VITHALDAS JAGANNATH KHATRI (D) v. THE STATE OF MAHARASHTRA REVENUE

Judgment

): The relevant date of 26.9.1970 and 2.10.1975 giving window of five years for the State to take action and prevent any dubious transaction during this period of time cannot be expanded to an unlimited prior period of time – In the instant case, the Partition Deed was registered prior to the cut- off date of 26.09.1970 – Execution of Partition Deed which has the effect of a gift would not nullify the effect of the deed as the provision made out for the daughters out of ancestral property would be in compliance of the pious obligation – Hindu Law provides for provision for marriage of unmarried daughter out of 913 A B C D E F G H 914 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H ancestral property – Therefore, view of SDO regarding exclusion of land of two elder daughters for determining surplus land was correct and is restored – (Per K.M. Joseph, J.): Collector, when in the course of inquiry under s.18 of the Act, has before it, materials to show that an ostensible transfer or a partition is nothing but a sham and a person or a member of the family continues to hold the land as on the commencement day, it would be well within his powers to act as per the mandate of the Act and include the land for the purpose of calculating the ceiling limit – Collector is endowed with the powers of the civil court in the matter of both summoning and enforcing attendance of any person – He has power also to compel production of any document – In a sham transaction, be it sale or partition, though it has all the trappings of a transfer or a partition and it may be registered as such, in effect, the transferor continues to be the owner – In the instant case, the father continued to be the owner of the land as title had not passed to the two daughters by a legally valid instrument – Even crop statement of relevant time also showed the cultivation by father alone or along with daughters – The Partition was unnatural for the reason that under the extant Hindu Law, daughters were not entitled to a share and women were not entitled to partition – Thus the Partition was indeed not only unnatural but it was not intended to have effect – The property continued with the father in which case it would be property held by him even on the commencement date rendering it liable to be included in the account of the family unit – Held: In view of difference of opinion, the matter placed before the Chief Justice of India for referring the matter to larger bench – Reference to larger bench. Referring the matter to larger Bench in view of difference of opinion, the Court HELD: PER SANJAY KISHAN KAUL, J.

#1. Deemed Fiction:

1.1 The legislation in question is a beneficial piece of legislation and, indeed, must be given the widest amplitude, the object being to distribute land among the landless. In giving wider amplitude to such legislation, the Court should not VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 915 interpret the words of the statute beyond its plain reading reflecting the intent of the legislation. The provisions have to be read, to see whether there is any ambiguity, requiring any further aid for construction of those sections, or whether they are explicit and clear in their meaning. On a reading of the provisions of Chapter III, including Sections 8, 10 & 11 of the said Act, there is no ambiguity as would require any aid to construct the meaning of those Sections. [Paras 19 and 20] [938- B-D] Gurdit Singh v. State of Punjab (1974) 2 SCC 260 : [1974] 3 SCR 896 – relied on.

1.2 The commencement date would be the date from which the provisions would come into force. However, the amendment of 1972 created a deemed fiction by inserting the provision for setting at naught transactions that may have occurred on a prior date, i.e., from 26.9.1970. The result is that the transactions or transfers in this window of about five years would also be hit by the provisions of the said Act insofar as the determination of surplus land is concerned. In the wisdom of the legislature, the window of five years is provided as sufficient for scrutinizing transactions which could be called “dubious and indirect methods” to evade the result of the said Act. This is also reinforced by the provisions of Section 18, dealing with determination of the surplus area of land. The effect of Section 18(b) is that any land, even if it is obtained by partition or other transfer, after the date of 26.9.1970 would be included for the purposes of calculation of surplus land, as land of the person who so transferred the same. The second Explanation to sub-section (1) of Section 10 also provides that documents evidencing such transfer even before 26.9.1970 would not be exempted if they are not registered on or before that date, or even if they are registered after that date, they are not presented for registration on or before that date. Thus, the possibility of evading the land ceiling limits by creating documents on a back date and subsequently producing them for registration is obviated. [Paras 21-23] [938-E-F; 939-A-B, E-F] A B C D E F G H 916 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H Bengal Immunity Co Ltd. v. State of Bihar : [1955] 2 SCR 603 ; Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 : [1996] 5 Suppl. SCR 813 – relied on.

1.3 A legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field. It was held in Mancheri case, “a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature.” Thus, this being the manner of interpreting a provision for deeming fiction, the relevant dates provided, of 26.9.1970 and 2.10.1975, giving a window of five years for the State to take action and prevent any dubious transaction during this period of time, cannot be expanded to an unlimited prior period of time. [Paras 25, 26] [940-B-G; 941-A] Raj Kumar Johri v. State of M.P. (2002) 3 SCC 732 : [2002] 2 SCR 512 ; Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292 : [1980] 2 SCR 1048 – relied on.

