Judgment:
B. Rarora, J.
1. This appeal is directed against the judgment dated 8.1.86 passed by the learned Single Judge, by which the learned Single Judge dismissed the writ petition filed by the petitioner-appellants and maintained the order passed by the Board of Revenue.
2. Appellants Amb Singh and Jai Singh Sons of Shri Moti Singh, were recorded as co-tenants in the Jamabandi of Sarnvat Years 2001 to 2005 with respect to 466 Bighas 11 Biswas of land situated in village Sikwasra tehsil Bhinmal district Jalore. This land they inherited from their father. By way of partition dated 21.1.68 recorded in the Bahi maintained by them, 261 Bighas (equivalent to 40.95 standard acres) of the land came to the share of Jai Singh while 205 Bighas 11 Biswas of the land came to the share of Amb Singh. This partition was got registered in the office of the Sub-Registrar on 28.5.70. In pursuance to this partition, mutation was, also, sanctioned on 21.8.71 and necessary entries were made in the revenue records.
3. Both the brothers filed separate declarations under Rule 9 of the Rajasthan Tenancy (Fixation of Ceiling of Land) Government Rules, 1963 (hereinafter referred as 'the Rules') before the Sub- Divisional Officer, Bhinmal for the determination of the ceiling area applicable to them. The Sub-Divisional Officer, Bhinmal, by his order dated 31.5.75 decided the petitioners' cases and determined the ceiling area applicable to them. The Sub-Divisional Officer recognised and accepted the partition dated 21.1.68 but held that the petitioner-appellants, being the co-tenants/co-parceners, are entitled to equal share in the land and, therefore, each of the petitioner-appellant is entitled to hold 37.12 standard acres of the land. Considering the number of the family members of appellant. Jai Singh, he found that he is not having any excess (Surplus) land; but as the number of the family members of appellant Amb Singh were less than five so he found that he has surplus land of 7.12 standard acres in his possession which is resumable. Consequently, the Sub-Divisional Officer ordered for the resumption of 51 Bighas 11 Biswas of the surplus land specified in the order which shall vest in the State.
4. Both the appellants preferred appeals before the Revenue Appellate Authority, Jodhpur. The Revenue Appellate Authority, by its judgment dated 20.10.75 recognised the partition dated 21.1.68 and allowed the appeal filed by appellant Jai Singh in whole while the appeal filed by appellant Amb Singh was partly allowed and the Revenue Appellate Authority held that Amb Singh was having only 23 Bighas one Biswa of surplus land which is to be resumed.
5. The State preferred a revision petition before the Board of Revenue, Rajasthan, Ajmer. The Board of Revenue, by its judgment dated 27.1.79 allowed the revision petition filed by the State, set-aside the order dated 20.10.75 passed by the Revenue Appellate Authority, Jodhpur and restored the order dated 31.5.75 passed by the Sub-Divisional Officer, Bhinmal Aggrieved with the judgment dated 27.10.79 passed by the Board of Revenue, the appellants preferred a writ petition before this Court which was dismissed by the learned Single Judge by His judgment dated January 8, 1986. It is against this judgment that the appellant- petitioners have preferred this appeal.
6. It is contended by the learned counsel for the appellants that (1) the partition under the Hindu Law is not a 'transfer' arid it has to be recognised and given effect-to while determining the ceiling area even if the partition was effected after the appointed date/notified date, i.e., 1.4.1966; (ii) when the transfers effected after the appointed date/notified date, i.e., 1.4.66, can be recognised for determining the ceiling area, if they satisfy the requirement of Section 30-DD of the Rajasthan Tenancy Act hereinafter referred as 'the Act' the partitions which have been saved by the operation of the Old Ceiling Law cannot be ignored merely because it has been effected after the appointed date; (iii) the restriction under Section 30-DD relates only to the recognition of the 'transfers' and not to the 'partition' of the ancestral property between the co-parceners under the Hindu Law; and (iv) the proviso to Sub-section (5) of Section 17 of the Act applies only where the partition has not taken place and not in the present case where the partition has actually taken place.
