BHAGWAT SINGH AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) This writ petition has been preferred by four writ petitioners assailing the validity of the order dt. 7.7.1994 passed by the Additional Collector, Sawaimadhopur and the order dt. 16.2.1995 passed by the Board of Revenue, praying for their quashment and seeking a declaration in favour of the petitioners that the registered gift deed dt. 30.3.1968 executed by late Maji Sahiba Sardar Kanwar Ranawatji in favour of late Smt. Nandbai, widow of Shri Bhanwar Singhji, be declared as valid and further that the land covered by the said gift deed may not be included as the property of said Maji Sahiba Sardar Kanwar Ranawatji and that the land sold out to Rameshwar Lal and Bhanwar Singh, sons of Vijai Singh, be not deemed as agriculture land of the deceased Maji Sahiba. It is also prayed that the respondents be directed to re-adjudicate and re-determine the acquisition of land under the ceiling law by excluding the land covered by aforesaid gift deed. The writ petitioners have asserted that late Maji Sahiba Sardar Kanwar Ranawatji widow of Late Shri Thakur Bhawani Singhji, Resident of Village Chandnoli, Tehsil Bonly, District Sawaimadhopur, had a chunk of agriculture land in the said village as also in village Bharthala, District Tonk. The total land area measured upto 104 standard acres. The SDO, Sawaimadhopur had earlier initiated the acquisition proceedings against the said Maji Sahiba Sardar Kanwar Ranawatji under the Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973 (for short the Act of 1973), but the same was dropped by order dt. 26.5.1975 as in his view no surplus land was found in her hands. It was thereafter that the State Government vide order dt. 6.7.1983 reopened the case and remanded the matter back to the Additional Collector, Sawaimadhopur for fresh adjudication u/S. 15(2) of the said Act. The Additional Collector by order dt. 15.11.1988 determined 421 bighas 17 biswa of land in excess with late Maji Sahiba Sardar Kanwar Ranawatji for being acquired. This order was challenged before the Board of Revenue by the petitioners. The Board vide aforesaid judgment dt. 3.1.1992 accepted their appeal and remanded the matter back to the Additional Collector, Sawaimadhopur for fresh determination. He thereupon issued fresh order in ceiling case No. 1/92 on 7.7.1994 but did not recognise the transfer of land covered by registered gift deed dt. 30.3.1968 admeasuring 86 bigha 7.5 biswa as valid transfer holding that it was executed with an intention to defeat the provisions of the Act of 1973. Regarding transfer of the agriculture land admeasuring 45 bigha 5 biswa by unregistered sale deed dt. 17.7.1963 and 10.3.1964 to Rameshwar and Bhanwar Singh respectively, it was held that this purchase cannot be treated as bona fide as neither the purchasers were agriculturists, nor were the transfers made by registered sale deed.

(2.) According to the petitioners, Smt. Nand Bai was widow since childhood and was since then leading a miserable and starving life. Since Smt. Nand Bai became widow during her childhood, the aforesaid land was gifted to her so that she could maintain herself. Considering that Smt. Nand Bai was sister of the husband of Maji Sahiba Sardar Kanwar Ranawatji. Late Maji Sahiba Sardar Kariwar Ranawatji therefore gifted 86 bigha and 7.5 biswa land to Smt. Nand Bai, widow of late Shri Bhanwar Singhji by means, of registered sale deed dt. 30.3.1968 and actual physical possession was also transferred. Mutation No. 120 dt. 1.2.1971 was entered by virtue of the registered gift deed dt. 30.3.1968 in the name of Smt. Nand Bai by Gram Panchayat Bhadoti. The certified copy of the mutation has been placed on record. Smt. Nand Bai was not a family member of late Maji Sahiba Sardar Kanwar Ranawatji. She continued to deposit the land revenue till she expired in the year 1980. Maji Sahiba Sardar Kanwar Ranawatji expired in the year 1993. The present petitioners were substituted in her place by virtue of her Wilt. Smt. Nand Bai executed a registered Will in favour of Smt. Hitlar Kanwar and Smt. Nonand Kanwar. Mutation was attested in their names and they are having possession of the land. Their affidavits were also submitted on 3.3.1993. Regarding 5 bigha and 9 biswa of land, a separate mutation was opened as the khasra No. 824 was in joint name of late Maji Sahiba Sardar Kanwar Ranawatji and some other person, who had half share each in the said khasra. Smt. Nand Bai was in the physical possession of the gifted property since 1958. Gift deed was attested by Shri Rajaram, Sub-Registrar, Shri Hari Singh, Patwari, Shri Bhanwar Singh, Sarpanch and Shri Deen Dayal, Deed Writer. All these witnesses were present when the gift deed was drafted and executed by power of attorney holder of Maji Sahiba, Shri Durga Mahesh Singh.

(3.) Shri K.K. Mehrishi, learned senior counsel for the petitioners has argued that the gift deed dt. 30.3.1968 was registered gift deed, a fact not disputed by the respondents. This gift deed was executed by Durga Mahesh Singh, power of attorney holder of Maji Sahiba Sardar Kanwar Ranawatji. Both the Additional Collector, Sawaimadhopur and the Board of Revenue have committed serious error of law in not recognising a valid registered gift deed, at page No. 1 whereof the endorsement was made by the then Sub-Registrar Rajaram and Bhanwar Singh, Sarpanch and Hari Singh, Patwari, who also put their signatures on the same. Deen Dayal, who scribed the deed, has also put his signature. Learned senior counsel has referred to definition of "attested" as given in Sec. 3 of the Transfer of Property Act. It was argued that the respondents have not denied the existence of gift. There is no reason for not recognising the same. The Additional Collector and the Board of Revenue have wrongly held that the gift deed was not attested on 30.3.1968. In fact, mutation entry No. 120 was attested on the basis of said gift deed in favour of Smt. Geeta Bai. There was no reason to hold that no possession was taken over by the donee. Even the land sold under unregistered sale deed to Rameshwar Lal and Bhanwar Singh in the year 1964 respectively ought to have been recognised.