#2. The appellate authority allowing the cross-objections: The order was passed by the competent authority, being the SDO, insofar as the two elder daughters are concerned, held in their favour as far as the lands vested in them, in pursuance of the Partition Deed. There was, thus, no occasion for them to file an appeal, nor did they so file an appeal. Other members of the family, who filed the appeal, did not implead them as parties. Once again, naturally so, as they would not be the interested parties, or even pro forma parties in that behalf. However, once the State decided to file cross-objections and, in that, impugned even that portion of the order of the SDO which held in favour of the two elder daughters, they were necessary parties to those proceedings. It is no answer to say that since the effect of the land ceiling would be to restrict the area of their father, VJK, it is for VJK to see how he can benefit his daughters. This fundamental defect cannot be cured in the subsequent proceedings, as the right of appeal is a statutory right and an important one. This view is reinforced by a catena of judicial pronouncements. It has been held that the Code of Civil VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 917 Procedure, 1908 does not contemplate filing of cross-objections against a party who is not a party to the appeal. In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections. The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing. Thus, for this reason also the cross- objection could not have disturbed the status of the two elder daughters. [Paras 28 and 29] [941-D-G; 942-A-B] Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) : [1963] Suppl. SCR 676 – relied on. Rajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 ; Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 – approved.

#3. Unmarried daughters’ claim in HUF property:

3.1 It *Guramma Bhratar case, the acceptability of gifting of a reasonable part of the ancestral property, in favour of daughters, for marriage purposes, was held to be valid, and in accordance with Mitakshara law. Thus, legal view is very clear that a provision for marriage of unmarried daughters can be made out of ancestral property. Such provision can be made before, at the time, or even after the marriage. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. This change was brought about in Maharashtra in 1994, itself. [Para 33, 36] [945- F; 946-E-G] Pugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321 ; R. Kuppayee v. Raja Gounder (2004) 1 SCC 295 : [2003] 6 Suppl. SCR 605 ; *Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa & Ors. [1964] 4 SCR 497 – relied on. Annamalai Ammal v. Sundarathammal & Ors. AIR 1953 Mad 404 – approved. A B C D E F G H 918 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H

3.2 In the instant case, by way of Partition Deed, a provision was made for education and marriage of daughters. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. There is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law. Further, the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4. [Paras 37, 38] [946-H; 947-A-C]

3.3 None of the members of the family ever sought to assail or challenge the deed. It was with the consensus of the family, apart from the legality of the same. Too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition-cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied. Thus, even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. These findings, thus, lead to the conclusion that view of the SDO regarding the land of the two elder daughters, is the correct view. [Paras 39-42] [948-C; 949-B-E] Made Gouda v. Chenne Gowda AIR 1925 Mad 1174 ; Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 ; Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 : [1996] 3 SCR 1100 – relied on. VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 919 Ponnu & Anr. v. Taluk Land Board, Chittur & Ors., (1981) KLT 780 – approved. Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79 : [ 2007] 2 SCR 990; State of West Bengal v. Union of India AIR 1963 SC 1241: [1964] SCR 371 – referred to. PER K. M. JOSEPH, J. (Dissenting)

#1. POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION PRIOR TO 26.09.1970

1.1 The word “transfer” and “partition” as employed in Section 10 and 11 of the Act must be understood as meaning a transfer and a partition which is genuine. In other words, a transfer, be it by any means, as defined under Section 8, must actually result in the divesting of rights of the previous owner and vesting of rights in the transferee. The legislative intention was that such transfers, which otherwise would pass muster as genuine transactions and, therefore, would have the effect of defeating the object of the Act as contained in particular in Section 3 and the Chapter relating to distribution of surplus land should be rendered ineffective. The same is the position in respect of the partition under Section 11 of the Act. Even if there is a genuine partition by which shares are in fact allotted to the parties and the parties enjoy the properties as separate owners of what was previously joint ownership, their rights will be subsumed and overwhelmed by the laudable object underlying Section 3 of the Act and the prohibition would have full sway. [Paras 54] [973-D-G]

