Patna High Court
Ramchabila Singh And Anr. vs Ramsagar Singh And Four Ors. on 19 March, 1968
Equivalent citations: 1969(17)BLJR203
JUDGMENT R.L. Narasimham, C.J.
1. This is an application under Articles 226 and 227 of the Constitution to quash the order of the Additional Member, Board of Revenue, dated the 7th January, 1967 (Annexure F), setting aside the appellate Order of the Commissioner of Tirhut Division, dated the 21st October, 1966 (Annexure E), and the order of the Additional Collector of Muzaffarpur, dated the 20th November, 1965 (Annexure D), passed in favour of the two petitioners in an application 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), A review petition was filed before the Additional Member, Board of Revenue, for reconsideration of his order; but, by his subsequent order, dated the 7th March, 1967 (Annexure G), he rejected the prayer for review.
2. On the 18th December, 1964, one Musammat Jago Kuer, widow of Damodar Singh, executed a sale deed (Annexure A) in favour of opposite party Nos. 1 and 2, viz., Ramsagar Singh and Sheosagar Singh conveying 7 bighas 19 kathas 14 1/4 dhurs of raiyati land in village Madhopur Nijhma and other villages in the district of Muzaffarpur for a sum of Rs. 10.000/-. The Total number of plots mentioned in the sale deed would be about 148, and, in almost all the plots, it was stated that Musammat Jago Kuer's interest amounting to one-fourth share was conveyed by the document. It was further mentioned in the sale deed that her late husband. Damodar Singh, and the two petitioners, Ramchabila Singh and Ganga Singh, were descended from a common ancestor named Feku Singh, and that, though they had separated in mess and business, the property remained joint. Musammat Jago Kuer, however, asserted in the document that, by virtue of the Hindu Women's Right to Property Act, 1937, and the Hindu succession Act, 1958, she became the full owner of her husband's interest, amounting to one-fourth share.
3. On the 15th March, 1965, the two petitioners applied to the Additional Collector, Muzaffarpur, under Section 16(3) of the Act (Annexure B) for the transfer of the lands in their favour, alleging that they were co-sharers of Jago Kuer, and, as such, entitled to the right of pre-emption. The total consideration of Rs. 10,000/- and an additional sum of Rs. 1,000/- were deposited, and a copy of the treasury chalan, showing such deposit, was also filed along with the application as required by the proviso to Clause (i) of Sub-section (3) of Section 16 of the Act. Their application was resisted by the transferees, viz., Ramsagar Singh and Sheosagar Singh (opposite party Nos. 1 and 2), on two important grounds (Annexure C); (1) the petitioners ceased to be co-sharers in respect of some of the plots (about 13 in number) because they had settled the same with their wives viz., Sunaina Devi and Sudama Devi, who were in actual possession of the same; and (2) the objectors were adjacent raiyats in respect of most of the plots sold, and that, as between a co-sharer on the one hand and the raiyat of the adjacent land on the other, Section 16(3) of the Act did not recognise any preferential claim of the former.
4. The learned Additional Collector observed that the settlement of some of the plots with the wives of the petitioners was a bogus transaction, and that the petitioners continued to be the co-sharers of .all the plots. As regards the second point, he observed that, under Section 16(3) of the Act, a co-sharer of the land transferred is entitled to a preferential right over the raiyat of the adjacent land. He also observed that the objectors were not owners of adjacent lands of all the plots transferred. Hence, he allowed the application. The Commissioner, in appeal, practically endorsed the findings of the Additional Collector.
5. When the dispute was taken up in revision before the Additional Member, Board of Revenue, he was inclined to take the view that, under the provisions of the Act, the co-sharer and the adjacent raiyat were treated on an equal footing so far as the right of pre-emption was concerned, and that, consequently, the petitioners' right as co-sharers could not prevail over the objectors' right as adjacent raiyats of the transferred plots; but he did not finally decide this question, observing that the admitted position was that the two petitioners had transferred their properties in the names of their wives, and had ceased to be co-sharers of plots, and that, consequently they had no right to apply. He further pointed out that the petitioners' wives had not joined in the application, and, therefore, at was not necessary to consider whether they could be held to be co-sharers in respect of the disputed plots. A petition for review was filed before the same Additional Member on the ground that his order was based on several errors, including his assumption that it was admitted that the two petitioners had transferred their interest in all the disputed plots to their wives. The Additional Member, however, was not inclined to review his order.
