STATE OF BIHAR Vs. K M ZUBERI

JUDGEMENT

(1.) This appeal by the State of Bihar raised the question whether major sons of a family governed by Mohammedan law are entitled to a separate unit while determining the ceiling area of a ceiling surplus holder In the ceiling fixation case of a land holder Aftab Ahmed, the Member, Board of Revenue came to the conclusion that an adult son of a land holder governed by Mohammedan law would be entitled to a separate unit since an adult son of a land holder governed by the Mitakshara School of Hindu Law is entitled to the same. The State if Bihar challenged the said decision in Patna High Court by filing a Writ Petition and when the matter came up before a Division Bench, in view of the significance of the matter the Division- Bench referred the matter to a larger Bench and the case was heard by five judges of the Court. The majority view was expressed by Chief Justice Sandhawalia, as he then was, and the minority views were those of Justice H.L. Agrawal, as he then was, and Justice L. M. Sharma, as he then was. Three question were formulated by the Court, those questions being :-

(2.) The short facts are that the land holder Aftab Ahmed was shown to be holding 50.02 acres in the draft statement. The said land-holder filed an objection claiming that he is entitled to one additional unit for his adult son. This was rejected by the Additional Sub-divisional Officer. He determined 11.12 acres to be the surplus. The land holder appealed to the Collector but the appeal was dismissed for default. The land holder carried the matter in revision to the Board of Revenue. The Member, Board of Revenue took into consideration the Amendments to the Bihar Land Reforms (Fixation of Ceiling area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 22 of 1962)(hereinafter referred to as 'The Act') made under Act 1 of 73 and Act 72 of 76 and came to the conclusion that personal law of the land holder is not required to be taken into consideration for determination of the holdings. He further held that since the adult son of a land- holder governed by the Mitakshara Law is entitled to a separate unit the decision should be identical with regard to the land holder governed by Mohammedan law. Accordingly he allowed the revision and called upon the authorities to re-determine the ceiling. The State of Bihar being aggrieved by the same filed Writ Petition in the Patna High Court. The learned Chief Justice who spoke for the majority on an analysis of the different provisions of the Act as well as the tracing history of the legislation and the amendments made thereto came to the conclusion that in the ceiling law the statutory "family" as defined in the Act has wholly submerged the ceiling of the land holder and such concept of "family" is entirely secular in character and has universal application irrespective of religion, faith or the personal law applicable to individual members. He further held that despite definition of the statutory "family" and its secular nature excluding personal laws, to still bring in the concept of the Mohammedan family or Christian family or Mitakshara family for the purposes of the Act, is basically fallacious and would run against the gamut of ceiling legislation. The learned Chief Justice accordingly answered the question No. 1 in the following words:-

(3.) Aggarwal, J. did not agree with the answer given to the second question by the learned Chief Justice and then adverting to the provisions of the Mitakshara law and how a minor male child of a Mitakshara coparcenery acquires interest in the property by his birth and is entitled to a share and how the position of Mohammedan son is entirely different came to the conclusion that the earlier decision of the Patna High Court in Imamul Hasan Choudhary's case, AIR 1982 Pat 89 (FB)has laid down the law correctly and , therefore, the adult son of a Mohammedan land holder would not be entitled to separate unit. Sharma J. also differed from the majority view expressed by the Chief Justice and agreed with the conclusion of Agrawal, J. but on different ground. The learned Judge held that a land holder whether an individual or a family within the meaning of the Act belonging to any religion, faith or group cannot claim additional land for his ceiling area on the ground of a major son. In other words according to Sharma J. the Act nowhere conferred an additional unit on the major son of a land holder belonging to Mitakshara School of Law, and if he gets a separate unit it is on account of his own.