Patna High Court
State Of Bihar vs K.M. Zuberi And Ors. on 15 November, 1985
Equivalent citations: AIR1986PAT166, 1986(34)BLJR176, AIR 1986 PATNA 166, 1986 BLJR 176, 1986 BRLJ 18, 1986 BBCJ 82, (1986) ORISSA LR 67, (1986) BLJ 214
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT S.S. Sandhawalia, C.J.
1. (Majority view) The three significant issues, which emerge in this reference to the large-Bench, deserve a somewhat precise formulation in the terms following :
1. Whether the personal law applicable to the family has to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, despite the insertion of Clause (ee) and Explanation II thereto in Section 2 of the said Act?
2. If the major sons of a family governed by the Mitakshara School of Hindu Lal are entitled to a separate unit under the said Act, then would a major son of a family governed by Mohammadan Law be debarred therefrom?
3. Whether the Full Bench in Imamul Hasan Choudhary v. State of Bihar 1982 BBCJ (HC) 208 : (AIR 1982 Pat. 89) lays down the law correctly on the aforesaid points?
2. The relevant facts lie in a narrow compass. The total area of land held by respondent 2, the land-holder Aftab Ahmad and his family was shown in the draft publication as 50.82 acres. In the ceiling proceeding the respondent land-holder in his objection petition laid claim to one additional unit for his adult son, Faiyaz Ahmad. This was summarily rejected by the Additional Sub-divisional Officer (Ceiling) and on merits the landholder was allowed to retain 39 acres of land and the rest of 11.82 acres of land was declared surplus. Aggrieved thereby, respondent 2 appealed to the Collector but it would appear that the said appeal was dismissed in default without a speaking order. The matter was then carried in revision before the Board of Revenue and the learned Additional Member, in an exhaustive and lucid judgment, took the view that after the insertion of Clause (ee) by Act 1 of 1973 and the addition of Explanation II thereto by Act 22 of 1976 in Section 2 of the Act the personal law of the landholder was no longer to be taken into consideration for the determination of the holdings. He held that on the settled law that the adult son of a landholder governed by the Mitakshara law being entitled to a separate unit, the position would be identical with regard to an adult son of a landholder governed by Mohammadan Law. Accordingly, the revision was allowed and the authorities below were directed to re-determine the ceiling in accordance with the said view.
3. The State of Bihar has come up by way of this writ petition against the order of the Board of Revenue. This case originally came up before a Division Bench where a serious challenge was laid to the correctness of the view in Imamul Hasan Choudhary v. State of Bihar 1982 BBCJ (HC) 208 : (AIR 1982 Pat 89) on the ground that it has been rendered per in curiam without noticing the statutory amendments in Section 2 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to as the 'Act'). The learned counsel for the petitioner State also, with great fairness had taken the stand that the issue should be considered by a large Bench in view of its considerable significance in the context of the applicability of Ceiling Laws to Mohammadan Landowners not only in the State but on the national level. Consequently, the case has been referred to a larger Bench and that is how it is before us now.
4. Now, the core of Mr. Daman Kant Jha's contention on behalf of the appellant (petitioner?) State is that it is only the individual landholder as such who can be entitled to a separate unit under the Act. According to him, unless land is first owned and held by a person, he cannot possibly lay claim to an independent unit and, for that matter, even to an inch of the land under the ceiling Law. In sum, the basic submission was that unless some right or title to the land is first established in the individual landholder, the very question of any entitlement to a separate unit would not arise. On this premise, he contended that the adult son of a landholder in a coparcenary governed by the Mitakshara Law would be entitled to separate unit because he acquired a right to property by birth. However, in the identical situation an adult son in a family governed by Mohammadan Law would be debarred from a separate unit because he did not have any right in the property by birth. Counsel contended that Explanation II to Section 2(ee) with regard to the total exclusion of personal law was in relation to determining the family, only and did not operate any further or have any effect on the quantum of ceiling area for such a family. Consequently, he took the firm stand that an adult copercener governed by the Mitakshara Law in an undivided Hindu family had the right to a separate unit under the Act, which would be prohibited in the case of an adult son in a family governed by the Mohammadan Law.
5. On the other hand, Mr. Asghar Hussain, learned counsel for the respondents, took the firm stand that the Act, as now amended by the earlier Ordinances and Act 55 of 1982, was a statute for imposing a maximum ceiling and calculating the permissible area for the family unit and the declaration of surplus area for acquisition by the State and its subsequent distribution to die landless persons. He pointed out that the radical change in the Act after 1973and die preceding Ordinance had wholly transplanted the concept of individual landholding by a family-holding for the purposes of the Act this was done in the larger perspective on the national level to have a broadly uniform ceiling law irrespective of the personal law of the parties or the custom, usage or agreement to the contrary. The culmination of this principle was by the insertion of Explanation II to Section 2(ee) by Act 22 of 1976 debarring the personal law altogether in determining the composition of the family and as a necessary consequence for the purposes of the Act. It was, therefore, contended that there could be no hostile discrimination between the adult sons of landholding families governed by the Mitakshara Law on the one hand and the Mohammadan Law on the other.
6. Having noticed the rival stand of the parties, one must now proceed to test them on the anvil of the relevant provisions of the Act. However, before one proceeds to do so. it becomes necessary more than in any other case to delve briefly into the history of the legislation and, with particularity, to the concept of the family holding accepted at the national level and effectuated by the radical changes in the Ceiling Law in 1973 and thereafter. For our purposes, it sufficies to notice that agrarian land reform and a ceiling on agricultural holdings had become an article of faith in the freedom movement itself. On attaining independence, the necessity for wide ranging radical land reform in order to improve our rural economy was very actually realised. With that end in view, immediately after 1947, the legislatures of different States enacted laws for bringing about agrarian reform and imposing a ceiling on agricultural holdings as a part of the process of the reconstruction, of the rural economy within the country. Inevitably, such legislation became the subject matter of serious constitutional challenge by the landholders and the first locus classicus on this aspect indeed arose from this very State in State of Bihar v. Kameshwar Singh AIR 1952 SC 252.
In the wake of the said judgment, the Panel on land reforms set up by the Planning Commission in 1955 examined the issue at the national level and unanimously accepted the principle that there should be an absolute limit on the amount of land which any individual landholder might hold. It was concluded that the policy of imposition of land ceiling would be able to make a significant contribution towards reforming the rural economy and reducing glaring inequalities in ownership and use of land, and, consequently, the disparities in agricultural income and, thus, enlarge the sphere of self-employment. In accord with this line of thinking, the States enacted or amended their respective agrarian legislation in which the ceiling was sought to be imposed on the individual landholdings and the limit thereof was considerably reduced.