1.2 Apart from clauses (a) and (b) of Section 18 of the Act, the Collector is duty bound to ascertain other matters. Clause (c) of Section 18 of the Act specifically mandates that the Officer must find out what is the total area of land held by the holder on the commencement date. Clause (1) of Section 18 of the Act also contemplates that the Collector may take into consideration any other matter which in his opinion is necessary for calculating the ceiling area inter alia. Section 3 of the Act read in conjunction with Section 18(c) and (l), inter alia, establishes that the Collector A B C D E F G H 920 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H has power and it becomes his duty, in fact, to ascertain what is the area held on the appointed day, viz., 02.10.1975. The Legislature has defined the words “to hold” means, “to be lawfully in actual possession of land as owner or as tenant”. Word “owner” is further defined to mean, “in relation to any land includes a person holding the land as occupant, superior holder as defined in the Code, lessee of Government, as it is commonly understood”. If the person is holding the land as occupant, he would be an owner. Therefore, if a person is in possession as an occupant as on the appointed day, the extent of land so held by him, would be considered for the purpose of calculating the ceiling limit. Equally, if the person is in possession as lessee of the Government, he would incur the wrath of Section 3 of the Act, should he have land in excess of the ceiling limit inclusive of the land which he holds as lessee of the Government. [Para 55] [973-H; 974-A-E]

1.3 The Collector, therefore, is duty bound in the course of the inquiry to enquire and ascertain as to what exactly is the holding (as defined in the Act) as on the commencement day. In the matter of gleaning the meaning of a Statute and demystifying the words of a Statute and discovering the intention of the legislation, the court must presume that the Legislature has taken into consideration the felt necessities of the times. It will further assume that the Legislature was aware of the law as it exists and not begin with assumption that the Legislature is ignorant of the opinions expressed by the courts on points of law. [Para 56] [974-F-H] Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras AIR 1957 SC 49 : [1956] SCR 691 ; Kalwa Devadattam and others v. The Union of India and others AIR 1964 SC 880 : [1964] SCR 191 – referred to.

2.1 In a sham transaction, be it a sale or a partition, though it has all the trappings of a transfer or a partition and it may be registered as such, in effect, the transferor continues to be the owner. The person who was the previous owner, would, in the case of the partition which is sham, continue to be the owner. A VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 921 clever camouflage or a document ingenuously disguised as a sale or a partition, cannot be permitted to defeat the intention of the Legislature. If the surrounding circumstances and the actual reality behind the transaction is objectively probed and it is established that the transferor or the previous owner, as the case may be, in the case of a transfer or a partition, respectively, continued to hold the property as such on the appointed day, it must be ignored. [Para 59] [976-G-H; 977-A]

2.2 The interpretation that the Legislature knows the existing law and that the Legislature does not waste words and further that an interpretation which, while on the one hand, furthers the object of the Statute, and equally importantly, is one, which the plain language of the Statute is capable of bearing, would persuade this Court to hold that the Collector, when in the course of an inquiry under Section 18 of the Act, has before it, materials to show that an ostensible transfer or a partition is nothing but a sham and a person or a member of the family continues to hold the land as on the commencement day, it would be well within his powers to act as per the mandate of the Act and include the land for the purpose of calculating the ceiling limit. [Para 60] [977-C-E]

2.3 The Collector is endowed with the powers of the civil court in the matter of both summoning and enforcing attendance of any person. The person summoned can be examined on oath. He has power also to compel production of any document. For the purpose of determining whether a document is a collusive, a fraudulent or a sham transaction, it would indeed be argued that the Authority to so decide must be in a position to consider relevant evidence in the form of deposition of witnesses as also evaluate documentary evidence which may throw light on the matter. Such powers are expressly conferred on the Collector and the powers are the same as that which the civil court enjoys in this regard. [Para 61] [977-G-H; 978-A-B]

3.1 Another argument raised by the appellants is that the partition cannot be impeached on the ground that properties are allotted to the daughters when under the prevalent law the daughters did not have any right to a share. If at all, anybody A B C D E F G H 922 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H

could impeach the said partition, it would be only the affected parties, viz., the persons who are legitimately entitled to a share in partition. It is one thing to say that a sharer whose shares may be affected, could question it in the appropriate forum. It is, however, a far cry from maintaining that the Competent Authority under the Act, when it has before it, evidence which points to the transaction being a sham or collusive affair, is disabled from finding it to be so. If one proceeds on the basis that the transaction was sham, the persons who would benefit from the sham transaction would be the other sharers. In the facts of this case, viz., the father, the wife and the son. This is for the reason that it is implicit in the finding that in the transaction of sham that there is no effective transfer. The properties would continue to be held by the father. The daughters would not get any effective share. The other sharers, who would ordinarily have challenged the transaction, viz., the wife and the son, would be themselves beneficiaries under the transaction and they cannot be expected to challenge the transaction. Acceptance of the argument of the appellants would result in parties defeating the Act by setting up a pretense and wearing a cloak and this cannot be permitted. [Paras 66-67] [979-G; 980-B-E]

