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CASE NO.: Appeal (civil)  4420 of 2004

PETITIONER: Ramanlal Bhailal Patel & Ors

RESPONDENT: State of Gujarat

DATE OF JUDGMENT: 05/02/2008

BENCH: R V Raveendran & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T CIVIL APPEAL NO.4420 OF 2004

R.V.RAVEENDRAN, J.

       This appeal by special leave, against the judgment dated 4.3.2003  passed by the Gujarat High Court in L.P.A. No.123 of 2000, relates to the  interpretation of the word ’person’ in the Gujarat Agricultural Lands Ceiling  Act, 1960 (’Ceiling Act’ for short).

The Facts :

2.      The five appellants along with their respective spouses purchased 172  acres and 36 guntas of agricultural land in Madheli village under four sale  deeds dated 14.11.1970 (128A, 26G), 29.4.1971 (26A, 37G), 23.6.1971  (10A, 14G) and 18.12.1971 (6A, 39G) for a total consideration of  Rs.46,300/-. Before such purchase, the ten purchasers entered into an  agreement dated 15.9.1969 proposing to purchase about 175 acres of land in  their joint names and recording the conditions subject to which they  proposed to purchase such land. The reason stated in the agreement for the  joint purchase, was to avoid each of them having to individually negotiate  and enter into separate agreements with several owners of the lands. They  agreed that one of them would be authorized to hold negotiations and go  through the procedural requirements for the purchase; and that after  purchasing the land in their names, they would divide the lands equally as  early as possible. They also agreed that there will be no collective or joint  cultivation of the lands proposed to be purchased by them.

3.      After the purchase of the lands, the ten purchasers entered into another  agreement on 30.12.1971 recording that the total sale price of Rs.46,300/-  was paid equally by all of them. The said agreement also recorded the  division of 172A, 36G of land purchased by them into ten portions among  them. Under the said agreement, they also agreed to get their names  registered in the Land Revenue Records as per the division. Subsequently,  on their applications, Mutation Entry No.1371 dated 25.2.1976 (duly  verified and approved on 19.4.1976) was made showing each co-owner as  the separate owner of the lands respectively allotted to him/her, vide Hak  Patrak (Village Form No.6), issued by the Land Revenue authorities.

The Proceedings :

                  4.      The Mamlatdar issued a notice dated 5.11.1976 under section 20 of  the Ceiling Act to the co-owners seeking particulars of the lands held by  them, to determine whether they held any surplus land. After considering  their statements, he passed an order dated 30.4.1983. He held that the total

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land held by them was 182 A. 23 Guntas; that when the lands were  converted into ’C’ Class category, the extent was 181A, 31G; that each  couple (husband and wife) were together entitled to one unit (36 acres of ’C’  category land); and that therefore the five couples (the five appellants with  their spouses) were entitled to hold five units, that is, 180 acres.  Consequently, he made a declaration under section 21 of the Ceiling Act,  that the  surplus holding was 1 acre, 31 guntas and that such surplus land (in  Sy. No.643/43 in Madheli)  shall vest in the Government.  

5.      The Deputy Collector, Dabhoi, in exercise of suo motu power of  revision under section 37 of the Ceiling Act, issued a show cause notice  dated 3.5.1984 to the appellants, being of the view that the determination of  surplus land by the Mamlatdar was contrary to the provisions of the Ceiling  Act. After  hearing, he passed an order dated 23.8.1984 holding that a group  of persons or association of persons purchasing agricultural land together,  had to be treated as ’a person’ under the Act and therefore they could jointly  hold only one unit (36 Acres) in view of the provision of section 6(1) of the  Ceiling Act. As a consequence, he determined the surplus land as 145 A,  31G and directed the Mamlatdar to obtain selection of the land to be  surrendered. The said order  was challenged by the appellants before the  Gujarat Revenue Tribunal, by invoking its revisional jurisdiction. The  Tribunal, by its judgment dated 29.12.1987, upheld the decision of the  Deputy Collector, by applying the definition of ’person’ in the Bombay  General Clauses Act, 1904, to the word ’person’ in the Ceiling Act.

