Patna High Court
Baidyanath Prasad Mishra And Ors. vs The State Of Bihar And Ors. on 21 May, 1980
Equivalent citations: AIR1981PAT24, AIR 1981 PATNA 24, (1981) BLJ 97 1980 BBCJ 600, 1980 BBCJ 600
JUDGMENT B.P. Jha, J.
1. In an application under Articles 226 and 227 of the Constitution of India these petitioners pray for quashing Annexures 1, 2 and 3. Annexures 1, 2 and 3 contain orders passed by the Revenue Authorities under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
2. Two land ceiling cases were initiated by the ceiling authorities -- one against Baidyanath Prasad Mishra and another against Srimati Ram Sakhi Mishrain. One Raghubans Prasad Mishra had two sons namely, Baidyanath Prasad Mishra and Vishwanath Prasad Mishra, Smt. Ramsakhi Mishrain is the widow of Vishwanath Prasad Mishra, Vishwanath Prasad Mishra died in 1967, After his death there was a partition in the joint family property in the year 1968. The total area possessed by the Joint family was 111 bighas and odd. Out of that Smt. Ramshakhi Mishrain was allotted 26 bighas and odd and the rest was allotted to the family of Baidyanath Prasad Mishra. It is on the basis of partition separate returns were filed by Baidyanath Prasad Mishra and Smt. Ramshakh Mishrain, Smt. Ramshakhi Mishrain filed return under Section 8 (1) of the Act in respect of 26 bighas and odd. The An-chal Adhikari also submitted a verification report as contained in Annexure 4, It is clear on the basis of paragraph 9 of the verification report that Smt. Ramsakhi Mishrain is in possession of 26 bighas 13 kathas 11-1/2 dhurs. It is also clear from the record that she filed a return for 26 bighas 13 kathas and odd dhurs before the ceiling authorities. The return was not accepted on the ground that the memorandum of partition was not a registered document. It is a settled law that memorandum of partition is not required to be registered under the Registration Act. Partition can be made orally also. I am, therefore, of the opinion that the authorities below have erred in law in holding that memorandum requires registration.
3. On a perusal of the record it appears that there is no material on the record to hold that she was in possession of about 49 acres and odd (55 bighas). The ceiling authorities are of the opinion that she is in possession of 49 acres and odd on the basis of notional partition. The authorities below held that after the death of Raghubans Prasad Mishra, Baidyanath Prasad Mishra would be entitled to half share and Vishwanath Prasad Mishra would be entitled to half share in the disputed property. The authorities are also of the opinion that the widow of Vishwanath Prasad Mishra after the death of Vishwanath Prasad Mishra would be entitled to half share, Notional partition is unknown in Hindu Law. In Ceiling Act notional partition is done in the case of an undivided family. There is nothing on the record to suggest that the family consisting of Baidyanath Prasad Mishra and Smt. Ramsakhi Mishrain was a joint family. On the other hand the report of the Anchal Adhikari as contained in Annexure-4 suggests that Smt. Ramsakhi Mishrain was in possession of 26 bighas and odd. This fact supports the case of the petitioners that Smt. Ramsakhi Mishrain was allotted 26 bighas and odd in a partition which was made in 1968. By issue of two different notices for submitting returns it is clear that the ceiling authorities were of opinion that there is a partition in the family. Had it been a Joint family the notice would have been issued in the name of Baidyanath Prasad Mishra only being the karta of the family. On a perusal of Annexure-3 it is clear that the names of Baidyanath Prasad Mishra and Smt. Ramsakhi Mishrain appeared on the top of the order sheet, The ceiling authority dropped the proceeding so far as Baidyanath Prasad Mishra is concerned. Whereas in the case of Smt. Ramsakhi Mishrain only one unit has been granted to her. After deducting 30 acres the balance of the land was declared as surplus land in the case of Smt. Ramsakhi Mishrain. This has been done on the basis of the notional partition. According to the ceiling authority it there would have been a partition Baidyanath Prasad Mishra would have got 55 acres and odd and Vishwanath Prasad Mishra would have got 55 acres and odd. There is no material on the record to hold that the family consists of Baidyanath Prasad Mishra and Smt. Ramsakhi Mishrain remained joint even after 1968. The State also led no evidence to the effect that the parties were still joint on the date on which the order contained in Annexure-3 was passed by the Land Reforms Deputy Collector. In absence of being a joint family the ceiling authority had no authority in law to make a notional partition to which Smt. Ramsakhi Mishrain was entitled to a share in the ancestral property. This point can be decided only by the Civil Court. If there is a dispute as to whether Smt. Ramsakhi Mishrain will be entitled to 55 bighas and odd or not, the Civil Court can decide this matter and not the ceiling authority. The ceiling authorities have not been empowered to deal with the partition matter between the parties. The Court can deal with the partition matter or the Consolidation Authority can deal with it, I am, therefore, of the opinion, on the basis of the allegation made by Smt, Ramsakhi Mishrain as well as on the basis of the report of the Anchal Adhikari as contained in Annexure-4 that Ramsakhi Mishrain was in possession of 26 bighas and odd which she got on the basis of memorandum of partition made in 1968, I therefore, in view of this error of law committed by the ceiling authorities remand the matter to the Land Reforms Deputy Collector and direct him to pass a fresh order on the basis of the materials on the record. The State shall be entitled to lead evidence to the effect that Smt. Ramsakhi Mishrain is in possession of 55 bighas and odd. If the State fails to lead any evidence or no material is brought on the record in this connection then the ceiling authority is directed to rely upon the evidence of Smt. Ramsakht Mishrain.