7. Learned counsel for the respondents, on the other hand, has supported the judgment passed by the learned Single Judge and has submitted that (i) the partition effected after the appointed date cannot be recognised while determining the ceiling area and the ceiling area is to be determined as to the land held on the appointed date, i.e., 1.4.66; (ii) the partition of the holding- in unequal shares between the co-tenants has been made in order to defeat the provisions of the ceiling law; and (iii) the learned Single Judge was right in applying the proviso to Subsection (5) of Section 17 of the Act as on the appointed date, as no partition had taken place on 1.4.66 and, therefore, the co- tenants are entitled only for equal share in the property.
8. We have considered the submissions made by the learned counsel for the parties.
9. The first question which requires consideration in the present case is; whether the partition of the co-parcenary property effected between the appellants on 21.1.68, is a 'transfer' and can be recognised, considered and given effect-to for determining the ceiling area applicable to the appellants ?
10. 'Partition' is a division of the property between coparceners/co-tenants resulting in individual ownership/tenancy of interest of each co-parceners/co-tenants; while 'transfer' is an act of a party by which the title of the property is conveyed from one person to another. 'Partition' under the Hindu Law, puts an end to the unity of the title, ownership and possession of the property between the co-parceners. In the partition there is a severance of joint status and of unity of possession between the co owners/co-tenants. Partition neither creates any new title in a co-owner/co-tenant in the property nor is there any fresh acquisition of the property. It only enables the parties to know which particular property or portion thereof is their individual exclusive-share in the property. By partition the subsisting joint title of the co-owner/co-tenant in the joint property transforms into their separate title in respect of the property which came to their share. In a transfer, the transferee acquires the right and title in the property which did not vest in him earlier. Thus, 'partition' of the joint property cannot be treated as a 'transfer of the property' between individual co-parceners or co-tenants. Partition of co-parcenary property, therefore, cannot be regarded as a 'transfer of the property' because the co-parceners have an antecedent right in the entire co-parcenary property.
11. The question regarding partition of the Hindu Joint Family's property and the nature of the transaction; whether it is transfer or not, came-up for consideration before the Supreme Court in: V.N. Sarin v. Ajit Kumar Paplai and Anr. : [1966]1SCR349 and the Hon'ble Supreme Court held-
Having regard to the basic character of joint Hindu family property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. As this is the true nature of a partition, the contention that partition of an undivided Hindu family property necessarily means transfer of the property to the individual coparceners cannot be accepted.
12. The next question which arises for consideration is whether the partition effected after the notified date can be taken into consideration for determining the ceiling area of the appellants? Sub-section (6-A) of Section 5 of the Act defines 'ceiling area', which means the maximum area of the land that may be fixed as the ceiling area under Section 30-C in relation to the land held anywhere through-out the State by a person in any capacity whatsoever. Section 30-C provides that the ceiling area for a family consisting of five or less than five members, shall be 30 standard acres of the land. Section 30-D, which has been couched in a negative language states that for the purpose of determining the ceiling area in relation to a person under Section 30-C, any voluntary transfer effected by him on or after 25.2.58 otherwise than (i) by way of partition; or (ii) in favour of a person who was a landless person before said date and continues to be so till the date of transfer of whole or part of the holding, shall be deemed to be a 'transfer' calculated to defeat the provisions of Chapter III-B of the Act and shall not be recognised and taken into consideration. Section 30-DD recognises certain transfers upto 31.12.69 for the purpose of determining the ceiling area in relation to a person under Section 30-C provided they have been made in favour of an agriculturist domicile in Rajasthan or in favour of his son or brother intending to take the possession of the agricultural land and capable of cultivating the land personally and who had attained the age of majority on or before this date. Sub-clause (ii) of Section 30-DD recognises the transfer made by a person before 1.7.70 of the land comprised in groves or farms of the nature referred to in Clauses (a), (b), (d) and (e) of Sub-section (1) of Section 30-J acquired before the first day of May, 1959 in favour of his son or brother fulfilling the conditions mentioned in Clause (1) of Section 30-DD. Section 30-E of the Act provides that no person can continue to hold or retain in his possession in any capacity and for any tenure whatsoever, the land in excess of the ceiling area applicable to him. Proviso to Sub-clause 7 of Section 5 of the Act provides that for the purpose of Chapter III-B, 'holding' shall mean all parcels of land held anywhere through-out the State by a person under one or more than one lease; engagement giant or tenure and whether cultivated personally or let or sub-let by him, shall be deemed to be 'holding' and, where any such land is held by more than one persons as co-parceners or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place. Sub-rule (4) of Rule 17 provides that the share of the member of the family or of an individual person in the land held by a Hindu Undivided Family shall be deemed to be the extent of the land, which is, in excess of such share, held on the appointed date, would have been allotted to such a member had such land been partitioned on such date.