Within this Slate the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act was enacted in 1961 and enforced on the 19th April, 1962. A reference to Sections 2(g), 4 and 5 would leave no manner of doubt that at that stage ceiling was imposed on a person and individual landholder as such.
7. However, a debate at the national level was raised within the country and considered whether the family should not be adopted and substituted as a unit instead of an individual for applying the ceiling on land holdings and what should be the size of such a family. The matter was considered by the Land Reforms Division of the Planning Commission (1960) in the Second Five Year Plan Chapter 9 on the Agrarian Land Reorganisation and in the Report of the Committee on the ceiling of land holdings (April, 1961) and later in the Chief Ministers' Conference on land reforms on the 26th and 27th Sept. 1970. A large number of alternatives were duly and deeply considered, though it may be noticed that every alternative was beset with difficulty of some kind or the other and no particular course was free from blemish altogether However, ultimately on the basis of consensus reached at the Chief Ministers' Conference held on July 23, 1972 clear-cut policy decisions were taken on these vexed questions. Thereby the family as a unit was adopted as against an individual land holder for the purposes of the imposition of ceiling. This was considered necessary because it would reduce the scope for evasion of law by effecting mala fide partitions and transfers since such transactions are usually made in favour of family members, and further normally in the rural agricultural set up of our country the family was the operating unit and the lands of a family constituted a single operational holding and, therefore, should be related to the capacity of a family to cultivate the land personally. Keeping all these aspects in view, the concept of the family unit was artificially defined and a double standard for fixing ceiling one for the primary unit and the other for an adult son living with the family was adopted irrespective of any personal law which may be applicable to the party. It is thus manifest that the foundational base of the ceiling laws thereafter was sought to be radically shifted from the individual landholder to that of a statutory family holding. Indeed the very concept of a personal holding was totally submerged in this statutory family holding, It was on this sheet anchor that thereafter radical changes were made in the agrarian legislation in the respective States to effectuate the aforesaid principle and purpose. Therefore, it is against this significant background that the relevant statutory provisions have to be necessarily construed.
8. One may now proceed to notice the particular sections of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, as now amended, around which inevitably the whole controversy must revolve :
"2. Definition. -- In this Act, unless there is anything repugnant in the subject or context : --
x x x x x (ee) 'Family' means and includes a person, his or her spouse and minor children : (inserted by Act 1 of 1973) X X X X X X Explanation II -- The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act";
(Inserted by Act 22 of 1976.) "(g) 'Land holder' means a family as defined in Clause (ee) holding land as raiyat or as under-raiyat or a mortgagee of land in possession or holding land permanently settled by Government or lessee of land not resumable by Government".
(Substituted by Act 55 of 1982 and shall be deemed always to have been substituted.) "(k) 'Raiyat' means primarily a person who has acquired a right to hold land for the purpose of cultivating it hy himself or by members of his family or by hired servants or with aid of partners, and includes also the successors-in-interest or persons who have acquired such a right and includes, in the district of Santhal Parganas, village headman in respect of his priviate land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Ben. Act VI of 1908), applies, a Mundari Khunt Kattidar or a Bhuinhar;"
"4. Fixation of ceiling area of land -- On the appointed day the following shall be the ceiling area of land for one family consisting of not more than five members for the purposes of this Act :
xxxxx (Substituted by Act IX of 1973).
"No person to hold land in excess of the ceiling area : -- (1)(i) It shall not be lawful for any family to hold except as otherwise provided under this Act, land in excess of the ceiling area.
Explanation.-- All lands owned or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family.
xxx xxx xxx xxx"
(Substituted by Act 55 of 1982 and shall be deemed always to have been substituted.) Now it would be manifest from a plain reading of the aforesaid provisions that structural changes by way of amendment by and subsequent to Act 1 of 1973 have in a way transformed the concept of ceiling under the same. Prior to 1973 the concept of a family holding was wholly foreign to the Act. The very foundation of the landholder and the concept of the ceiling were directly related to and rested on the individual person holding the land or, as the words stood extended, to include a company, institution, trust association or body of individuals. However, after the amending Act 1 of 1973, this stands totally obliterated and the concept of the individual landholder has been wholly substituted by that of a statutory family. Thus, the true foundational basis of the ceiling law is now the statutory family holding and not the individual land-holder's ownership. This is manifest from the insertion of Clause (ee) in Section 2 which, in specific terms, defines family' as a person, his or her spouse and minor children only.
The adult children, though ordinarily and in common parlance, would be considered as integral members of the family also stand wholly excluded from the statutory definition. Even more significant is the substitution of the definition of the land holder in Clause (g) of Section 2 which has been given a retrospective effect from the very date of the enforcement of the Act in 1962. This, in essence and in law, means that the earlier concept of the individual person who holds land had been totally wiped off the statute book from its very inception. Yet again in Section 4 which was substituted by Act IX of 1973 the ceiling area of land is now with regard to the family alone with the qualification that the same should not consist of more than five members. This artificial statutory concept has thus supplanted the individual landholder with regard to the most significant question of the fixation of ceiling area of land.
Lastly, in Section 5(1)(i), which again has been substituted by Act 55 of 1982 and equally has been given retrospectivity from 1962, the individual person holding the land has evaporated to give place to the family holding. Of particular significance is the Explanation to the aforesaid provision. This by a legal fiction provides that all lands owned or held individually by members of a family or jointly by some or all of them will, in the eye of law, be deemed to be owned or held by the family. Thus, if the land is individually held, the same for the purposes of ceiling law is obliterated. One is reminded of the celebrated words in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at Pp. 132-133 :-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The aforesaid rule stands approved and affirmed by the Final Court in State of Bombay v. Pandurang Vinayak AIR 1953 SC 244 and Boucher Pierre Andre v. Supdt. Central Jail, Tihar. New Delhi (1975) 1 SCC 192 : (AIR 1975 SC 164). The necessary result therefore is that in the substratum of the Act now and in the ceiling law the statutory family as defined in the Act has wholly submerged the concept of the individual landholder. Learned Counsel for the respondents is further right in forcefully highlighting that this concept of the family under the Act is artificial and a creature of the statute and is entirely secular in character. This statutory family has universal application irrespective of the religion, faith or the personal law applicable to its individual members.