6.      The appellants challenged the order of the Tribunal before the Gujarat  High Court. A learned Single Judge by order dated 30.12.1999 allowed the  petition and remanded the matter to the Revenue Tribunal to decide whether  the definition of ’person’ in the Bombay General Clauses Act, 1904 (’General  Clauses Act’ for short) could be imported into the definition of a ’person’  under the Ceiling Act. The appellants challenged the order of the learned  Single Judge in appeal. A Division Bench of the Gujarat High Court allowed  the appeal in part, by judgment dated 4.3.2003. It held that there was no  need for remand, as the question whether the definition of ’person’ included  an association of persons, was a pure question of law which can be decided  by the High Court itself. It held that definition of ’person’ in the General  Clauses Act has to be read into the definition of ’person’ in the Ceiling Act  and therefore, the decision of the Revenue Tribunal treating the ten co- owners as an association of persons, and consequently, a ’person’ for the  purpose of the Ceiling Act, entitling them to hold only one unit (36 acres),  did not suffer from any infirmity. The order of the Tribunal was thus  restored. The said order of the Division Bench of the High Court is  challenged in this appeal by special leave.  

The Contentions :                    7.      The appellants contend that the definition of ’person’ in General  Clauses Act cannot be read into the definition of ’person’ in the Ceiling Act.  They submitted that the general definition in the General Clauses Act would  apply only in the absence of a specific definition in the concerned  enactment; that as the Ceiling Act itself defined the word ’person’, there was  an legislative intention to exclude the general definition of the word ’person’  in the GC Act; and that consequently the definition of ’person’ in section  2(21) should be interpreted as referring only to a natural person (a human  being) or a joint family as defined in the Ceiling Act; and that therefore, an  association of persons or body of individuals will not be a ’person’ for the  purpose of Ceiling Act.  

7.1)    Alternatively, it is submitted that even if the word ’person’ is held to  include an association of persons or body of individuals, a co-ownership  cannot be considered as a body of individuals or association of persons and  each co-owner should be considered as a person for the purposes of the  Ceiling Act.

7.2)    The appellants contended that section 6(2) of the Ceiling Act provided

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that while calculating the holding of an individual who is a member of a  family, the land held by the spouse (as also minor sons and minor unmarried  daughters) has to be clubbed with the individual’s holding; and therefore, in  this case, the holding of wife of each appellant should be added to his  holding for the purpose of considering whether he held any surplus land. In  other words, each couple (each of the five appellants with his wife) was a  ’person’ entitled to hold one unit (36 acres); and therefore, the decision of the  Mamlatdar that the appellants were entitled to hold five units (180 acres) and  only the land in excess of five units was surplus land was in accordance with  law.  

8.      On the other hand, the respondent State contended that the definition  of ’person’ in the GC Act will have to be read into the definition of ’person’  in section 2(21) of the Ceiling Act and therefore any ’association of persons’  or ’body of individuals’ will have to be treated as a person. It is submitted  that when the five  appellants and their respective spouses joined together to  purchase 172 acres 36 guntas of land, they constituted an ’association of  persons’ or ’body of individuals’ and therefore, the purchase by the ten  purchasers was a purchase by a ’person’ and the ten co-owners as a ’person’  were entitled to hold only one unit (36 acres of ’C’ class land).