6. The first contention of Mr. Ray for the petitioners is that the Additional Member committed a serious error of record in assuming that the petitioners admitted that they had transferred their interest in all the plots in favour of their wives. He rightly invited our attention to the objection petition filed by opposite party Nos. 1 and 2 (Annexure C), specially paragraphs 5 and 6, which would show that their case was that the petitioners had settled their interest in about thirteen of the plots with their wives, Sunaina Devi and Sudama Devi. It was, therefore, urged that it was un thinkable that any Counsel on behalf of the petitioners would have admitted before the Additional Member, Board of Revenue, that the petitioners' interest in all the plots had been transferred in favour of their wives.
7. There seems to be much force in this contention, though I find that, in the order of the Additional Member, Board of Revenue, it has been recorded that there was an admission that the two petitioners had transferred all their properties in the names of their wives. Even in the counter affidavit filed by opposite party Nos. 1 and 2 before this Court, it was not stated that the petitioners had transferred their interest in all the plots in favour of their wives. I may quote paragraph 4 of the counter affidavit, which is as follows :
That it is an admitted position in the case that the petitioners have transferred their share in several plots of land out of the 148 plots, subject-matter of this writ application, in favour of their wives..." In view of this admission by opposite party Nos. 1 and 2, coupled with the recital in their own objection petition (Annexure C), it can be taken as established that the Additional Member, Board of Revenue, committed an error in assuming that the petitioners had transferred their interest in all the plots in favour of their wives, and that, consequently, they had no subsisting right to apply under Section 16(3) of the Act.
8. Mr. Balbhadra Prasad Singh for the contesting opposite party, however, urged that this question was somewhat academic, inasmuch as, on the unchallenged facts, it was clear that the petitioners cannot claim any right of pre-emption. I have already referred to the fact that opposite party Nos. 1 and 2, in their objection petition (Annexure C), claimed to be adjacent raiyats in respect of most of the plots transferred. This fact has not been challenged at any stage by any of the two petitioners either before the Revenue authorities or even in their several petitions filed in this Court. It must, therefore, be taken as well established that, out of the 148 plots, which are the subject-matter of the transfer, the vendees, viz., opposite party Nos. 1 and 2, are the owners of adjacent plots in respect of a large number of them. The exact number is not necessary. The legal question for consideration is whether, when several plots are transferred by one sale deed, the co-sharer in respect of all the plots (assuming that the transfer of thirteen plots in favour of the wives of the petitioners was a bogus transaction) can claim a right of pre-emption under Section 16(3), when the transferee is himself an adjacent raiyat in respect of some of the plot. The Additional Collector and the Commissioner thought that a co-sharer gets a preferential right over the Adjacent raiyat, though the Additional Member, Board of Revenue, was inclined to take a contrary view.
9. For the purpose of answering this question, it is necessary to carefully consider the language used in Section 16(3)(i), which reads:
16(3)(i) when any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled within three months of the date of registration of the document of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed:
Provided that no such application shall be entertained by the Collector unless the purchase-money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period.
It will be noticed that the clause refers to "land transferred" and "purchase-money". The expression "land" may include several plots; but the clause contemplates only one transaction of transfer. The "purchase-money" also is intended to be one unit, A further subdivision of the land transferred, with a view to make an apportionment between a co-sharer on the one hand and an adjacent raiyat on the other, is not contemplated in that clause, nor does the clause give any indication as to the priority of right between these two persons or the method of apportioning between them. On the other hand, by saying that the application before the Collector should be "for the transfer of the land to him on the terms and conditions contained in the said deed", the Legislature has clearly indicated that, when the right of pre-emption is granted to the applicant, the transferee will be directed to transfer the land to him on the same terms and conditions as were contained in the deed of transfer. It is now well settled that the amount of consideration money in a sale deed is a term of the document-see Mohammad Taki Khan v. Jang Singh A.I.R. 1935 All. 529 and Mothey Krishnayya v. Mohammad Galen Saheb A.I.R. 1930 Mad. 659. Thus, the Legislature did not authorise the Collector to split up the total consideration money and allow a right of pre-emption to the applicant on payment of a portion of the same, in respect of some portions of the land transferred. The rules also do not contemplate any such division and apportionment.