9. Once it is held as above, the basic argument of the petitioner state rested, as it is, on the individual landholder must necessarily fall to the ground. As was noticed at the outset, the submission was that the landholder must be an individual who must establish his right and title to land to claim a holding under the ceiling law. In my view, that contention is given the lie direct by the legislative changes wrought in the statute after 1973.
10. Mr. Asghar Hussain, the learned counsel for the respondents, had rightly highlighted the very nature and purpose of the ceiling laws in general and of the Act in particular. It was pointed out that the Act after its innumerable amendments is now primarily for declaring and calculating the surplus area and for the acquisition of the same by the State and its subsequent distribution to the landless persons. This stand has the stamp of the approval by the final court in Dattatraya Govind Mahajan v. State of Maharashtra, AIR 1977 SC 915 wherein Bhagwati, J. (as his Lordship then was) had observed as follows with regard to the analogous, if not the identical, provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 : --
"The Preamble and the long title of the Principal Act show that it was enacted to impose a maximum ceiling on the holding of agricultural land in the State of Maharashtra and to provide for the acquisition of land held in excess of ceiling and for the distribution of such land to landless and other persons with a view to securing the distribution of agricultural land in a manner which would best subserve the common good of the people."
Therefore, the Act is in no way a statute for providing for succession or, in any way, affecting the personal law of the party and in the converse to be affected by the same. As noticed, the primary rule of the Act is the imposition of a ceiling, the consequent calculation of the surplus land and its distribution to the landless and, as now amended, its character is wholly secular in which the consideration of religion and personal law of the party cannot be allowed to intrude. The ceiling laws, which are almost identical at the national level, have, therefore, to apply evenly and uniformly to the whole citizenry irrespective of the personal or customary laws applicable to individual landholders. That legislature designedly secularised the concept of the statutory family and consequently of the ceiling laws rested thereon (if at all the matter was in doubt) seems to be manifest from the insertion of Explanation II by Act 22 of 1976 in the definition of family under Section 2(ee). This unequivocally declares that the personal law shall neither be relevant nor taken into consideration in this field.
What is next relevant, and, perhaps, of equal significance in this context is the fact that Explanation (1) to the unamended Section 2(g) defining 'land-holding', which referred to an undivided Hindu family, has not only been deleted by the amending Act 55 of 1982 but, to put the matter beyond any pale of doubt. the said amendment has been made retrospective from 1962 onward. Therefore, as construed today, it must be assumed that there is no hint of or reference to any question of undivided Hindu family any longer or any question of the same being either governed by the Mitakshra law or the Dayabhaga law in the context of a family. Equally it deserves recalling that Sub-section (3) of Section 5 as originally enacted referred to the personal law of the persons entitled to be maintained by the landholder and dependent upon him and this provision has also been now unceremoniously deleted from the substituted Section 5 by Section 55 of 1982 with retrospective effect. There is thus no manner of doubt that the legislature has plainly wiped the statutory slate totally clean of any reminiscence or stains of religion or personal laws applicable to the parties for the purposes of the ceiling law.
11. In fairness to the learned counsel for the petitioner State, one must notice what appears to me a somewhat specious argument sought to be raised by him in construing Explanation II to Clause (ee) of Section 2. It was contended that this debars the application of the personal law only with regard to the composition of the family and not the importing of the personal laws in the matter of determination of the ceiling area. Such a construction would, to my mind, suffer from the vice of literaiity. Reading it so would be construing the provision with blinkers and unmindful of the larger import of the Act and the purposeful insertion of this provision by Act 22 of 1976. It bears repetition to recall that by the amending proceess (commencing with Act 1 of 1973) which in part is made retrospective from the very inception of the Act, the individual landholder has been totally submerged by the concept of the statutory family for the purposes of the ceiling under the Act. Indeed, one has, therefore, to completely obliterate the concept of the individual person as the landholder and the personal law applicable to him whilst construing the Act.
Now, once it is noticed that the very basis and foundation is thie statutory family for the determination of the land ceiling and Explanation II declares in unequivocal terms that the personal law shall be totally barred for the determination of the family, it seems plain that equally the personal laws are barred at the threshold for the purpose of the Act. Indeed, it calls for pointed notice that the Explanation ends with the phrase "for the purposes of the Act." To still bring in personal laws by a side-door despite the statutory bar at the threshold is, to my mind, an attempt to outflank both the spirit and the letter of the law and the clear legislative intent behind the same. Equally one must highlight that same Section 3 declares that the Act shall have effect notwithstanding anything to the contrary contained in any other law, custom or usage, and thus is unequivocal in this declaration that the ceiling law overrides the personal law for the purposes of the determination of the quantum of area. Indeed, the Act for this purpose is a code in itself.
After the clear and designed mandate of Explanation II to Section 2(ee) it seems impermissible to bring in the concept of the undivided Hindu family afresh in this field. This is further indicated by the express deletion of explanation (i) to the earlier Section 2(g) which made reference to the undivided Hindu family and by Sub-section (3) of Section 5 which referred to the personal law of the party. The end result is that after the insertion of Explanation II all considerations of the individual landholder or the personal law applicable to him as such are totally alien to the Act. Therefore, despite definition of the statutory family and its secular nature excluding personal laws, to still-bring in the concepts of a Mttakashara family or Dayabhaga family or a Mohammadan family for the purposes of the Act, is basically fallacious and would run against the grist of ceiling legislation. Any consideration based on religion or personal laws is, therefore, foreign to the construction of this Act. Steeped as we are in the tradition of personal laws, there may be some difficulty to steer oneself clear of the pervading concept of the undivided Hindu family. However, this exercise must be forcefully done and the act must be liberated from the shackles of any personal law operating to the advantage or detriment of landholders on the ground of a religion or faith. The hypertechnically literal construction of Explanation II to Section 2(ee), therefore, must be rejected.
