AND THE FATHER HAS NO ADVERSE INTEREST AGAINST THE MINOR Vs. STATE OF BIHAR EQUIVALENT CITATION:2010-PLJR-4-857

JUDGEMENT

(1.) The petitioner has challenged the orders passed by the Additional Member, Board of Revenue in Revision Case No. 229 of 1987 confirming the order of the Collector, Gopalganj contained in Annexure-2 and the order of the Deputy Collector Land Reforms, Gopalganj as contained in Annexure-1 deciding in favour of the pre-emptor under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).

(2.) The petitioners purchased 7 kathas of lands of plot no. 133 and 5 dhurs of lands of plot no. 132 from one Paras Nath Singh through a registered sale deed dated 7.5.1985. The case of the petitioners is that they were minor at the time of purchase. Respondents 5 to 8 filed an application under Section 16(3) of the Act within time and paid the security amount of 10 per cent of the consideration amount. Further case of the petitioners is that they are the co-sharers of the land recorded in the name of Kudrat Mian, with respect to plot no. 130, which is in the boundary of both plot nos. 133 and 132. The said Kudrat Mian is the uncle of the petitioners. On perusal of the original sale deed produced by Mr. Mathur, this Court finds that the petitioners have been described as the vendors in the sale deed and have not been shown as minors. This Court, therefore, cannot come to the conclusion that the petitioners were minors on the date on which the sale deed was executed. Even for the sake of argument, if it is accepted that the petitioners were minors on the date on which the sale deed was executed, it does not help their case in any manner. The Mohammedan Law does not envisage the concept of being co-sharer in a property. A joint family property of a Muslim would be divided between the brothers and children of the brothers would only inherit after the death of their father in accordance with the share granted to their father, unless the land is gifted or in some way endowed to a particular person. Therefore, the submission of the petitioners that by virtue of being a co-sharer in plot no. 130, they become the boundary raiyat of plot nos. 132 and 133 has to be rejected.

(3.) Learned Counsel relies on the judgment delivered in CWJC No. 9323 of 1988*, disposed of on 3rd August, 2007 where in similar facts, the matter was remanded in view of the decision rendered in the case of State of Bihar V/s. K.M. Zuberi, 1986 AIR(Pat) 166The decision envisages that the personal law would not be taken into consideration for determining the holdings under the Act, as it was held that the minor sons of a family governed by Mohammedan Law should be equally entitled to a unit under the Ceiling Act as major sons of a family governed by Mitakshara School of Hindu Law. The Five-Judge Bench's decision has been set aside by the Supreme Court in the case 1996 2 PLJR(SC) 55 and as such the petitioners cannot get any benefit by virtue of the judgment delivered in CWJC No. 9323 of 1988.