AMB SINGH Vs. SUB-DIVISIONAL OFFICER

JUDGEMENT

(1.) THIS writ petition is directed against the order of the Board of Revenue dated October 27, 1978 (Anx. 4) whereby the Board of Revenue allowed the revision and set aside the order of the Revenue Appellate Authority dated October 20, 1975 (Anx. 2) and restored the order of the learned SDO dated May 31, 1975 (Anx. 1). The Sub -Divisional Officer, Dhinmal decided the petitioners ceiling ease by his order Anx. 1. He recorded that the portion is recognisable and acceptable but as the petitioners being the co -tenants are entitled to equal shares. On that basis the Sub -Divisional Officer determined the ceiling area of the petitioners. Each of the petitioners was entitled to 37.12 standard acres considering the number of members of the family of Jaisingh as 3, he found that no part of share of his land is resumable whereas the number of the family members of the petitioner Amb Singh was less than five so he found that 7.12 standard acres land is resumable. Consequently he ordered that 51 Bighas 1 Biswa land as specified in his order shall vest in the State Government in accordance with the option. The Revenue Appellate Authority on separate appeals preferred by the petitioners in view of the partition effected between the petitioners found that no land of petitioner Jaisingh is liable to be resumed as the land in his possession, is not in excess of the ceiling area whereas 23 Bighas 1 Biswas land of petitioner Ambsingh is liable to resumed of the Kharas. Nos. 108 and 36. The State of Rajasthan preferred revision against the order of the Revenue Appellate Authority and the revision was allowed by the Board.

(2.) THE petitioners case is that before a few months of the death of the petitioner's father -in -law Shri Motisingh their father had partitioned the land between the petitioners in 1958 and in that partition petitioner No. 1 Ambsingh received 205 Bighas 11 Biswas petitioner No. 2 Jaisingh 261 Bighas. At the time of the partition both the petitioners were married. The petitioners' father stated that the land which fell to the share of petitioner No. 1 was valuable, fertile and plain whereas the land of petitioner No. 2 was sloppy and the location of his land was not better than that of petitioner No. 1. It was also stated that according to the classification 16 Bighas 11 Biswas land of petitioner No -1 is B.A.(Chahi) whereas 11 Bighas of land of the petitioner is B.A. (Chahi). The petitioner further case is that the partition deed was executed by the petitioners in a Bahi on January 21, 1963 and a copy of the same was transferred for mutation oil February 8,1969 and mutation was sanctioned on October 21, 1971. Subsequently the petitioner got the deed of partition registered on August 25, 1970 wherein it was recorded that partition of the agricultural land had already been effected between the petitioners. The petitioners challenged the order of the Board of Revenue on the ground that when once the partition had taken place between the petitioners for the purpose of determining ceiling area of the petitioners the partition ought to have been recognised and the ceiling area of each of the petitioner could have been determined in the light of the actual partition which had taken place between the petitioners. Oral partition had taken place as far back as in 1958. Subsequently it was executed in the Bahi on January 21,1968 and in pursuance of which mutation was effected and thereafter partition deed was also registered. The Board of Revenue erred in not determining the ceiling area of the petitioners individually on the basis of the actual partition and bad wrongly found that the S.D.O. was right in proceeding to determine the ceiling area applicable to the petitioners. On the basis of that both the petitioners and brother will receive equal shares in the total land of 466 Bighas and 11 Biswa.

(3.) , Mr. L.R. Mehta submitted that partition is not a transfer of pro -perty. Section 30D of the Rajasthan Tenancy Act, 1955 (No. III of 1955) (in short the Act) provides for certain transfers not to be recognised for ceiling area under Section 30C and Section 30DD provides transfers to be recognised if they are effected upto Dec.31,1969; when partition is not a transfer the co -parcener or co -shares have a right in the whole of the property and the transfers and co -sharers and co -tenants have a right to joint enjoyment of their joint property. That means that by partition severance takes place and each individual co -sharers or co -tenants had severance and partition is entitled to separate enjoyment of his share of the property which may fall to his share. It should be taken that he was entitled to that particular share right from the date he became entitled to that share, and so even when partition has taken place after the appointed date the partition should be recognised, for the purpose of determination of the ceiling area under Section 30C. It is true that partition of joint Hindu family property cannot be regarded as transfer for the simple reason that every co -parcener has an antecedent right and title to the entire co -parcenery property though the extent of his right is not determined until partition takes place. On account of partition the joint title is transferred into separate title of. Co -parceners in respect of the separate properties which may fall to their individual share. The process of partition involves only the joint enjoyment of the property by all the co -parceners into separate enjoyment by such co -parcener of the respective property allotted to their share. Partition under the Hindu Law puts an end to the unity and continuity of the ownership between the co -parceners. Thus it is to say that no transfer of property takes place when a partition of the property is effected. By partition the individual co -parcener simply gets his share and he becomes exclusively entitled to his share, the title and possession of his share from the date of partition vests in him.