12. So far I have examined the matter in the background of the legislative history and on principle, and the language of the Act, in the context of the structural changes made therein by post-1973 amendments. However, it seems to me that the view I am inclined to take is totally buttressed, if not concluded, by the recent judgment of the final Court in Vengdasalam Pillai v. Union Territory of Pondicherry, AIR 1985 SC 571. Therein their Lordships were construing the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act. 1973 which also contained in analogous provision with regard to the definition of family in Section 2(1) of the Act aforesaid. From the report it would appear that the said provision does not have any corresponding provision like Explanation II to Section 2(ee) of the Act, Nevertheless their Lordships in construing the same have focrefully observed as under: --
"The fallacy underlying the arguments advanced on behalf of the appellant is that they proceed on the erroeneous assumption that the family referred to in the Act must conform to the concept of the joint family as known to Hindu law. The provisions of the Act are applicable to all holders of land in the Union territory of Pondichery irrespective of religion, community etc. The lands may be held by Hindus, Christians, Muslims or by persons belonging to other religious faiths. All of them are equally governed by the provisions of the Act. The concept of a joint family is totally foreign to the personal laws of some of these communities. It is, therefore, manifestly wrong to approach the interpretation of the sections of the Act with the pre-conceived notion that in using the expression family, the legislature had intended to connote an undivided family as known to the Hindu law and that after a partition had taken place in a Hindu jont family there cannot be a family consisting of the father and his divided minor sons for the purpose of fixation of ceiling under the Act.".
13. Again, directly on the point are the observations of my learned brother, B. P. Jha, J., speaking for the Division Bench in Shekh Abdul Aziz v. State of Bihar, C. W. J. C. No. 202 of 1978 decided on 27th Feb. 1980:--
"The Additional Collector in annexure-2 granted four units to the family for the petitioner. In appeal the order was confirmed, vide annexure-3. In revision it was reduced to one unit. The reasoning of the learned Additional Member, Board of Revenue, is that the major sons and daughters are not entitled to separate unit as they belong to muslim family. In our opinion this is not the correct position of the law. In the Muslim family also adult sons and daughters are entitled to separate units in ceiling case. We therefore, set aside the portion of the order mentioned in annexure-4, by which four units were reduced to one unit."
Though the matter was examined only on principle and taken as axiomatic, in my view, the conclusion is correct and I would, therefore, affirm the same. It is true that in Imaamul Hassan Choudhary v. State of Bihar, (AIR 1982 Pat 89) (FB) (supra) this view was not approved of, but this aspect would be discussed in detail in the later part of the judgment.
14. To conclude on this aspect, the answer to question No. 1 posed at the outset is rendered in the negative and it is held that the personal law applicable to the familly is not to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
15. One may now advert to the second question, namely, if the major sons of a family governed by the Mitakshara School of Hindu law are entitled to a separate unit, whether the major sons of a family governed by the Mohammadan law would be debarred therefrom. Now, the foundational basis on which this issue has to be examined is the settled law within this jurisdiction that in the case of a family governed by the Mitakshara law the major sons are entitled to a separate unit under the Act. This legal position is so well established that no view contrary to the same could be pointed out at all and thus in view of its long history the same has to be accepted on the basis of even the rule of stare decisis. The learned Advocate General and the learned counsel for the parties are all agreed that this basic premise herein is undisputed. We are, therefore, not even remotely called upon to examine the correctness of the view and must proceed ahead on the firm foundation that the Act envisages the grant of a statutory unit to the sons of a family governed by the Mitakshara schools.
16. Proceeding on the aforesaid articulate premise, it would necessarily follow on the findings arrived at on the preceding question No. 1 that the major sons of every family would stand on an identical footing for their entitlement to a separate unit irrespective of the personal law of the party. Once it is held, as has already been done, that the foundational base for the ceiling law is now the statutory family concept and not the individual landholder and further the personal law applicable to the family is to be altogether excluded from consideration, then a fortiori if the major sons of a Mitakshara family are admittedly entitled to a separate unit, the same situation would inhere with regard to the major sons of a family governed by the Mohammadan law as well. On no rationle can the latter be deprived of parity or equality with the similarly placed major sons in a family governed by the Mitakshara school of Hindu Law. Holding otherwise would be running directly contrary to the intention of the legislature in inserting Clause (ee) in Section 2 and in particular to the direct mandate and thrust of Explanation II thereof.
17. In fairness to the learned counsel for the petitioner State, one must notice the somewhat specious argument on the basis of Bihar Ordinance 113 of 1971. It was sought to be argued therefrom that the legislature had drawn some distinction between the families governed by the Mitakshara law and those not so governed, by conferring, for a short period of 3 to 6 months, the right to transfer or gift agricultural land by persons not governed by the Mitakshara law. This contention has only to be noticed and rejected. It deserves pointing that under Section 5(5) of the Act, as originally enacted, the law gave an option to every landholder irrespective of his religion or faith to transfer or gift any land held by him to his son, daughter or any children of his son or daughter, etc. in the following terms :--
"5 Any landholder, subject to the provisions of the tenancy law of the area may, if he has not already transferred, transfer, till the commencement of this Act and within six months thereafter by way of gift any land held by him as raiyat to his son, daughter, any children of his son or daughter, or to such other person or persons who would have inherited such land or would have been entitled to a share therein had the landholder died intestate in respect thereof at midnight between the date of die commencement of this Act and the day just preceding such date so as not to exceed, together with any other land held by the donee, the area the donee can hold under Section 5".
This provision continued to remain on the statute book till the year 1970. Mr. Asghar Hussain, learned counsel for the respondents, pointed out that only in view of some doubts being raised with regard thereto in a debate in the assembly it was thought necessary, as a matter of abundant caution, to clarify the issue by promulgating Ordinance 113 of 1971. It is plain that the issuance of the aforesaid ordinance is altogether a neutral factor in this context and in no way lends an aid to the learned counsel for the petitioner.
17A. Lastly, in this connection it may be noticed that the final Court itself in Nand Lal v. State of Haryana, AIR 1980 SC 2097 approving the rationale of the secular statutory family and the equality of the right to a separate unit for adult sons irrespective of personal laws observed in the following terms : --
"It has been pointed out that keeping all these aspects in view the concept of family was artificially defined and double standard for fixing ceiling, one for the primary unit and other for the adult son living with the family was adopted. In fact, a provision like Section 4(3) which makes for the augmentation of the permissible area for a family when the adult sons do not own or hold lands of their own but are living with the family has one virtue that it ensures such augmentation in the case of every family irrespective of by what personal law it is governed and no discrimination is made between major sons governed by different systems of personal laws."
In the light of the authoritative enunciation and the earlier discussion, the answer to question No. 2 is rendered in the negative and it is held that if the major sons of a family governed by the Mitakshara school of Hindu Law are entitled to a separate unit under the Act then the major sons of a family governed by Mohemmadan Law are equally entitled to the same.