8.1)    The respondent’s next contention is based on section 8 of Ceiling Act  which provides that any transfer or partition effected between 24.1.1971 and  the date on which the Gujarat Agricultural Land Ceiling (Amendment) Act,  1972 came into force shall be deemed to have been made in anticipation in  order to defeat the object of the said Amending Act unless it is proved to the  contrary. It is contended that the partition effected among the ten co-owners  under the unregistered agreement dated 30.12.1971 should be deemed to  have been effected with the intention of defeating the object of Gujarat  Agricultural Lands Ceiling (Amendment) Act, 1972, (Amending Act for  short) having regard to the provisions of section 8 of the Ceiling Act. It is  pointed out that the only way to avoid such a presumption was to make an  application to the Collector under sub-section (2) of section 8 in the  prescribed form within the prescribed period seeking a declaration that such  partition was not made in anticipation in order to defeat the object of the  Amending Act, 1972. It is contended that as such an application was not  made to the Collector, the partition will have to be deemed as having been  made to defeat the object of the Act and consequently the partition shall  have to be ignored in computing the surplus land under the Act.

8.2)    Lastly it is submitted by the respondents that the joint purchase by ten  persons was a ruse to circumvent the bar contained in section 63 of the  Bombay Tenancy and Agricultural Lands Act, 1948 (’Tenancy Act’ for  short) which prohibits sale of agricultural land in favour of non- agriculturists. It is alleged that most of the ten purchasers were non- agriculturists who could not have purchased agricultural land, and they have  attempted to circumvent the bar contained in Tenancy Act, by nominally  joining with some agriculturists and buying land as co-owners and thereafter  effecting a partition and claiming exclusive ownership. It is contended that if  each co-owner is a distinct ’person’, then sale in favour of non-agriculturists  will not be valid, even if the purchase was jointly in the names of  agriculturists and non-agriculturist and consequently, the lands to the extent  purchased by the non-agriculturists will vest in the State Government.          9.      The appellants replied that even if the partition was ignored under  section 8 of the Ceiling Act, it would not affect the calculation of surplus  land, as each co-owner was a ’person’ and each family (husband and wife)  will be entitled to one unit. In regard to contention based on section 63 of the  Tenancy Act, it was submitted that while determining the surplus land under  the provisions of the Ceiling Act, there was no question of holding any  enquiry under section 63 of Tenancy Act. And at all events, even if the  question as to whether the purchasers were agriculturists or not, has to be  gone into, the same being a question of fact that will have to be decided by a  separate inquiry under the Tenancy Act and not in the proceedings under the  Ceiling Act.                 

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10.     On the contentions raised, the following questions arise for our  consideration :

(i)     Whether the definition of ’person’ in the Gujarat Agricultural Lands  Ceiling Act, 1960, includes a body of individuals/association of  persons ?

(ii)    Whether co-ownership, per se, is an ’association of persons/body of  individuals’ and therefore, constitutes a ’person’?  

(iii)   Whether the ten purchasers, who became co-owners of the land,  together constitute a ’body of individuals/association of persons’ and  therefore a ’person’ within the meaning of that expression in the  Ceiling Act?

(iv)    Whether the partition dated 30.12.1971 among the co-owners is  ’deemed to have been made in anticipation to defeat the object of  Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972’ under  section 8(1) of the Ceiling Act; and if so what is the effect of failure to  make an application under sub-section (2) of section 8 of the Ceiling  Act.

(v)     What would be the position if some of the co-owners were non-  agriculturists at the time of purchase of the lands? Whether the  Mamlatdar can examine this issue when considering the question of  surplus land under the Ceiling Act?

Statutory Provisions :

11.     The Ceiling Act was enacted to fix a ceiling on holding of agricultural  lands and to provide for the acquisition and disposal of surplus agricultural  land. Section 4 relates to delimitation of local areas and provides that there  shall be different classes of local areas in the state as specified in Schedule I  and the local areas falling in each such class shall be as respectively  specified in Schedule II. Section 5 deals with ceiling areas. Sub-section (1)  thereof provides that subject to the provisions of sub-sections (2) and (3), in  relation to each class of local area as specified in Schedule I, the ceiling area  with reference to each class of land shall be as specified in the said Schedule  against the respective class of local area. Madheli village, Waghodia Taluk  (Baroda District) is specified as class C area under Schedule II. It is not in  dispute that the lands in question were found to be dry crop land, and  therefore the unit ceiling area was 36 Acres under Schedule I to the Ceiling  Act.   

