SANT SINGH Vs. STATE OF PUNJAB, ETC

JUDGEMENT

(1.) This petition is directed against the order dated July 15, 1959, passed by the learned Commissioner Patiala Division, exercising the powers of the Government under the Pepsu Tenancy and Agricultural Lands Act, 1955. The petitioner is a landowner of village Attlan Kalan, Tehsil Mansa, District Bhatinda. He has alleged that on September 17, 1954, he transferred 13 Bighas and 18 Biswas of land in favour of his wife Smt. Jagir Kaur through a report in Patwari's Roznamcha which was entered at Serial No. 17. Later on, the surplus area case of the petitioner was processed and an area measuring 162 standard acres was declared to be surplus. The date on which this determination was made is not mentioned in the petition. Sometime later, the petitioner filed an application before the Collector, Bhatinda district, in which he urged that he had gifted land measuring 13 Bighas and 18 Biswas in favour of his wife and that this area should be excluded from his holding for determining his surplus area. The Collector vide his order dated November 15, 1968, made a recommendation to the Commissioner that the latter should exercise his revisional powers and allow the Collector to review his earlier order under which the surplus area of the petitioner had been determined. The Commissioner, Patiala Division, heard this case and remanded it back to the Collector for an enquiry on the point whether actual transfer of physical possession on the spot was made by the petitioner in favour of this wife on September 17, 1954, or not. The Collector, Bhatinda District, vide his report dated April 30, 1969, informed the Commissioner that the transfer in favour of the petitioner's wife "did not take place on the spot. Actually the possession was not transferred before August 21, 1956". When this matter came up before the learned Commissioner once again, he observed that the facts which were being urged in support of the revision petition, had actually been urged before the Collector Agrarian when he determined the surplus area of the petitioner for the first time. That decision had become final since no appeal was filed against the same. According to the Commissioner, a mere entry of the mutation in the name of the petitioner's wife did not alter the legal position. It had not been established that the transfer actually took place contemporaneously. After making these observations the learned Commissioner dismissed the petition for review.

(2.) The learned counsel for the petitioner has relied upon a Division Bench Judgment of this Court in Ranjit Singh and others v. The State of Punjab etc., Civil Writ No. 7 of 1963, decided on November 11, 1963. In that case a report had been recorded in the daily diary of the Patwari showing the transfer of some land in favour of the minor members of a Hindu Undivided Family. This report was made on August 31, 1954, and the actual mutation on the basis of this report was sanctioned on October 12, 1956. The Special Collector came to the conclusion that since the actual transfer took place after August 21, 1956, the transfer made in the name the prescribed relations i.e., the sons, should be ignored for determining the surplus area of the landlord. The petitioner in that case filed a Writ Petition and their Lordships of the Division Bench relying in a passage appearing in Hindu Law by Mulla approved of the proposition that the father of a Joint Hindu Family had the power to divide the family property at any moment during his lifetime. The Bench also observed that severance of joint status being a matter of individual volition, if the head of the family expresses this definite and unequivocal intention to separate the joint family, this by itself was enough in law to result in separation. This principle was also followed by a single Bench of th is Court in Jagir Singh v. Financial Commissioner, Punjab, Chandigarh and others,1967 CurLJ 204. I have no quarrel with the proposition of law laid down in the above-mentioned authorities. So far as a Hindu Undivided Family is concerned, separation comes into being as soon as any of the members makes an unequivocal declaration in that behalf. In some cases, it has been held that service of a notice on the other members of the family to effect separation by itself had the effect of disrupting the joint family. These considerations cannot be applied in case of a gift. A gift is defined as 'the transfer of immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee'. An intending donee has no right to force the donor to execute a gift deed in his favour. Again, the recording of a report before the Patwari by itself does not complete the transaction of gift. It has further to be shown that the donee accepted the gift. The gift would become complete only after it has been accepted by the donee. In the instant case, the reviewing authority has come to a finding of fact that at the time when the alleged report was made actual physical possession was not transferred in favour of the wife of the petitioner. Relying on these circumstances, the Commissioner refused the Collector the permission to review his earlier order. The reasons advanced by the Commissioner are valid and convincing and it would not be open to me to reassess these reasons in proceedings under Article 226 of the Constitution.

(3.) The learned counsel for the petitioner then drew my attention to a Single Bench decision of this Court in Bakhtawar Singh v. The State of Punjab etc., Civil Writ No. 1715 of 1964, decided on March 3, 1971. In that case, a mutation in respect of a gift was entered in the Patwari's Roznamcha in October 19, 1954. On the basis of this mutation, a decree was obtained by the donee. The authorities refused to act on the report on the ground that mutation of gift was rejected by the authorities. The learned Judge held that in report itself the donor had made the unequivocal declaration to gift away his property to his wife and son and the authorities by ignoring this declaration had committed an error apparent on the face of the record. Support for this view was drawn from Jagir Singh's case . I may, however, add that Jagir Singh's case , related to a partition of a Joint Family Property, but the principle laid down that case was applied by the learned Judge to the case of a gift as well. While sitting in single Bench, I am bound to follow with respect the view taken by another learned Judge of this Court.