18. Coming now to question No. 3, it remains to advert to Imamul Hasan Choudhary v. State of Bihar, (AIR 1982 Pat 89) (FB) (supra) and the frontal challenge to its correctness which, indeed, has necessitated this reference to the larger Bench. Undoubtedly, therein the earlier view of this Court in Shekh Abdul Aziz v. State of Bihar, (supra) was overruled and it was held that a Muslim major son was not entitled to a separate unit. However, a close reading of the somewhat brief discussion on this point in the said case discloses two foundational fallacies. It is plain that the Bench rested its decision on the supposed and, indeed, non-existent Explanation (i) to the definition of landholder in Section 2(g). In para 4 of the Report, the aforesaid provision was quoted and by an obvious error Explanations (i) and (ii) to Section 2(g), which stood long repealed, were quoted as part thereof. To pointedly clarify, it may be noticed that Clause (g) prior to its amendment by Act 1 of 1973 carried with it two Explanations (i) and (ii). The language of amending Act 1/73 in so far as it related to this provision stated that-
"for Clause (g) the following clause shall be substituted namely:-- (g) 'Landholder' means a family, as defined in Clause (ee) holding land as raiyat or as under-raiyat or a mortgagee of land in possession."
Now it is well-settled that Explanations, provisos, etc., are integral pan of a provision and, therefore, when the substituted clause did not carry with it any Explanations, the old Explanations could not be possibly attached to the substituted clause. It seems that some private publication and, for a while, Government publication also slipped into the error of continuing the repealed Explanations (i) and (ii). However, the admitted position before us now was that this was unwarranted and all doubts in this context are set at rest by Ordinance No. 66 of 1981 and the subsequent Act 55 of 1982 which not only substituted the new provision but laid down that it shall be deemed always to have been so substituted. These amendments are clearly indicative of the legislative solicitude to remove ail traces of the personal laws of the parties from the field of the ceiling law so as to bring out a secular, and universal status for all citizens equally. Thus, the Explanations to Clause (g) had been completely wiped off the statute book and the Bench was in error in wrongly quoting the provisions of Section 2(g) with the Explanations and inevitably misconstrued the same. Indeed, in para b of the Report, it was observed as follows;--
"It cannot, therefore, be held that a Muslim major son also becomes a landholder within the lifetime of his father within the meaning of this Act and constitutes a family as defined under Section 2(g) of the Act. The distinction was noticed by the framers of the law while inserting the explanation of the word 'Landholder' in Section 2(g) of the Act. A member of undivided 'Hindu family acquires right by birth and becomes entitled to a share in the land."
It is plain that the whole rationale was rested on the supposed Explanation which, as repeatedly pointed out, has been wiped out entirely from the statute book from its very inception.
19. Again it would appear that the counsel for the parties were sorely remiss in not bringing to the notice of the Bench the material provisions of Explanation II to Section 2(ee), and consequently the Full Bench altogether ignored the most material provision in this context which, in a way, went to the root of the matter. That provision completely barred at the very threshold the investing of personal laws into the concept of the family for the purposes of the Act. Having not noticed the above provision, inevitably the whole discussion in the Full Bench centered on the personal laws of the parties and the supposed distinctions betwixt the Hindu Law and the Mohammadan Law with regard to the concept of inheritance, etc. This, in the face of the statutory bar, was thus unwarranted.
20. It must, therefore, be inevitably held that in both wrongly importing and resting itself on an Explanation to Section 2(g), which non-existence (was non-existent?) because of its retrospective repeat, and the failure to notice Explanation II to Section 2(ee), the Full Bench judgment has been rendered per incuriam and cannot be supported. This apart, the material legislative history of the provisions and the structural changes shifting the foundation of ceiling laws from the individual landholder to the concept of the statutory family holding went wholly unnoticed. Equally, the corresponding changes in Section 4and 5, which were both relevant and material, were not even adverted to the earlier judgments of the Final Court in Dattatraya Govind Mahajan v. State of Maharashtra, AIR 1977 SC 915 and Nand Lal v. State of Haryana, AIR 1980 SC 2097 were not cited before the Division Bench. The view taken therein now seems to be directly and in headlong conflict with Vengdasalam v. Union Territory of Pondicherry, AIR 1985 SC 571. For all these reasons and with the deepest deference it has to be held that Imamul Hasan Choudhary v. State of Bihar, (AIR 1982 Pat 89) (FB) (supra) does not lay down the law correctly and is hereby overruled. The answer to question No. 3 posed at the outset in thus rendered in the negative.
21. In the light of the answers rendered above to the three significant questions posed at the outset, it would inevitably follow that this writ application must necessarily fail. The learned Additional Member of the Board of Revenue was eminently right in the view he took that now the position in law would be identical with regard to an adult son of a family governed by the Mohammandan Law as is the case with that governed by the Mitakshara Law. The challenge on behalf of the State to that finding must, therefore, collapse and the said application is hereby dismissed without, however, any order as to cost.
B.P. Jha, (Majority view)
22. I agree.
Hari Lal Agrawal, J. (Minority view)
23. I have carefully perused the judgment prepared by the learned Chief Justice and I regret my inability to agree to the same so far as it relates to the answer to the second question posed by him in the beginning of the judgment, namely, as to whether the major sons of a family governed by the Mitakshara School of Hindu Law and the major sons of a family governed by the Mohammadan Law are equally entitled to separate units under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961? The learned Chief Justice has answered this question in para 17 of the judgment in these words:
"..........it is held that if the major sons of a family governed by the Mitakshara School of Hindu Law are entitled to a separate unit under the Act then the major sons of a family governed by Mohammadan Law are equally entitled to the same."
24. I am affraid the above view cannot be borne out from the provisions of the Act. Section 5 of the Act which prescribes the limitation for possession of land in excess of the ceiling area, the ceiling area having been fixed under Section 4, clearly contemplates that a person who is permitted to hold land within the ceiling area must be owner of the land. The explanation to Section 5 reading thus:
"All lands owned or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family."
also inevitably leads ot the same conclusion. The basic scheme of the Ceiling Act is to acquire surplus land beyond the ceiling area, from the owners of the lands for its distribution to the weaker section of the community and in order to achieve this purpose and object of the Act a fiction of "family" has been contemplated for the purpose of working out the surplus land. The definition of "family" has been taken to be a unit for the purpose of holding lands within the permissible ceiling area of land fixed under Section 4 of the Act. The artificial definition of "family" means and includes a person, his or her spouse, and minor children. A minor male child of a Mitakshara coparcenery acquires interest in the property by his very birth and is entitled to a share on partition. No discussion is required on this aspect of the matter. By including such a minor child within the definition of the expression "family" he has been deprived of his right to claim a separate unit for himself independently of his parents, by clubbing him together with his parents. Since the provision on the face of it is in conflict with the personal Hindu Law by which a minor son is governed, the Legislature had to provide an explanation saying that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act.