11.1)   Section 6 deals with ceiling on holding of land. Sub-sections (1), (2),  3(B), 3(C), and 3(D) which are relevant are extracted below :   "(1)    Notwithstanding anything contained in any law for the time being  in force or in any agreement, usage or decree or order of a Court, with  effect from the appointed day, no person shall, subject to the provisions of  sub-sections (2), (3), (3B) and 4 be entitled to hold whether as owner or  tenant or partly as owner and partly as tenant land in excess of the ceiling  area.

(2)     Where an individual, who holds land, is a member of a family, not  being a joint family which consists of the individual and his spouse (or  more than one spouse) and their minor sons and minor unmarried  daughters, irrespective of whether the family also includes any major son,  land is also separately held by such individual’s spouse or minor children,  then the lands held by the individual and the said members of the  individual’s family excluding the major sons, if any, shall be grouped  together for the purposes of the Act and the provisions of the Act shall  apply to the total land so grouped together as if such land had been held by  one person.

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xxxxxxx

(3B)    Where a family or a joint family consist of more than five  members comprising a person and other members belonging to all or any  of the following categories, namely :

(i)     minor son, (ii)    widow of a pre-deceased son, (iii)   minor son or unmarried daughter of a pre-deceased son,          where his or her mother is dead,

such family shall be entitled to hold land in excess of the ceiling area to  the extent of one fifth of the ceiling area for each member in excess of  five, so however that the total holding of the family does not exceed twice  the ceiling area; and in such a case, in relation to the holding of such  family, such area shall be deemed to be the ceiling area:

x x x x x  

(3C)   Where a family or a joint family irrespective of the number of  members includes a major son, then such major son shall be deemed to be  a separate person for the purposes of sub-section (1).

x x x x x

11.2)   Section 8 deals with transfers and partitions effected to defeat the  objects of the Ceiling Act. Sub-section (1) provides that where after  24.1.1971 but before the stipulated date (the date on which the Gujarat  Agricultural Lands Ceiling (Amendment) Act, 1972 - Gujarat Act 2 of 1974)  came into force), any person has transferred or partitioned any land held by  him, then notwithstanding  anything contained in any law for the time being  in force, such transfer or partition, shall, unless it is proved to the contrary,  be deemed to have been made in anticipation in order to defeat the object of  the Amending Act of 1972. Sub-sections (2) and (4) of section 8 read as  under: "(2)    Any person effected by the provisions of sub-section (1) may,  within the prescribed period and in the prescribed form, make an  application to the Collector for a declaration that the transfer or partition  was not made in anticipation in order to defeat the object of this Act, or as  the case may be, of the Amending Act of 1972.

x x x x x

(4)     Where the application is rejected, the transfer or, as the case may  be, the partition shall be ignored in computing under this Act the area of  surplus land, if any, held by such person."

11.3)   Section 2 contains the definitions. Clauses (16) and (21) which are  relevant are extracted below :   

"2. Definitions.-- In this Act, unless the context requires otherwise -- x x x x x (16) "Joint family" means a undivided Hindu family and in the case of  other persons a group or unit the members of which by custom or usage  are joint in estate or residence;

x x x x x

(21) "person" includes a joint family;"

 12.     Bombay General Clauses Act, 1904 also defines the word ’person’.  The said definition in section 3(35) is extracted below :

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"3. Definitions : In this Act, and in all Bombay and Gujarat Acts made  after the commencement of this Act, unless there is anything repugnant in  the subject or context, \005\005.. (35). "Person" shall include any company or  association or body of individuals, whether incorporated or not;

13.     Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948,  as applicable in Gujarat bars transfer to non-agriculturists. Sub-section (1) of  section 63 provides that save as otherwise provided in the Act, no sale shall  be valid in favour of a person - (i) who is not an agriculturist, or (ii) who  being an agriculturist cultivates lands not less than ceiling area, or (iii) who  is not an agricultural labour. The first proviso to sub-section (1) provides  that the Collector (or an officer authorized by the State Government) may  grant permission for such sale, but the second proviso to sub-section (1)  provides that no such permission shall be granted where the land is being  sold to a person who is not an agriculturist for agricultural purpose, if the  annual income of such person from other sources exceeds Rupees five  thousand.