10. It was, however, urged that, by virtue of Sections 35 and 37 of the Act, the Collector could call for Additional information and decide other disputes regarding which no specific provision is made in the Act, and that those two sections may be so construed as to impliedly authorise the Collector to make an apportionment both of the land transferred and the consideration money between a co-sharer on the one hand and the adjacent raiyat oh the other. In my opinion, such a construction of Sections 35 and 37 of the Act would not. be justified. It would be going directly against the express provision in Clause (i) of Sub-section (3) of Section 16 to the effect that, if the right of preemption is ultimately recognised, the land should be transferred to the pre-emptor on the same terms and conditions as were contained in the original deed. .
11. It is true that the mere fact that there is only one sale deed may not be decisive of the question as to whether there was one transaction of sale or two or more distinct transactions of sale, though all of them were embodied in one document. If, for instance, in the sale deed, two separate transactions of sale are mentioned, the consideration money for each of the transactions is also separately indicated, and there are other materials to hold that the sale was of a composite nature, there may be some justification for the view that the Collector may, on a fair construction of the document, allow pre-emption in respect of one transaction of sale, where other conditions are satisfied, and reject the right of pre-emption in respect of the other. Such an order will not amount to either splitting up of the land or apportionment of the purchase-money. Here, however, such a view is not possible because a careful construction of the sale deed (Annexure A) shows that there was only one transaction of sale. The widow, viz., Musammat Jago Kuer, wanted to sell away all the interest in the property which she had inherited from her deceased husband, and go away to her naihar. There was only one purchase-money for the entire lands sold. It will be impossible to apportion the I consideration money amongst 148 plots that were the subject-matter of the sale. Apportionment on a prorata basis on the basis of the area will not be permissible.
12. I must, therefore, hold that, in the present case, the land sold and the purchase-money for the purpose of Section 16(3) of the Act must be construed to mean the entire lands covered by the sale, consisting of all the 148 plots, the purchase-money being Rs. 10,000/-. The Court has no jurisdiction to make any apportionment. The Act also does not recognise the preferential right of a co-sharer over an adjacent raiyat. In this connection, my observations in Rajkishore Singh v. Bhubneshwari Singh 1968 B.L.J.R. 33 at 36 may also be seen. If the transferee happens to be the adjacent raiyat in respect of some of the plots, the co-sharer cannot claim any right of pre-emption under this section. Hence, on the facts unchallenged in this case, it must be held that the petitioners have no right under Section 16(3) of the Act.
13. Mr. Ray for the petitioners, however, urged that, inasmuch as the Act was a piece of beneficent legislation, it should not be so construed as to lead to evasion. He urged that, if the transfer is held to be one and indivisible, every transferee can evade the provisions of Section 16(3) by including in the deed of transfer a small plot of land in respect of which he is an adjacent raiyat, and thereby defeat the claim of the co-sharer. This argument is not available here because there is a clear finding of the Additional Member, Board of Revenue, that the transferees, viz. opposite party Nos. 1 and 2, have purchased the share of Jago Kuer in a bona fide manner by means of a sale deed and on payment of consideration money of Rs. 10,000/-. It was never alleged at any stage that some of the plots were deliberately included in the sale deed with the mala fide motive of defeating the provisions of Section 16(3). or else that an attempt was made to commit fraud on that section. It is, therefore, unnecessary to consider extreme cases where a deliberate attempt is made by the transferor and the transferee colluding with each other with a view to defeat the provisions of Section 16(3) of the Act. as indicated in the argument of Mr. Ray. This may be left open for future consideration.
14. For the aforesaid reasons, I must hold that this is not a fit case for this Court to quash the order of the Additional Member, Board of Revenue, though there appears to be an error in his assumption that the petitioners admitted that they had transferred their entire interest in the disputed property in favour of their wives. The application is dismissed with costs; hearing fee Rs. 200/-.
B.D. Singh, J.
15. I agree.