3.2 Thus, a transfer or a partition entered into before 26.09.1970, if it is not genuine and is collusive or is a sham transaction, can, in a given case, on materials being present, be found to be so by the Authority under the Act; What is contemplated under Sections 10 and 11 of the Act read with Section 8, undoubtedly, is a transfer as defined in Section 8, being a genuine transaction. A fraudulent transaction or a sham transaction if entered into before 26.09.1970, would incur the wrath of Section (3), and a farce of a partition likewise, bringing about a mock division of property among the sharers, would also incur wrath of Section (3) of the Act. No doubt, even if the transaction is a sham transaction, be it a transfer or a partition, it would incur the wrath of Sections 10 and 11 and it would not be necessary to justify the invalidity with any materials if entered into or effected after 26.09.1970. It does not mean that a transaction which is entered into, particularly after the Act came into force, be it a transfer or a partition, and if there are materials VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 923 and circumstances brought out, which persuades Authorities to hold that it is collusive or a sham transaction and the property did not change the hands, the property would not be liable to be treated as held by the previous ow ner as on the commencement day and included in the account despite the purported transfer or partition. [Para 68] [980-E-H; 981-A-B]

#4. WHETHER THE PARTITION ALLOTTING SHARES TO THE DAUGHTERS WAS UNNATURAL AND SHAM

4.1 The Partition was unnatural for the reason that under the extant Hindu Law, daughters were not entitled to a share. Another reason to hold the partition unnatural is that the wife of VJK was entitled in law upon a partition to a share but she is not given any share. The further finding is that VJK continued to be in effective cultivation of the land, and in this regard, the record of rights was relied upon. [Para 69] [981-E; 982-E-F]

4.2 Under the extant law, women were not co-parceners. A wife could not demand a partition. Women could not enforce partition. This was a right which was conferred upon the males. Also, partition can be of property which is previously held jointly. The father, no doubt had the power under the Mitakshra Law to effect a partition even if the sons did not agree to the same. [Paras 72-73, 75, 77] [984-G; 985-B-G; 986-G] State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others AIR 1985 SC 716 : [1985] 3 SCR 358 – referred to. Mayne’s Hindu law and usage – referred to

#5. THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER

5.1 A Joint Hindu Family would consist of a large number of persons. A Joint Hindu Family could, however, be understood to be a narrower body of individuals that constitutes a coparcenary. The coparceners, at the relevant point of time, consisted of males, viz., son, grandson and the great grandson. They were persons who were entitled to demand partition. A partition involves separate enjoyment and what was previously jointly held property. A wife of a Hindu while not a coparcener A B C D E F G H 924 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H was one such person who was entitled to a share in the partition. But even when a partition took place, the daughter of a person was not a person who was entitled to any share.[Para 80] [991- D-E] Annivillah Sundaramya v. Cherla Seethamma and others 1911 (21) MLJ 695 ; Pugaria Vettoramal and another v. Vettor Gounder, Minor, by his next friend and mother Poochammal and another 1912 (22) MLJ 321 – approved. Annamalai Ammal v. Sundarathammal and Others AIR 1953 Madras 404 ; Guramma Bhratar Chanbasappa Deshmukh and others v. Mallappa Chanbasappa and another AIR 1964 SC 510 : [1964] SCR 497 – referred to.

5.2 The terms of the partition deed have been set out. The first thing that is a striking feature in the partition deed is the exclusion of the wife of VJK. No doubt, she was gifted 60 and odd acres by gift deed dated 20.1.1955. However, when the family partition took place, her right may continue. If the wife under the Hindu Law, when a partition is effected, was entitled to a share, the fact that she is not given any share, does raise a suspicion. The father got 32 and odd acres. The son is given 30 acres. Most importantly the daughters who had no right are seen given a total of 45 acres and 35 acres. The daughters together got 1½ times the share of the son. Any property, which went to the wife, would have been liable to be included in the account of the family for the purpose of determining the ceiling limit. It is no doubt true that there was no concept of family unit at that time but family as a person was subject to the ceiling limit. The elder daughters were 14 years and 11 years, respectively. The son, in fact, was merely 4 years old and the youngest daughter 8 years. The statement in the partition deed that the parties have been using their properties jointly itself, is suspect as none of the daughters had any legal right in the properties. Thus, the circumstances which stand against the document namely the partition being a genuine transaction are: The age of the children being 4, 8, 11 and 14 years; the wife of the VJK not being given any share; the children being represented by their VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 925 grandfather as a guardian when the parents are alive. Allotment of shares to the daughters when daughters did not have any right to share in the partition of a Hindu Undivided Family at that point of time. Out of a total of 106 acres, 45 acres and 35 acres can by no stretch of imagination be treated as ‘small’ or ‘reasonable’. While it may be true that after 1994, a Hindu daughter in Maharashtra had been recognized as a coparcener by Section 29A of the Hindu Succession Act, 1956 and entitled to a share as such, such right did not exist in 1970 when the partition was entered into. [Para 83] [993-D-F-H; 994-A-E]