25. The position of a Mohammadan son on the other hand, is entirely different from a Hindu son governed by the Mitakshara School. A Mohammedan son has got no interest in the properties of his father during his lifetime. He gets an interest only after the death of his father. The very idea that such a person who has got no right or interest in any property would also be entitled to retain some property within the permissible ceiling area, in my considered opinion, would be making him owner and giving him share in the properties of his father even during his lifetime, quite contrary to the law governing him and, therefore, creating inroads in the personal laws governing the Mohammedans. The ownership in the property and right to hold a property is the sine qua non for giving him a unit of land as fixed in Section 4 of the Act. In my view, the position is so obvious that it does not call for much discussion. There is no question of doing violence either to the secular concept or any other provision on taking this view, nor do I find any support for taking such a view from any of the decisions referred to by the learned Chief Justice in his judgment.
26. In Vengdasalam Pillai v. Union Territory of Pondicherry, AIR 1985 SC 571 dealing with the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, the definition of the expression "family" being somewhat analogous to the provisions of the Bihar Act, save and except that there it included within its fold the minor sons and unmarried daughters of a person, a question arose as to whether "family" referred to in that Act must conform to the concept of joint family as known to Hindu Law, as in Hindu Law there could not be a family consisting of the father and his divided minor sons for the purposes of fixation of ceiling under the Act, and it was held that the Legislature contemplated a different concept of the family, wholly distinct and different from "an undivided Hindu family" and in that position even the separate properties of the members constituting the statutory family are to be treated as forming part of the holding of the family. And this was upheld on the theory that me purpose of the Act was to peg down the process of determination of the ceiling area to the state of things that obtained on the 'appointed day'.
27. Nand Lal v. State of Haryana, AIR 1980 SC 2097 was also a case where a similar provision in the Haryana Ceiling Act was challenged. There the definition of "family" also included some minor children and the argument that this provision was contrary to Article 14 of the Constitution was repelled.
28. The definition of a "landholder" referred to in para 8 of the judgment of the learned Chief Justice is also indicative of tile fact that the person who can be declared to be entitled to possess one "unit" of land must have the basic right to hold the land.
29. I would, therefore, hold that the decision in the case of Shekh Abdul Azin v. State of Bihar, (C. W. J. C. No. 202 of 1978, decided on 27th Feb. 1980) has nor been correctly made, and would approve the view of this Court in the case of Imamul Hassan Choudhary v. State of Bihar, 1982 BBCJ (HC) 208 : (AIR 1982 Pat 89) (FB).
30. In the result, I would allow this application and quash the order of the Additional Member, Board of Revenue, dt. 31- 7-1979 (Annexure-3).
LALIT MOHAN SHARMA, J. (Minority view)
31. I agree with the views of Mr. Justice Agrawal that the order of tile Additional Member, Board of Revenue, respondent 1, as contained in Annexure 3 should be quashed.
32. By the impugned order the respondent 1 has held that the major son of a Muslim family is entided to a unit of land under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as 'the Act'). The land in question exclusively belongs to Aftab Ahmad, respondent 2. He claimed an additional unit of land on tile ground of Faiyaz Ahmad, tile respondent 3, his major son. The question which arises for decision in this case is whether the respondent 3 is entitled to a unit of land, or, in the alternative, the respondent 2 can claim tile same on that basis.
33. Before I deal with the amended provisions of the Act or the decisions relied upon on behalf of the respondents, I propose to discuss certain basic legal questions.
34. The Act provides for the fixation of ceiling area on agricultural land and acquisition of surplus land by the State. It is axiomatic that there should be an owner of the land, and before any step is taken under the Act, his identity is known. Section 6 of the Act requires the Collector to submit returns by the landholders owning land in excess of the ceiling area, and if such a person fails to submit the returns, Section 7 authorises the Collector to collect necessary information and to call upon a defaulting landholder to submit the return within the prescribed period. A landholder neglecting such a notice is rendered liable to pay fine. He is given certain benefits including his right to receive compensation money for the excess area and to select the area which he desires to retain et cetera. He is also subjected to many restrictions including restriction on future acquisition by inheritance, bequest, gift, and on the right to sublet, and is made liable to pay fine for contravention of several provisions of the Act. He has been given a right of appeal under Section 30. It is, therefore, not possible to apply the provisions of the Act to any piece of land without reference to its owner. A question immediately arises as to how to determine the title to the land. In cases where there is no dispute, a problem on this count may not arise. But what about a case where the landholder died before the relevant provisions of the Act became effectively operative? On whom the Collector could serve the notice under Section 7 or take steps under several provisions? If the admitted landholder died intestate, it is necessary to find out his heirs at law. I will illustrate the point by referring to another situation. Let us assume that soon after service of notice on the admitted landholder he dies, and so it becomes essential to substitute his heirs. Two sets of persons make rival claims. The authority must decide that dispute before proceeding further. The Act does not deal with the law relating to devolution of title. It does not in any way modify the law of succession applicable to the landholder. The question of inheritance, therefore, has to be answered by the law applicable to the deceased landholder. It is, therefore, not possible to exclude the personal law altogether. The amended provisions in the Act excluding the personal law are limited in their application and I propose to deal with them a little later.
35. Since the question of ownership cannot be avoided, it follows that the fact that the entire land in the present case belongs to Aftab Ahmad and that his son Faiyaz Ahmad has no interest therein cannot be ignored. How does the respondent 1 then hold that the latter is entitled to a unit? The effect of the order in Annexure 3 is to transfer the surplus land, from the father to the son. This is not permissible. The only transfer which the Act envisages is from the landholder to the State in lieu of which compensation is payable. The view of the respondent I (and relied on by the learned counsel for the contesting respondents) is based upon a supposed assumption that a major son in a family governed by the Mitakshara School of Hindu Law gets such a benefit. The second issue has been framed by the learned Chief Justice in that light. Under the Hindu Law, a male member of a family governed by the Mitakshara Law (which I may, for brevity sake, call a Mitakshara family) is entitled toa share in the joint family property as a coparcener and not as a son of another member. Such a person (whom I may describe as a Mitakshara son) does not get any interest in his father's property. Their interests in the property are separate, distinct and independent of each other. Take the case of such a family which does not own ancestral agricultural property, and such a family is not a rarity in Bihar.