Question (i) - who is a ’person’ ?

14.     The extent of land that could be held by the appellants depends upon  the interpretation of the word ’person’ in section 6(1) of the Ceiling Act  which provides that "no person shall \005 be entitled to hold \005 land in excess  of the ceiling area". If the ten co-owners are considered as an ’association of  persons’ or ’body of individuals’, and consequently as a ’person’, then the ten  co-owners together as a person, will be entitled to only one unit of land  which is the ceiling area per person. But if ’association of persons’ or body of  individuals is not a ’person’, or if a co-ownership is not an association of  person/body of individuals, then each co-owner or the family of each co- owner, as the case may be will be a separate ’person’ having regard to the  definition of person in section 2(21) of Ceiling Act, in which event, each  family will be entitled to hold one unit of land.  

15.     The word ’person’ is defined in the Act, but it is an inclusive  definition, that is "a person includes a joint family." Where the definition is  an inclusive definition, the use of the word ’includes’ indicates an intention  to enlarge the meaning of the word used in the Statute. Consequently, the  word must be construed as comprehending not only such things which they  signify according to their natural import, but also those things which the  interpretation clause declares that they shall include. Thus, where a  definition uses the word ’includes’, as contrasted from ’means’, the word  defined not only bears its ordinary popular and natural meaning, but in  addition also bear the extended statutory meaning (See S.K. Gupta v. K.P.  Jain - AIR 1979 SC 734 following Dilworth vs. Commissioner of Stamps -  1899 AC 99 and Jobbins vs. Middlesex County Council - 1949 (1) KB 142).

16.     The ordinary, popular and natural meaning of the word ’person’ is ’a  specific individual human being’. But in law the word ’person’ has a slightly  different connotation, and refers to any entity that is recognized by law as  having the rights and duties of a human being. Salmond defines ’person’ as  ’any being whom the law regards as capable of rights and duties’ or as ’a  being, whether human or not, of which rights and duties are the attributes  (Jurisprudence : 12th Edition Page 299]. Thus the word ’person’, in law,  unless otherwise intended, refers not only to a natural person (male or  female human being), but also any legal person (that is an entity that is  recognized by law as having or capable of having rights and duties). The  General Clauses Act  thus defines a ’person’ as including a corporation or an  association of persons or a body of individuals whether incorporated or not.  The said general legal definition is, however, either modified or restricted or  expanded in different statutes with reference to the object of the enactment  or the context in which it is used. For instance, the definition of the word  ’person’ in Income Tax Act, is very wide and includes an individual, a Hindu  Undivided Family, a company, a firm, an association of persons or body of  individuals whether incorporated or not, a local authority and every other  artificial juridical person. At the other extreme is the Citizenship Act, section

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2(f) of which reads thus : "Person does not include any company or  association or body of individuals whether incorporated or not." Similarly,  the definition under Section 2(g) of Representation of People Act 1950, is  "person" does not include a body of persons.  

