 12 and 14 of Village Babhulgaon or survey No. 106 of Village Sawangi Gaoli in the family holding of appellant No. 1. However, had the State been required to prefer an appeal for inclusion of these lands and in that case, it would have been required to comply with the provisions of court- fee in Section 36 of the Act. The observations of the Tribunal about payee or payer being the same and, therefore, the State not being required to pay the court-fees, are, therefore, improper.
15. However, non-payment of court-fees is not a matter of which a litigant could take advantage, particularly in the situation like the present one where the appellant seeks to hold lands in excess of ceiling by having the claim of the State ousted on the technical requirement of payment of court-fees. The rules as to the pleadings, including rejection of plaint, may apply mutatis mutandis to an appeal. Order 7, Rule 11 of the Code enables a Court to grant time to the plaintiff to correct the valuation and to pay the deficit court-fees. In the present case, since the Court itself was of the opinion that non-payment of court-fees was not material, such occasion did not arise. But since the Court did have such a power, non-payment of court- fees cannot result in rejection of the cross-objection. The State may approach the Tribunal to have the deficiency made good within such time as the Tribunal may grant.
16. Next, we come to the question as to whether the Tribunal could have entertained cross-objection, which affected the rights of respondent Nos. 6 and 7 without their being before the Tribunal.
17. The learned Advocate for the appellants placed reliance on the judgment of Madras High Court in Venkatapathi v. Veerayya, reported at AIR (30) 1943 Mad 609. The Court was considering the tenability of a cross-objection against the party, which was not impleaded in the appeal, and held that an application for impleading such person should be made within the time allowed for filing an appeal and only upon succeeding in such application, must file memorandum of cross-objection within the prescribed time. Thus, the Court rules that it would be first necessary to implead such person and then to file a cross-objection. In that case, the cross-objection was sought to be filed by the plaintiff-respondent against original defendant No. 2 before the Court, who had not appealed against the decree. In the context of these facts, there can be no doubt about the proposition that such a defendant would have to be impleaded.
18. In Kundomal v. Topamal, reported at : AIR1953All710 , the Allahabad High Court took a similar view in a matter arising out of a money decree against a firm. The judgment-debtor had filed an appeal impleading the decree-holder as the respondent. The Court held that the decree-holder could not file a cross-objection against the brothers of the judgment-debtor without impleading them as parties. Similar view has been taken by the High Court of Calcutta in Rajendra v. Moheshata Debi, reported at AIR 1926 Cal 533.
19. The learned Advocate for the appellants also placed reliance on an unreported judgment dated 23-3-1988 of this Court in Writ Pet ition No. 610 of 1986 (Balkrishna Maharaj Mandir v. Maharashtra Revenue Tribunal and Ors.). In that case, one Tarasingh was shown as a tenant of the part of the property, which was the subject-matter of determination before the Surplus Land Determination Tribunal under the Act. Tarasingh was a party before the Surplus Land Determination Tribunal. In landlord's appeal, the State filed a cross-objection before the Maharashtra Revenue Tribunal urging that the land held by Tarasingh as tenant should be included in the holding of the petitioner. A learned Single Judge of this Court held:
The Maharashtra Revenue Tribunal did not notice the fact that the cross objection filed by the State could not have been allowed in the absence of Tarachand, because it affected the rights of Tarachand. Tarachand was a party before the SLDT and if any order which would work to his disadvantage and to prejudice to him were to be passed, it was necessary that he should have been heard. The cross-objection filed by the State was, therefore, incompetent in the absence of Tarasingh, who was a necessary party. The learned Advocate for the appellants, therefore, contended that the Tribunal could not at all have entertained the cross-objections without impleading respondent Nos. 6 and 7, since their rights were to be affected.
20. The learned AGP submitted that there could be no parallel between the facts in the decisions relied on by the learned Advocate for the appellants and those in the case at hand. He submitted that in all the cases relied on by the learned Advocate for the appellants, the persons concerned had an existing or subsisting right, which was to be affected by entertaining cross-objections. He submitted that in the instant case, since respondent Nos. 6 and 7 did not at all have any existing or subsisting right in the property, there was no question of their being arrayed as parties in the appeal before the Revenue Tribunal.
21. We have carefully considered these submissions. Apart from the question whether respondent Nos. 6 and 7 had any right in the concerned fields, it seems to us that there was absolutely no possibility of their rights, if any, being prejudicially affected by inclusion of concerned lands in the holding of appellant No. 1. It would be appellant No. 1, who would stand to lose corresponding acreage after adjusting the claims of respondent Nos. 6 and 7, if he was so keen to ensure that they got what he desired to give them. The order passed by the Tribunal was not one directed against respondent Nos. 6 and 7, but was one which affected the rights of the appellant. There is no similarity with the facts of the unreported judgment in the case of Balkrishna Maharaj Mandir, referred to above, because in that case, Tarasingh was a tenant, who was also a party before the Surplus Land Determination Tribunal. Therefore, we do not find any force in the submissions made on behalf of the appellants as the proxy of respondent Nos. 6 and 7.
22. Lastly, we would come to the question of inclusion of land bearing survey No. 106 of Village Sawangi Gaoli in the holding of appellant No. 1. It is strange that while the appellant wants partition-deed dated 31-1-1970 to be relied upon for excluding lands bearing survey Nos. 12 and 14 of Village Babhulgaon, he is not ready to have the land gifted to his wife in the year 1956 by a similar registered instrument by taking advantage of non-mutation of the said land in the name of appellant No. 2 Kamaladevi. The gift-deed was executed by appellant No. 1's father. The Tribunal as well as the learned Single Judge have duly considered the question of this land given by gift-deed dated 20-1-1955. The learned Single Judge has rightly held that if the land bearing survey No. 106 of Village Sawangi Gaoli was to be excluded from the holding of appellant No. 1, because it continued to remain with his father Jagannath in spite of gift in favour of his wife Kamladevi, it would have been necessary for the appellant to show that the property was shown in the holding of Jagannath. The learned Single Judge has observed that Jagannath was not examined to assert his ownership over the field survey No. 106 of Village Sawangi Gaoli. We find that this conclusion is unassailable. What the appellants are attempting to do is to turn field survey No. 106 of Village Sawangi Gaoli in no man's land by excluding it from the holding of appellant No. 1, saying that Kamladevi had not at all actually received it in gift, while at the same time not showing that Jagannath had included this land in his holding, which is thoroughly impermissible.
23. To sum up, we hold that validity of the partition dated 31-1-1970 has not been questioned by the Tribunal. All that the Tribunal and the learned Single Judge did was to take into account the fact that lands continued to be with appellants as there was no severance of respondent Nos. 6 and 7 from appellants' family. As for court-fees on cross-objection, though we disapprove observations of the Tribunal, the defect is curable and cannot help appellants in pocketing a chunk of land, which should become available to the State for distribution. Respondent Nos. 6 and 7 were not necessary parties to the cross-objection, first, because of absence of subsisting interest in the properties, and secondly, because appellants could be trusted to take care of their daughters' interests from their own property, rather than resorting to what may be proverbially described as 'Robbing Peter to pay Paul'. Lastly, claim for exclusion of field survey No. 106 of Sawangi, contending that the gift dated 20-1-1955 was not actually received, while at the same time taking a diametrically opposite stand about document dated 30-1-1970, amounts to blowing hot and cold in the same breath.
24. We, therefore, dismiss the appeal.