J JAGANNATH Vs. SUB DIVISIONAL OFFICER

JUDGEMENT

(1.) THE aforesaid writ petitions involve a common question of law, so they can conveniently be disposed of by this common order. in both the writ petitions, minor co-parceners share in the ancestral land has not been excluded from the "family" unit and their share in the land has been clubbed with the land of their father.

(2.) IN the writ petition filed by the petitioner Jagannath, the facts are that the land is an ancestral one. A suit for partition was filed in March 1976 and it was decreed on June 13, 1976. The land was divided in three shares between Jagannath and his two sons viz. Ramswaroop (major) and Hemraj (minor ). IN the Ceiling proceedings, Ramswaroop's share was excluded but Hemraj's share was clubbed with the land of his father Jagannath and on that basis, the Sub-Divisional Officer, after leaving 30 Standard Acres of land ordered to resume 53. 40 Standard Acres by his order dated February 8, 1975 (Anx. 3 ). The petitioner Jagannath was unsuccessful in his appeal before the Revenue Appellate Authority, which was decided on June 18, 1975 (Anx. 4 ). The learned Revenue Appellate Authority in its order found that it has not been proved that Hemraj is cultivating his land separately from his father and is not dependent on his father. The revision petition was preferred before the Board of Revenue. The Board of Revenue, however, adverted to rule 17 (4) of the Rajasthan Tenancy (Fixation of Ceiling Land) of Government Rules, 1963 (for short 'the Rules') and after referring to the said rule, observed that even supposing Hemraj's share in his fathers property could be notionally calculated because he is a member of the Joint Hindu Family and has antecedent title in it from his birth, the property being ancestral, it cannot be excluded for the purposes of Ceiling. The learned Member of the Board of Revenue further observed- "thus, even if Hemraj's share in his father's property can be notion-ally worked out. it shall have to be clubbed again with his father's share for purposes of ceiling because he being minor was dependent upon his father and was thus included in his family as defined by Sec. 30-B". Taking this view, the revision petition was dismissed.

(3.) I have given my serious and anxious consideration to the rival contention advanced by the learned counsel for the parties. The statutory definition of the word "family" given in Sec. 30-B of the Act, is to the effect that "family" shall mean a family consisting of a husband and wife, their children and grand children being dependent on them and the widowed mother of the petitioner, so dependent. Children and grand-children can be treated as members of the family, only if they are dependent on their parents and not otherwise. In the statutory definition, it would appear that minority and majority has not been taken into consideration. What has been taken into consideration is the dependency of the children and grand-children on their parents. The dependency is a question of fact and has relation to the question of maintenancy of the children and grand-children those who can maintain themselves, are not dependent on their parents, whether they are minor or major and would not considered to be members of the family. In order to exclude the children and grandchildren from the concept of the word "family" as defined in Sec. 30-B (a), it has to be averred that they are not dependent on their father and it has to be established by satisfactory and credible evidence that they are not dependent on their father. It is only on the basis of such evidence, if adduced, a finding can be reached whether the children and grand-children are dependent on their father or not.