UTTAM CHAND v. STATE OF MAHARASHTRA & Anr.

The short point taken by Mr. V. M. Tarkunde, learned counsel for the appellant is that under the provisions of the Act, land which was received by his wife from the adopted son Was her personal pro perty and could not !J.~ included in the ceiling of the appellant and that the Commissioner iherefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set said the order of the Depnty Collector. The High Court in a short judgment refused to interfere mainly on lhc ground that the transfer of the land in favour of Nemichand, the adopted son, was held to be collusive as also the decree. There was neither any pleading nor any case made out either before the Deputy Collector or even before ihe Commissioner to indicate that the transfer of the lands in favour of the adopted son and ihe transfer of N em.ichand in favour of his mother In fact both these transactions were collusive or tainted by fraud. took place as far back as 1956, ihat is to say, five years before the Act came into force. Even ihe Act clearly exempts lands which may • • y --- UTTAM CHAND v. MAHARASHTRA (Fazai Ali, J.) 1051 have been acquired or transferred prior to 4-8-1959. Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those trallsfers wouW be ·hit by the Act which are made at any time on or after 4-8-1959. As both the transfers mentioned above were prior to 4-8-1959, it is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justilied in pr\:Suming that the transfer made by the appetlant in favour of his ad0pted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to sup port this conjecture of the High Court. Mr. Bhandare, learned Counsel appearing for the respondent sub mitted that the. word 'person' defined in Sec. 2(22) of the Act in cludes family and that 'family' as defined in Sec. 2(11) of the Act includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage are joint in estate or possession or residence. Reliance was also placed on Section 6 of the Act which runs thus : "Where a family unit consists of members which exceed five in number, the family unit shall be entitled to bold land exceeding the ceiling area !o the extent of one-fifth of t.he ceiling area for each member in excess of five, 50 however that the total holding shall not exceed twice the ceiling area, and in such cas~, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area." These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the seperate or indi vidual property of a member of the family which is self-acquired pro perty and cannot be clubbed together with land of owner or his family. To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged lo such a person or persons having different shares in that property. That is why all transfers made prior to 1959 were expressly exempted from the operation of the Act. The arguments advanced by the r~spondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. most important f~ct to be determined was whether or not ·any transfer that has been made by the person concerned was prior to or after If the transfer was prior to 4-8-1959 then the provisions 4-8-1959. In the of the Act would not apply at all. In these circumstances, instant case, both therefore, c E. F R 1052 SUPREME COURT REPORTS [1980] 3 S.C.R. .A B transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, 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. We, therefore, allow this Appeal, set aside the judgment of High Court and also that of the Commissioner and restore the judg ment of the Deputy Collector. In the special circumstances, there shall be no on:Jers as to costs. The appeal is accordingly allowed. N.K.A. Appeal allowed. • • •