#6. No doubt, it was open to a Hindu to make a gift of a small portion or a reasonable portion to his daughter. In fact, there is a line of thought that though styled as partition, it could be held to be a gift in the absence of a pre-existing right. The question in this case is not whether a gift could have been validly made or not by VJK to his elder daughters. No case of it being a gift is set up before the Tribunal or the High Court nor before this Court. Definition of ‘member of family’ under the Act included dependent daughters. There is no case that the property was the separate property of VJK. There can no dispute that the property was an ancestral property which he acquired in terms of the earlier partition between him and his father. [Paras 84-85, 88] [994-E-H; 996-D] Potti Lakshmi Perumallu v. Potti Krishnavenamma AIR 1965 SC 825 : [1965] SCR 26 ; Made Couda and Ors. v. Chenne Gouda and Ors. AIR 1925 Madras 1174 ; Ponnu and another v. Taluk Land Board, Chittur and others (1981) KLT 780 – referred to.

7.1 The Tribunal noted that the elder daughters were 14 and 12½ years of age on the date of the partition in 1970. VJK continued to be the owner as the title has not passed by a legally valid instrument. It is stated further that the name of the son is recorded in the Crop Register for the period 1972 to 1975 as occupant. The eldest daughter became major on 03.11.1973, still she is shown as a minor and her father is shown as occupant on her behalf. For the year 1974-1975, the next feature to be noticed is eldest daughter is to shown along with her father as an occupant. However, she is so shown through her guardian A B C D E F G H 926 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H who is shown as her grandfather. For the year 1975-1976, she is shown as occupant through guardian grandfather. She had much earlier become major. The name of VJK which was there in the earlier year is seen removed. [Paras 92, 95, 96] [997-D- E; 999-B; 1000-B]

7.2 It is undoubtedly true that the appeal before the Tribunal was filed by VJK, his wife, son and youngest daughter. There was no occasion for the elder daughters to challenge the order passed as the properties allotted to them in the partition deed dated 31.1.1970 stood excluded. It is in such an appeal that the Government filed a cross objection. Undoubtedly, the cross objection was maintainable both under the express provisions of Section 33 of the Act as also under Order 41 Rule 22 CPC which was also made applicable under Section 33 of the Act. In law it is true that if a cross objection is maintained, the person affected by an order in the cross objection must be on the party array. If he is not on the party array, it is incumbent upon the respondent in the appeal who seeks to maintain a cross objection against a non-party to implead such person as a party. The order of the Tribunal was challenged by VJK and his wife only by filing a writ petition before the High Court. Appellants 3 and 4 in the appeal before the Tribunal were made respondents in such writ petition. It is true that elder daughters were also made respondents. VJK and his wife did not prosecute the writ petition also as representatives of the elder daughters. The finding regarding the partition deed and gift deed by the Tribunal impacted both VJK and his wife on the one hand and also the elders daughters on the other hand [the latter as regards the partition deed]. The Ceiling Account of the family unit was determined taking into consideration the 31 acres allotted to the elder daughters. VJK would been affected in two different capacities. One as head of the family unit and the other as father of the elder daughters. [Paras 99-101] [1000-F-H; 1001-A-D]

8.1 Under the Hindu Minority and Guardianship Act, 1956, Section 6 declares who is to be the natural guardian of a Hindu minor. A perusal of Section 6 of the Hindu Minority and Guardianship Act would show that in the case of unmarried girl, the father and after the father the mother would be the natural VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. 927 guardian. This is in respect of both the person of the minor and the property of the minor. When the writ petition was filed, the eldest daughter was clearly major and married. The second daughter was also a major. The State would contend the partition dated 31.1.1970 was a sham and VJK continued to hold the property. It is not unnatural that he would challenge the inclusion of such property in the ceiling account as property of the family unit on the basis that he continued to be the holder. Allowing the cross objection by the Tribunal if viewed in this perspective did affect VJK. He could indeed question the inclusion of the lands allotted to his elder daughters in the account of the family unit. VJK could support the partition deed but he could not challenge the order of the Tribunal allowing the cross objection on the ground that the cross objection was allowed without giving an opportunity to his daughters. Undoubtedly, VJK was the first appellant before the Tribunal. He along with other appellants therein were heard by the Tribunal as parties before allowing the cross objection in relation to the partition. The ground that the cross objection was allowed without an opportunity to his elder daughters was not available to VJK or his wife. Again, the writ petition has been filed only by VJK and his wife. Though the elder daughters were majors, they did not challenge the order of the Tribunal. Maybe it is true that they were respondents in the writ petition filed by their parents. Even after the Single Judge dismissed the writ petition, upholding the order of the Tribunal, no appeal was filed by the elder daughters. [Paras 102-104] [1001-D; 1002-B-G]