17.     Both definitions of the word ’person’, in General Clauses Act and  Ceiling Act, are inclusive definitions. The inclusive definition of ’person’ in  General Clauses Act applies to all Gujarat Act unless there is anything  repugnant in the subject or the context. The inclusive definition of ’person’ in  section 2(21) of the Ceiling Act, does not indicate anything repugnant to the  definition of ’person’ in General Clauses Act, but merely adds ’joint family’  to the existing definition. Therefore the definition of person in the Ceiling  Act, would include the definition of person in section 3(35) of General  Clauses Act. The resultant position can be stated thus : The definition of  person in General Clauses Act, being an inclusive definition, would include  the ordinary, popular and general meaning and those specifically included in  the definition. The inclusive definition of ’person’ in the Ceiling Act,  in the  absence of any exclusion, would have the same meaning assigned to the  word in the General Clauses Act, and in addition, a ’joint family’ as defined.  Thus, the word ’person’ in the Ceiling Act will, unless the context otherwise  requires, refer to : (i)     a natural human being,  (ii)    any legal entity which is capable of possessing rights and  duties, including any company or association of persons  or body of individuals (whether incorporated or not); and  

(iii)   a Hindu Undivided Family or any other group or unit of  persons, the members of which by custom or usage, are  joint in estate and residence.  

        18.     We are fortified in this view by the decision of this Court in  Hasmukhalal Dahayabhai vs. State of Gujarat - 1976 (4) SCC 100, wherein  this Court had occasion to consider the definition of ’person’ in the Ceiling  Act, in a different context. It was contended in that case that in view of the  definition of ’person’ in General Clauses Act, 1897, a central enactment, that  is, ’person’ shall include any company or association or body of individuals,  whether incorporated or not, there cannot be a different definition in the  Ceiling Act, and therefore, section 6(2) of the Ceiling Act treating family as  a ’person’ was unconstitutional. It was pointed out that section 6(2) had the  effect of making a person who held land within ceiling limit, to lose part of  his/her holding, on marriage to someone who also held land within ceiling  limit. (For example, if a bachelor who was holding 35 acres of land which is  within ceiling limit, married someone who held 20 acres, they will together  lose 19 acres by reason of the fact that they formed a ’family’). This Court  negatived the challenge to the definition of ’person’. In that context this  Court observed that the term ’person’ is not, strictly speaking, defined in the  Act, and the definition merely clarified that the term  includes a joint family  and did not exclude an individual from being a person in the eye of law. This  Court observed that the term ’person’ for the purposes of Ceiling Act would  include individuals as natural persons as well as group or body of  individuals  as artificial persons, as also a joint family and a family. This  Court proceeded to explain section 6(2) thus:  

"We do not find any fixed concept of "person" anywhere. No doubt the  concept is wide so that it could be contended that it should not be  narrowed down or confined. But does Section 6(2) do that? Section 6(2)  does not either disable a husband or wife from owning or holding their  separate properties separately. It does not merge or destroy their separate  legal personalities. It requires their separate holdings to be grouped  together as though they were held by one person only for the purpose of  determining the ceiling limit for each member of a family. It may  indirectly have the effect of disabling a member of a family from holding

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land upto the prescribed ceiling limit for a person holding as an individual.  In other words, the result is that such a member of a family will have to be  content with a holding less than that of an unmarried individual. It has the  effect of making it clear that what have to be grouped together are the  separate properties of individuals belonging to families other than what are  "joint families", in law. It takes in and applies to members of families  other than undivided Hindu families. It means that married persons and  their minor children will have to be viewed as though they hold one lot  together even though they retain their separate legal personalities and  remain competent owners of their separate holdings. It does not affect  either their legal status or competence. It does reduce their individual  holdings."

Question (ii) - Whether co-owners are together a ’person’?

19.     When several persons acquire undivided shares (as contrasted from  defined portions) in a property, either equal or unequal, they become co- owners of the property; or where an owner of a property transfers a share in  the property to another, the transferee becomes a co-owner along with the  original owner. To be termed as co-owners, the right of each owner should  be co-ordinate with the other ’owners’. If the right of one is higher in degree  than that of the other, there is no co-ownership. For example, a mortgagor  and mortgagee are not co-owners. A lessor and lessee are not co-owners.  Whether the shares are equal or not, each co-owner is entitled to be in  possession of every part of the property, jointly with the other co-owners. In  Sri Ram Pasricha v. Jagannath [AIR 1976 SC 2335], this Court observed : "Jurisprudentially it is not correct to say that a co-owner of a property is  not its owner. He owns every part of the composite property along with  others and it cannot be said that he is only a part-owner or a fractional  owner of the property. The position will change only when partition takes  place. .."