13. The law relating to the ceiling of the agricultural land holding is an expression of the desire of the Legislature that on and after the appointed date, no person or family in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act. The Scheme of the Act made it explicitly clear that the ceiling area of each person/family is to he determined with respect to the state of affairs existing and the land held by the person or the family on the appointed day, i.e., 1.4.66 and not with reference to the date of the decision of the case. The construction borne-out from the provisions of the Act visualizes the ceiling area of every person with reference to the conditions prevailing on and the land held by him as on 1.4.66.
14. A similar controversy, i.e., which will be the relevant date for determination of the ceiling area, came-up for consideration before the Hon'ble Supreme Court in: Raghwiath Laxman Uani and Ors. v. Slate of Maharashtra and Ors. : [1972]1SCR48 and the Supreme Court, after considering the law on the pointing para 17 of the judgment, held that 'the Scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day. The policy of the Act appears to be that on and after the appointed day, no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that celling area would be that which is determined as on the appointed day.'
15. The same controversy came-up for consideration before the Division Bench of this Court in: Kesari Lal v. Sub-Divisional Officer, Ramganjmandi and Ors. and the Division Bench of this Court held-
In our view, when the legislature says that no person shall hold land in excess of ceiling area with respect to a notified date, that intention cannot be allowed to become non-existent and of no effect by augments of events which may supervene subsequent to that date. The question of holding an enquiry is also a procedural matter to determine whether the declaration given by a person is correct or not. But the relevant date, with respect to ceiling area, has been determined by the legislature. The notified date cannot and does not fluctuate.
16. The same view was reiterated by the Division Bench of this Court in: Ram Ratan v. State of Rajasthan and Ors. RLR 1982 Page 939, In this case the partition was effected by way of a court-decree of partition passed on November 19,1970. The question for consideration before the Division Bench was whether the partition watch admittedly took place after the appointed date, can be recognised under Section 30-DD The Division Bench of this Court was of the view that 'such partition cannot be recognised for the purpose of determining the ceiling area because the rights are to be determined as existing on the notified date and the decree obtained after the notified date cannot be taken into consideration in determining the surplus area of a person and the ceiling area of a family or a person, as defined under Section 30-B of the Act is required to be entertained with reference to the notified date and not with reference to the date of the decision of the case.'
17. Section 30-D recognises only the transfer (i) by way of partition, or (ii) in favour of a landless person upto 1.4.66. All other transfers made after 25.2.1958. according to this Section, are considered as the transfer calculated to defeat the provisions of Chapter III-B of the Rajasthan Tenancy Act and they cannot, therefore, be recognised or taken into consideration for determining the ceiling area.
18. Section 30-DD of the Act is further exception to Section 30-D and recognises only two types of transfers made in favour of agriculturist domicile in Rajasthan, son or brother intending to take to the profession of agriculture, attained the age of majority and capable of cultivating the land personally. Section 30-DD does not recognise division of the land by way of partition. The division of land between the co-tenants or co- owners by way of partition for the purpose of ceiling law under Section 30-D has been recognised upto the notified date only. The partition made between the co-tenants after 1.4.66 though valid, cannot be considered for the purpose of determining the ceiling area applicable to a person or a family. The object with which the ceiling law was enacted, the scheme of the Act and the construction of the provisions contained in Chapter III-B clearly indicate that a partition made after April 1, 1966 cannot be considered or recognised for the purpose of determination of the ceiling area of a person under Section 30-C read with Section 30-E of the Act. The crucial date for consideration of the partition is the notified date, i.e., April 1,1966 and the partition effected after this notified date is of no avail to the appellants either under Section 30-D or under Section 33-DD.