8.2 If indeed the elder daughters had acquired possession and rights under the partition deed in respect of an extent of more than 31 and odd acres of land in between themselves, it passes one’s comprehension that they would not challenge the order which purported to deprive them of their rights. This conduct on the part of the parties would appear to lend assurance to the case of the State that the partition was not a genuine transaction but a sham and the property continued with VJK in which case it would be property held by VJK even on the commencement date namely 2.10.1975 rendering it liable to be included in the account of the family unit. He accordingly A B C D E F G H 928 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H challenged the order of the Tribunal along with his wife who was separately aggrieved by the inclusion of the property found gifted to her. [Para 105] [1002-H; 1003-A]

#9. A writ petition is not a partition suit. In a partition suit, apart from the plaintiff, the defendants also stood in the shoes of a plaintiff. VJK passed away even when the appeal was pending in the High Court. Appeal was filed before this Court originally as a special leave petition. In the Special Leave Petition, it is shown VJK (now deceased) through LRs and the petitioners names are shown. The elder daughters were petitioner No.1 and 2 in the special leave petition and upon leave being granted, they are in the party array as appellants 1 and 2. But they are before this Court only as legal representatives of VJK who instituted the writ petition and appeal along with his wife. Contentions which were available to VJK alone, would therefore be available to them. [Para 106] [1003-C-F]

#42. Section 18 is of vital importance to consider the question and it reads as follows: “18. Collector to consider certain matters.-18.On the day fixed for hearing under section 14, or any other day or days to which the inquiry is adjourned, the Collector shall, after hearing the holder and other persons interested and who are present and any evidence adduced, consider the following matters, that is to say,– (a) what is the total area of land which was held [by the holder on the 26th day of September, 1970; (b) whether any land transferred between the period from the 26th day of September 1970 and the commencement date, or any land partitioned after the 26th day of September 1970, should be considered or ignored in calculating the ceiling area as provided by sub-section (1) of section 10 or section 11; VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.] 969 (bb) whether the holder has any share in the land held by a family or held or operated by any co-operative society or held jointly with others or held as a partner in a firm; and the extent of such share; (c) What is the total area of land held [by the holder on the commencement date? (d) whether any transfer or partition of land is made by the[holder] in contravention of section 8 or 11 and if so, whether the land so transferred or partitioned should be considered or ignored] in calculating the ceiling area under the provisions of sub-section (1) of section [10 or section 11?] (e) whether any land has been acquired or possessed on or after commencement date by transfer or by partition? (f) whether any land has been acquired on or after the [commencement date] by testamentary disposition, devolution on death or by operation of law? (g) what is the total area of land held at the time of the enquiry, and what is the area of land which10[the holder] is entitled to hold? (h) whether any land is held by [the holder] as tenant, and if so, whether his landlord has a subsisting right of resumption of the land for personal cultivation, under the relevant tenancy law applicable thereto? (i) whether any land held by[the holder] is to be forfeited to Government under sub-section (3) of section 10, or of section 13, or should be deemed to be surplus land under any of the provisions of this Act? (j) whether the proposed retention of land by [the holder] is in conformity with the provisions of section 16? (k) which particular lands out of the total land held by1[the holder] should be entitled as delimited as surplus land? (l) any other matter which, in the opinion of the Collector, is necessary to be considered for the purpose of calculating the ceiling area, and delimiting any surplus land.” A B C D E F G H 970 SUPREME COURT REPORTS [2019] 11 S.C.R. A

#43. Section 21 provides that the Collector is to make a declaration regarding surplus land, etc., after the inquiry.

#44. Section 22 provides for compensation for any land acquired. The Section provides for the procedure and method of payment.

#45. Chapter VI comes under the Chapter heading “Distribution of Surplus Land”.

#46. Matters including the priority to be observed are indicated.

#47. Chapter VII deals with provision of appeal.