There are numerous well to do families possessed of ancestral business and urban properties, only and many members of such families have from their own income acquired agricultural lands. A Mitakshara son does not have any interest in the same nor can his father escape acquisition of the surplus agricultural land under the Act on this ground. The illustration can be multiplied; as for example, a father in a Mitakshara family succeeding to his maternal grandfather in absence of nearer heirs and thus acquiring agricultural land. Again, his son although joint with him will not get any interest therein. It is, therefore, not correct to presume that a major son of a Mitakashara family is entitled to a separate unit. What he gets is in his own independent right as a coparcener and not as a son. On the basis of his own title, a non-Mitakshara adult son also gets a separate unit. And in both cases, the father is not allowed any further area (sic) the title bolder is son gets it. Naturally, a major son governed by Dayabhaga School of Hindu Law, who does not himself own land, does not gel a separate unit and I may observe that there have been quite a good number of such families in Bihar. The conclusion arrived at by the respondent 1 in Annexure 3 if accepted would also lead to unjustified discrimination against the major sons in non-Muslim families, which is of course not intended by the Act.
36. Examining the question from another angle, I may refer to the argument of Mr. Hussain, the learned counsel for the respondents in answer to a query by the Bench. During the course of the argument, I asked him as to what can be the legal basis of allowing an additional unit for a major son, not himself, owning any land, of a Muslim landholder. Mr. Hussain did not suggest that the major son himself should get the surplus land as has been observed in Annexure 3. He urged that the father i.e. the landholder should be left with the additional area so that in case of his death the same may be available to his son, I am not in a position to persuade myself to accept this line of reasoning. In the first instance, the right of a son to inherit the fathers' property does not materialise before the death of the father. In his lifetime he just has a spes successions.
Again, why the daughters are then to be excluded? They inherit along with their brothers though taking smaller shares. Proceeding legally further, why to stop at sons and daughter. Take the case of childless landholder leaving behind a large number of heirs on the date of the acquisition of the surplus lands. As many separate Units then will have to be left from acquisition as the number of his heirs. So far the minor sons are concerned, their position is different on account of the express provisions of the Act quoted and referred to in the judgment of the learned Chief Justice. The artificial definition of "family" in the Act includes the minor children and while considering the case of the major sons, we must always keep in mind the fact that he is not included in the "family". He is as much a stranger to the "family" as his major sister or any other heirs and successor-in-interest in his and his sisters' absence.
37. If we assume the answers to the problems posed in the above paragraph in favour of the major son, major daughter and other major heirs, we will have to concede similar benefits to me Christian landholders, the landholders governed by Mitakshara and Dayabhag Schools of Hindu Law and of other categories. In a Dayabhaga family the landholder will have to be allowed additional Units for his major sons and major daughters and also for his grand children through a predeceased son of daughter. I do not think this was intended by the legislature while introducing the amendments in the Act. The amended provisions were included in the Act with the sole purpose of lumping together the areas held by the landholder, his or her spouse and the minor children. The object of the amendment was not to bestow any additional advantage on or for an adult person not owning any land, the purpose was to enable the State to acquire larger area.
38. An examination of the provisions of the Act, as it was originally passed, would show that the Unit for the purpose of acquisition was referable to the area held by an individual landholder. The result was that every minor coparcener in a Mitakshara family was entitled to a separate Unit in his own independent right. Presumably the requirements of a minor child were not considered at par with the major members in the family and so with a view to acquire larger areas the amendments relied on by the contesting respondents were introduced in the Act. The concept of "family" defined in Section 2(ee) as the landholder was brought in by the new Section 2(g). But the expression ''family" was limited to include the spouse and minor children. The major sons were left out to form separate families with their own minor children. While interpreting the Act, it is essential to keep in mind this narrow meaning of "family" as not including the major children. The exclusion of the personal law by the Explanation II is limited to the determination of the composition of the "family" and its effect on the acquisition. As I have mentioned in para 4 above, it was not possible to exclude the personal law altogether, as that would have rendered the Act unworkable. The other amendments are all consequential and do not have any independent significance. Since the right to be maintained by a dependent family member got merged in the amended provision on making the "family" as the unit for acquisition, Sub-section (3) of Section 5 was deleted and consequential change was made in Section 5(l)(i). The Explanation to Section 5(1)(i) underlines the ownership as a condition precedent to acquisition, as has been pointed out by Mr. Justice Agrawal in para 2 of his judgment.
39. Originally Section 5(5) permitted a landholder to transfer, till the commencement of the Act or within a certain period thereafter by way of gift subject to certain restrictions, any land held by him to his children or such other person who would have inherited such land, had the landholder died intestate immediately before the commencement of the Act. This provision enured to the benefit of the heirs of all the landholders irrespective of the religion, faith or group they may belong to A Mitakshara son, who owned land smaller in area than allowed by the Act or who did not own any land at all (for such cases reference may be made to the illustrations given in para 5 above) was in the same position as the other (non-Mitakshara) sons. In 1973, several amendments were introduced in the Act in instalments. The option to transfer was opened again, but the benefit this time was confined to the non-Mitakshara landholders. The Mitakshara sons were deprived of the benefit, as in the large majority of cases in Bihar they have shares in the joint family properties. Their inherent advantage was thus neutralised. However, since the individual was continuing as the unit, a separate ceiling area had to be allowed for each minor and this considerably reduced the total area available for acquisition.
A decision was, therefore, taken to substitute individual holders by "family" including husband, wife and minor children. Accordingly, the Act was amended. While so doing the minor coparcencers, whether their fathers or grandfathers were alive or not, were not included in "family". They were left out with their spouses and minor children to form separate families. As I have said earlier, the amendment was purely for the purpose of acquisition of larger areas. Section 5(2)(i) allowing further area for additional members (exceeding five) also took into account only the minor children. None of the amended provisions (or for that matter any provision) of the Act suggests directly or indirectly to club together the land held by a major son with the land of the parents and their minor children. The family of a major son, including his wife and minor children is a separate and distinct identity from the "family" of his parents and minor brothers and the two "families" stand separately and independently of each other on the same plane. The Explanation II to the definition of "Family" in Section 2(ee) does not affect them. This has been the reason that this Court has consistently throughout treated the major Mitakshara sons as separate families with their spouses and minor children and allowed the separate' units in that capacity.