4. In the result the petition is allowed, Annexures 1, 2 and 3 are hereby quashed and the case is remitted to the Land Reforms Deputy Collector for fresh decision in accordance with law after issuing fresh notices to the parties, The parties shall bear their own costs.
Chaudhary Sia Saran Sinha, J.
4-A. I agree to the order proponed by my learned brother that the matter should go back to the authorities concerned on remand for fresh consideration. Keeping in view, inter alia, the observations of my learned brother that a memorandum of partition if it does not itself partition the properties and is a mere memorandum of the partition already made does not require registration.
5. Shri Angad Ojha relying on Section 6 of the Hindu Succession Act vehemently contended that the interest of Respondent No. 5 Smt, Ramsakhi Mishrain should in fact and hi law be deemed to be half in the joint family properties which undoubtedly consisted of 111 bighas and odd. Shri Ojha went so far as to contend that even if the widow of the deceased coparcener and the brother of the deceased coparcener make an amicable partition and in that partition the widow of the deceased coparcener is allotted something less, such partition should be deemed to be invalid, in view of the provision of Section 6 of the Hindu Succession Act.
6. Section 6 of the Hindu Succession Act lays down, inter alia, that when a Hindu male dies after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act. Then follows the proviso which states, inter alia, that if the deceased had left him surviving a female relative specified in class I of the schedule, which includes a widow, the interest of the deceased shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, Explanation (1) to Section 6 states, inter alia, that for the purpose of this section, interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. This explanation defines the expression "the interest of the deceased in the Mitakshara coparcenary property" and incorporates into the subject the concept of a notional partition. This notional partition is for the purpose of enabling succession to and computation of an interest which was otherwise liable to devolve by survivorship. It cannot be disputed that persons entitled to partition can partition the joint family property by agreement. The well recognised principle of Hindu Law regarding family arrangement is also there, Question is whether it was the intention behind Section 6 of the Hindu Succession Act to defeat the actual partition, if any, made between the widow of the deceased coparcener and the other coparceners or the family arrangement entered into in a bona fide manner and for the interest of the family. As the opening words of Explanation (1) to Section 6 of the Hindu Succession Act itself suggest this explanation is limited 'for the purpose of this section only'. The explanation introduces a notional partition or what may be said in other terms a partition by fiction, Such notional partition or a partition by fiction can come into play only when there is no evidence of actual partition by agreement or of any family arrangement. Circumstances may arise where the widow of a deceased coparcener in order to purchase peace may enter into an amicable partition by agreement. Circumstances may also arise where it may be the interest of the widow of deceased coparcener herself to enter into the family arrangement. Was it the intention of the Parliament to deprive the widow of these benefits, Obviously the main purpose behind the Act being the benefit to the widow, the reply would be In the negative. This being the position it is not possible to accept the contention of Shri Ojha.
7. The reasons why the widow Smt. Ramsakhi Mishrain agreed to rest content with only 26 bighas of land though notionally she was entitled to 55 bighis are stated in paragraph 21 of the application, namely, the valuation of the land allotted and the indebtedness of the family to a huge amount of Rs. 22,000/-which indebtedness remained fastened on the shoulders of Baidyanath Prasad Mishra alone. No counter affidavit has been filed on behalf of the respondents to deny the assertions made in paragraph 21 of the application. It might be argued that in case there is want of evidence, presumption can be drawn about the notional partition but such presumption goes to the background when parties lead evidence. Since the matter is going back on remand it will be open to the parties to adduce evidence and the authority concerned will be at liberty to take appropriate decision in accordance with law keeping in view the observation made above.