#48. Section 33 provides that an appeal lies against the order or award of the Collector, before the Maharashtra Revenue Tribunal. Since it may have a bearing on the argument based on the illegality committed by the Tribunal allegedly in allowing the cross objection, it is referred to and it reads as follows: “33. Appeals.- (1)An appeal against an order or award of the Collector shall lie to theMaharashtra Revenue Tribunal in the following cases :– (1) an order under sub-sections (2) and (3) of section 131[not being an order underwhich a true and correct return complete in all particulars is required to be furnished; (2) a declaration2[or any part thereof] under section 21;3[(2a) an order under section 21-A; (3) an award under section 25; (4) an order refusing sanction to transfer or divide land under section 29; (5) an order of forfeiture under sub-section (3) of section 29; (6) an amendment of declaration or award under section 37; (7) an order of summary eviction under section 40. (1A) Any respondent, though he may not have appealed from any part of the decision, order, declaration or award, may not only support the decision, order, declaration or award, as the case may be, on any of the grounds decided against him but take cross- objection to the decision, order, declaration or award which he could have taken by way of an appeal: B C D E F G H VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.] 971 Provided that, he has filed the objection in the Maharashtra Revenue Tribunal within thirty days from the date of service on him of notice of the day fixed for hearing the appeal, or such further time as the Tribunal may see fit to allow and thereupon, the provisions of Order 41, rule 22 of the First Schedule to the Code of Civil Procedure,1908, shall apply in relation to the cross- objection as they apply in relation to the cross-objection under that rule (2) Every petition of appeal under sub-section (1), shall be accompanied by a copy of the decision, order, declaration or award, as the case may be, against which the appeal is made. (3) In deciding such appeal the Maharashtra Revenue Tribunal shall exercise all the powers which a court has and follow the same procedure which a court follows, in deciding appeals from the decree or order of an original court, under the Code of Civil Procedure, 1908. (V of 1908).”

#49. The power of the Tribunal is provided under Section 34, which reads as follows: “34. Power of Maharashtra Revenue Tribunal to confirm, etc.-. The Maharashtra Revenue Tribunal, in deciding an appeal under section 33,may confirm, modify or rescind the decision, order, declaration or award or the amended declaration or award, as the case may be.”

#50. Section 41 bars the jurisdiction of Civil Court and it reads as follows: “41. Bar of jurisdiction.- No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Commissioner, Collector, Tribunal, the officer uthorized under section 27, the Maharashtra Revenue Tribunal or the State Government. Explanation.–For the purpose of this section a civil court shall include a Mamlatdar’s Court constituted under the Mamlatdar’s Court Act, 1906.(Bom.II of 1906)” A B C D E F G H 972 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H

#51. No doubt, Section 44(B) excludes pleaders, etc.. It reads as follow: “SECTION 44B: PLEADERS, ETC. EXCLUDED FROM APPEARANCE.-Notwithstanding anything contained in this Act or any law for the time being in force, no pleader shall be entitled to appear on behalf of any party in any proceedings under this Act before the Authorised Officer, the Tribunal, the Collector, the Commissioner, the State Government or the Maharashtra Revenue Tribunal: Provided that, where a party is a minor or lunatic, his guardian may appear, and in the case of any other person under disability, his authorised agent may appear. Explanation. - For the purposes of this section, the expression “pleader “ includes an advocate, attorney, vakil or any other legal practitioner.”

#52. Among the changes that have been ushered in the definition clause, the following are noted: - In section 2, sub-Section(5A) was added and it defined ‘Code’ to mean Maharashtra Land Revenue Code, 1966 and sub-section 6A, which was added as the ‘commencement date’ means date on which the Amending Act, 1972, comes into force. Section 2 (11A) was inserted and it purported to define ‘family unit’ to mean family unit as explained in Section 4. In Section 2(20), definition of ‘member of a family’ was substituted and it reads as follows:- “(20) ‘member of a family’ means father, mother, spouse, brother, unmarried dependent sister, divorced and dependent sister, son, son’s wife, unmarried daughter, divorced and dependent daughter, sons’s son, son’s unmarried daughter, son’s divorced and dependent daughter.” A completely different Chapter came to be inserted as Chapter II. This was done by way of substitution of the earlier Chapter, the Chapter contained in the Act prior to the amendment. VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.] 973

#53. The following questions would arise for consideration by the A Court:-

#1. Whether the authorities under the Act have the power to find that the partition entered into before 26.9.1970, was sham or collusive and thereby ignore the same?

#2. Notwithstanding the registered partition dated 31.01.1970, whether the property allotted to the elder daughters of Shri Vithaldas is liable to be included in the account of the family unit?