A major Mitakshara son has not taken any advantage under the amendments (including the second option to his father in 1973 of gifting any land to him) in the capacity of being a son. In many families in Bihar, three direct generations of major coparceners holding land in their individual rights exist and a male member in every such generation forms a family of his own. Similarly, three generations of adult members exist in non-Mitakshara families also and if an attempt is made to bestow upon them the same benefits which are being enjoyed by adult members in Mitakshara families by reason of their independent title separate Units will have to be granted also for the major grand sons. Many similar anomalies including those mentioned in para 6 above will arise and which cannot be resolved consistently with the provisions of the Act. On the other hand if the concept of family limited to minor sons and excluding the major sons, as is expressly indicated by Section 2(ee) is not lost sight of, no problem leading to illegal results can arise.
40. During the argument, it was also suggested at one stage that in view of the inclusive definition of raiyat in Section 2(k), the successors-in-interest are also to be included and, therefore, the major sons. I do not think, this is the meaning of the definition clause. By including successors-in-interest" such persons are meant who have already succeeded, otherwise the anomalies referred to above in para 7 above would arise.
41. If the Act is construed in the manner I am suggesting, it cannot lead to any discrimination. The land held by every major owner irrespective of the religion or faith he may belong to, and independent of the personal law applicable and the lands held by his or her spouse and minor children would be lumped together for the purpose of acquisition. The major Mitkshara son, if he does not own land in his individual right, is placed in the same position as the other major sons. The observations of the Supreme Court in Vengdasalam Pillai v. Union Territory, Pondicherry, AIR 1985 SC 571 and Nandlal v. State of Haryana, AIR 1980 SC 2097 to my mind do not adversely affect this construction, on the other hand, the second case lends some support to interpretation. In the Haryana Act, "family" has the same concept as here and means husband, wife and minor children. The ceiling area, which is mentioned in the Haryana Act as "permissible area" of a family up to five members is referred to as the "primary unit of family" and is fixed by Section 4(1). Section 4(2) states that the permissible area shall be increased by one-fifth of the permissible area of the primary unit of family for each additional member of family. Since an adult son is not a member of the family, the sub-section does not cover his case which is dealt with in Sub-section (3) thus :
(3) The permissible area shall be further increased up to the permissible area of the primary unit of a family for each separate unit.
Provided that where separate unit also owns any land, the same shall be taken into account for calculating permissible area.
The expression "separate unit" has by Section 3(q) defined to mean an adult son living with his parents. The Supreme Court made the observation as quoted in para 17 of the present judgment of the learned Chief Justice, while repelling the appellant's attack to Section 4(3) and has to be understood in that light. It is significant to note that the additional unit is allowed in Haryana on account of a major son, by virtue of the express provision in the Act to that effect. It cannot be suggested that the position could have remained the same without these provisions, for, the legislature cannot be attributed with the sin of surplusage. Can it justifiably be suggested that even in absence of such provisions in the Bihar Act, the law would be construed in the same way? Further it may also be noted that the equity arising out of such a provision in the Haryana Act has not been ignored in Bihar. As I have pointed out above, the law permitted transfer for a prescribed period and this opportunity was repeated later to the landholders not governed by Mitakshara School. The differential advantage (of affecting further transfers) allowed to the non-Mitakshara landholders in 1973 cannot be duplicated by an interpretation as suggested on behalf of the respondents in the absence of a provision in the Act similar to that in the Haryana Act. I am, therefore, of the view that a close examination of the two Acts would lead to the conclusion that the Supreme Court's decision in AIR 1980 SC 2097 (supra) helps the petitioner State's case.
42. The case of Vengdasalam Pillai v. Union Territory, Pondicherry, AIR 1985 SC 571 was in relation to the Pondicherry Land Reforms (Fixation of Ceilling of Land) Act which by Section 2(10) defined "family" similarly as including the husband, wife and minor sons and unmarried daughters. There was a partition in the family of the appellant before the "notified date" with reference to the Land Reforms Act. The stand of the appellant was that the provisions of the Act directing lumping together of the lands held by the landholder and their minor sons were not attracted in view of the prior partition. This argument was rejected and while so doing, the Supreme Court made the observations relied on by the respondents and referred to in the present judgment of the learned Chief Justice. The further observations in the judgment clearly indicate that they cannot be applied to major sons in absence of a provision similar to that in the Haryana Act. In para 15 while discussing the point, the Supreme Court made an express reference to the major sons as being not included in the definition of "familly"; considering Section 2(10) ultimately the conclusion was reached in the following terms.
The result is that the separate properties of the members constituting the statutory family are all to be treated as forming part of the holding of the family for the purpose of determination of the ceiling area. Such being the position emerging from the provisions of Section 2(10) and Section 4(1)(2) the properties held by the minor sons of the appellant individually as well as the lands separately owned by Smt. Senbagevalli, wife of the appellant by virtue of the purchase effected by her with her Sridhanam amounts were all liable to be taken into account while computing the total extent of holding of the family of the appellant.
The decision is, therefore, not helpful to the respondents.
43. For the reasons mentioned above, I hold that the landholder, whether an individual or a "family" within the meaning of the Act belonging to any religion, faith or group, cannot claim additional land for his ceiling area on the ground of a major son. The major son in a Mitakshara family gets a separate unit for himself (and his spouse and minor children) in his own independent right and not as the son of his father and major son in a non-Mitakshara family also has a similar right which he has if he owns land in his own right. I am, therefore, in agreement with the Full Bench decision of this Court in Imamul Hasan Chaudhary v. State of Bihar, 1982 BBCJ (HC) 208 : (AIR 1982 Pat 89).
Shamsul Hasan, J. (Majority view)
44. I have the privilege of perusing the judgments recorded by Hon'ble the Chief Justice and my learned brothers -- Hari Lal Agrawal and Lalit Mohan Sharma JJ. I agree entirely with Hon'ble the Chief Justice and B. P. Jha, J.
45. In accordance with the majority view, it is held.
(i) that the personal law applicable to the family is not to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, after the insertion of Clause (ee) and Explanation II thereto in Section 2 of the said Act;
(ii) that if the major sons of a family governed by the Mitakshara School of Hindu Law are entitled to a separate unit under the Act then the major sons of a family governed by the Mohammadan Law are equally entitled to the same, and
(iii) that with the deepest deference Imamul Hasan Choudhary v. State of Bihar, 1982 BBCJ (HC) 208 : (AIR 1982 Pat 89) (FB)does not lay down the law correctly and is hereby overruled.
In the light of the answers rendered above, the challenge on behalf of the State to the judgment and findings of the learned Additional Member of the Board of Revenue must fail and the writ application is hereby dismissed without, however, any order as to cost.