WASUDEO MADHAORAO ASSARKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A dialectical debate having somewhat far reaching consequence upon the legislative dynamic and the statutory dictates as contained in the provisions of the Maharashtra Agricultural Lands( Ceiling on Holdings) Act. 1961 hereinafter called the act) is raised by the present petition.

(2.) For the purpose of the present petition, the facts are few and are undisputed. Petitioner No,. 1 is the father and petitioner No. 2 is his son. The joint Hindu family of which petitioner No. 1 was the Karta held agricultural lands to the extent of 157 acres 19 gunthas at different villages, all located in tahsil Akot, district Akola, for which under The Act the ceiling area is 7800 acres. Petitioner No.2 Milind was born in the family on November 3, 1961 The family is governed by Mitakshara Hindu Law.

(3.) The Act came into force on January 26, 1962 and on that date the family of which the petitioner No. 1 was the Karta held land in excess of the ceiling area of 78 acres and was thus liable to file return under Section 12 of the Act. It appears that petitioner No. 1 filed a return on February 28, 1962 which was rejected as there was omission of field survey No. 12 and he was directed to file a fresh return. As there was fine imposed. proceedings appear to have gone before the Mah. Revenue Tribunal and the fine imposed on petitioner No. 1 was reduced to Rs. 10. Thereafter , fresh return was filed on August 11, 18967 . By that return , it was pointed out that petitioner No. 2 who was minor filed a civil suit No. 344 of 1965 in the Court of Civil Judge, Junior Division , Akot against his father i.e. the Karta of the family in which he prayed for partition. It was stated that eventually the said suit was decreed. The preliminary decree for partition was made by the Civil Judge, Junior Division . Akot on April 6, 1967 . By that decree , the Court declared that Milind, the minor son in the family, was entitled to get to get his share in the property shown in the plain Schedule A to H a d was entitled to get his share partitioned. The partition was direction to be made through Collector under Section 54 of the Code of Civil Procedure as those properties, involved the revenue paying estate. It appears from the preliminary decree that to this suit defendants Nos. 2 to 15 were joined on the allegations that the Karta of the family had sold survey No. 12 area 31 acres 37 gunthas to the defendants Nos. 2 to 15 which transaction was neither supported by legal necessity nor was for the benefit of the estate nor for the benefit of the estate nor for the benefit off the minor. It was alleged in the suit that the Karta was squandering the property for satisfying the immoral pleasures. The minor filed the suit by guardian who was his grandfather by name Vishwambhar Fadnaik. The preliminary decree shows that the strangers i.e. alienees like defendants Nos. 2,5, 14,1,5, 9, 10 ,3 4,6, and 7j were represented by counsel. It is only defendant Nos. 12 and 13 who remained exparte. It does not appear that defendant No. 1 i.e. the father was represented by any counsel. By that decree the field survey No. 12 which was transferred to defendants Nos. 2 to 15 , was directed to be put to the share of defendant No. 1 On September 15 , 1967 , it appears that eventually partition was effected of this revenue paying estate by Naib Tahsildar, Akot in Revenue Case NO. 2/22/67-88 of Khaparwadi Bk. As a result of this litigation, Milind the minor son got 78 acres of Land in his possession as his property. It is obvious that the suit was filed sometime in October 1965 and was decreed on March 23, 1967 signed by the learned Judge making the decree on April 6, 1967. Thus by filing the suit in 1965 , Milind purported to declare his unequivocal intention to separate from the Joint family and word out his right through court, which is eventually reflected in the decree made by the Court in his favour.