#3. What is the effect of the cross-objections of the State being allowed in the absence of elder daughters, in the appeal before the Tribunal? POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION PRIOR TO 26.09.1970

#54. In order to appreciate the intention of the Legislature in this regard, the word “transfer” and “partition” as employed in Section 10 and 11 of the Act must be understood as meaning a transfer and a partition which is genuine. In other words, a transfer, be it by any means, as defined under Section 8, must actually result in the divesting of rights of the previous owner and vesting of rights in the transferee. The word “transfer” must be understood, as describing, cases where under the law, by means of the devices mentioned in the Explanation to Section 8, the previous owner ceases to be the owner and the transferee acquires his rights. The legislative intention was that such transfers, which otherwise would pass muster as genuine transactions and therefore would have the effect of defeating the object of the Act as contained in particular in Section 3 and the Chapter relating to distribution of surplus land should be rendered ineffective. The same is the position in respect of the partition under Section 11 of the Act. Even if there is a genuine partition by which shares are in fact allotted to the parties and the parties enjoy the properties as separate owners of what was previously joint ownership, their rights will be subsumed and overwhelmed by the laudable object underlying Section 3 of the Act and the prohibition would have full sway.

#55. I have noticed the matters to be considered by the Collector under Section 18 of the Act. Apart from clauses (a) and (b), he is duty bound to ascertain other matters. Clause (c) of Section 18 of the Act B C D E F G H 974 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H specifically mandates that the Officer must find out what is the total area of land held by the holder on the commencement date. Clause (l) of Section 18 of the Act also contemplates that the Collector may take into consideration any other matter which in his opinion is necessary for calculating the ceiling area inter alia. Section 3 of the Act read in conjunction with Section 18(c) and (l), inter alia, establishes that the Collector has power and it becomes his duty, in fact, to ascertain what is the area held on the appointed day, viz., 02.10.1975. I have noticed that the Legislature has defined the words “to hold” means, “to be lawfully in actual possession of land as owner or as tenant”. Word “owner” is further defined to mean, “in relation to any land includes a person holding the land as occupant, superior holder as defined in the Code, lessee of Government, as it is commonly understood”. If the person is holding the land as occupant, he would be an owner. The word ‘occupant’ is defined with reference to its definition in the code. It is noteworthy that the word ‘owner’ includes the specified categories. If a person is owner as it is commonly understood, then he is comprehended. Therefore, if a person is in possession as an occupant as on the appointed day, the extent of land so held by him, would be considered for the purpose of calculating the ceiling limit. Equally, if the person is in possession as lessee of the Government, he would incur the wrath of Section 3 of the Act, should he have land in excess of the ceiling limit inclusive of the land which he holds as lessee of the Government. The same is the position with respect to a mortgagee in possession and a person who holds land for his maintenance.

#56. The Collector, therefore, is duty bound in the course of the inquiry to enquire and ascertain as to what exactly is the holding (as defined in the Act) as on the commencement day. In the mater of gleaning the meaning of a Statute and demystifying the words of a Statute and discovering the intention of the legislation, the court must bear in mind certain presumptions. The court will presume that the Legislature has taken into consideration the felt necessities of the times. It will further assume that the Legislature was aware of the law as it exists. It will not begin with the assumption that the Legislature is ignorant of the opinions expressed by the courts on points of law. It will presume that the Legislature was aware of the decisions rendered by the courts on points of law. VITHALDAS JAGANNATH KHATRI (D) THR. SHAKUNTALA @ SUSHMA v. STATE OF MAHARASHTRA REVENUE & FOREST DEPTT. [K. M. JOSEPH, J.] 975

#57. In Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras11, this Court had occasion to consider what the word “benami” has come to denote: “30. Now, the assumption underlying this argument is that the Tribunal had found in its order that the intermediaries were benamidars for the appellants, but there is no basis for this in the order. In this connection, it is necessary to note that the word ‘benami’ is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word ‘benami’ is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid. …” (Emphasis supplied)

#58. In Kalwa Devadattam and others v. The Union of India and others12, the matter arose under Sections 25A, 67 and 30 of the Income Tax Act, 1922. One of the questions which arose was whether the partition involved in the said case was sham. The High Court relied upon the circumstances to find out that the deed of partition involved in the said case, though registered, was nominal. The object of the O R D E R In view of difference of opinions and the distinguishing judgments (Hon’ble Sanjay Kishan Kaul, J. allowed the appeal and Hon’ble K.M.Joseph, J. dismissed the appeal), the matter be placed before Hon’ble the Chief Justice of India for referring the matter to a Larger Bench. Devika Gujral Matter referred to larger Bench A B C D E F G H