19. In the present case, the partition of the holding between the co-tenants took place on 21.1.68, i.e., after the notified date and as such it cannot be recognised under Section 30-D or Section 30-DD of the Act. The partition that can be recognised for the purpose of determination of ceiling area in accordance with Section 30-D must be prior to 1.4.66. The division of the holding unequally between the two co-sharers on 21.1.68 appeals to be a device to defeat the provisions of the ceiling law. On the relevant date, i.e., on 1.4.66, the appellants had been shown as co-tenants with respect to 466 Bighas Biswas of the land. They inherited the land from their father and, therefore, being the co-parceners, they were entitled for equal share. As per Section 5(17) of the Act, the appellants, who were holdings the land as the co-tenants, were entitled for half of the share each. They shall, therefore, be deemed to be holding their separate half share in the land as the division by that time had not actually taken place. According to Sub-rule (i) of Rule 17 of the Rules, also, as the land held by the appellants as co-tenants, shown in the Revenue Record, was that of the joint property and they could have allotted the land half and half, the learned Single Judge was, therefore, right in holding that the petitioner-appellants had equal share in the holdings held by them.
20. The next question which requires consideration is whether the restriction under Section 30- DD relates only to the recognition to the transfers and not to the partition and the partition effected between the parties at any time can be considered for the purpose of determining the ceiling area applicable to all the persons or the family Section 3O-.DD does not deal with the partition. 'Partition' for the purpose of determination of the ceiling area is covered only under Section 30-D and the recognition given under the ceiling law for the purpose of determination of ceiling area is only to those partitions which have been effected on or prior to the notified date.ie., 1.4.1966. All other transfers, as per Section 30-D, except by way of partition or in favour of a person who was a landless person before the said date and continues to be so till the date of transfer, are deemed to be the transfers calculating to defeat the provisions of Chapter III-B and cannot be recognised and taken into consideration. Section 30-DD recognises special type of transfers limiting to thirty standard acres, made by a person upto 31st day of December, 1969; and (ii) the transfer to the extent of thirty standard acres made on or before the 1st day of June, 1970 of the land comprised in groves or farms of any nature referred to in Clauses (a), (b), (d) and (e) of Sub-section (1) of Section 30-J, made in favour of agriculturists domiciled in Rajasthan or in favour of his brother or son who have attained the age of majority on this day and are intending to take to the profession of agriculture and capable of cultivating the land personally. This Section has no application so far as the recognition of the partition for the purpose of determination of ceiling area is concerned. Partition is exclusively covered by Section 30-D of the Act.
21. The last question which requires consideration is: whether proviso to Sub-rule (5) of Rule 17 applies to the present case It. is not in dispute that as per the findings recorded by the learned Single Judge as well as by the three Revenue Authorities, the partition of the holdings between the co-tenants (appellants) had not taken place upto the appointed date and it took place on 21.1.69. On the appointed date, the land was entered in the name of both the appellants as the co-tenants. The land was ancestral and the appellants inherited the same from their father. As per the Hindu Law, being co-parceners, the appellants have equal share in the property. There is no doubt that at the time of partition the parties can agree to take unequal share but since no partition was effected upto the notified date and on 2.4.66 the appellants were shown as co-tenants, they were, therefore, deemed to have equal share in the holding for which they were entitled being the co-parceners as per the Hindu Law. The learned Single Judge was, therefore, justified in applying the proviso to Section 5(17) off the Act and holding that both the co- tenants (appellants) are entitled for equal share in the land.
22. In the result, we do not find any merit in this appeal and the same is hereby dismissed. In the facts and circurnstances of the case, we leave the parties to bear their own costs.