This Court also relied on the following passage from Salmond’s  ’Jurisprudence’: "It is an undivided unity, which is vested at the same time in more than  one person \005 The several ownership of a part is a different thing from the  co-ownership of the whole. So soon as each of two co-owners begins to  own a part of the thing instead of the whole of it, the co-ownership has  been dissolved into sole ownership by the process known as partition. Co- ownership involves the undivided integrity of what is owned."

20.     The terms ’association of persons’ and ’body of individuals’ (which are  interchangeable) have a legal connotation and refer to an entity having rights  and duties. They are not to be understood literally. For example, if half a  dozen people are travelling in a car or a boat, or standing in a bus stop, they  may be a group of persons or a ’body of individuals’ in the literal sense. But  they are not an association of persons/body of individuals in the legal sense.  When a calamity occurs or a disaster strikes, and a band of volunteers or  doctors meet at the site and associate or co-operate with each other for  providing relief to victims, and not doing anything for their own benefit,  they may literally be an association of persons, but they are not ’an  association of persons/body of individuals’ in the legal sense. A mere  combination of persons or coming together of persons without anything  more, without any intention to have a joint venture or carry on some  common activity with a common understanding and purpose will not convert  two or more persons into a body of individuals/association of persons. An  ’association of persons/body of individuals’ is one in which two or more  persons join in a common purpose and common action to achieve some  common benefit. Where there is a combination of individuals by volition of  the parties, engaged together in some joint enterprise or venture, it is known  as ’association of persons/body of individuals’. The common object will have

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some relevance to determine whether a group or set of persons is an  association of persons or body of individuals with reference to a particular  statute. For example, when the said terms ’association or persons’ or ’body of  individuals’ occur in a section which imposes a tax on income, the  association must be one the object of which is to produce income, profit or  gain. [vide : Commissioner of Income Tax vs. Indira Balkrishna (AIR 1960  SC 1172), Mohammed Noorulla vs. Commissioner of Income Tax, Madras  (AIR 1961 SC 1043, M.V. Shanmugam vs. Commissioner of Income Tax,  Madras (AIR 1970 SC 1707)] and Meera and Company vs. Commissioner of  Income Tax - 1997 (4) SCC 677. But the object need not always be to carry  on commercial or business activity. For example, when the word ’person’  occurs in a statute relating to agriculture or ceiling on land holding, the term  ’association of persons/body of individuals’ may refer to a combination of  individuals who join together to acquire and own land as co-owners and  carry on agricultural operations as a joint enterprise.    

21.     Normally, where a group of persons have not become co-owners by  their volition with a common purpose, they cannot be considered as a  ’person’. When the children of the owner of a property succeed to his  property by testamentary succession or inherit by operation of law, they  become co-owners, but the co-ownership is not by volition of parties nor do  they have any common purpose. Each can act in regard to his/her share, on  his/her own, without any right or obligation towards the other owners. The  legal heirs though co-owners, do not automatically become an ’association of  persons/ body of individuals’. When different persons buy undivided shares  in a plot of land and engage a common developer to construct an apartment  building, with individual ownership in regard to respective apartment and  joint ownership of common areas, the co-owners of the plot of land, do not  become an ’association of persons/body of individuals’, in the absence of a  deeming provision in a statute or an agreement. Similarly, when two or more  persons merely purchase a property, under a common sale deed, without any  agreement to have a common or joint venture, they will not become an  ’association of persons/body of individuals’. Mere purchase under a common  deed without anything more, will not convert a co-ownership into a joint  enterprise.  Thus when there are ten co-owners of a property, they are ten  persons and not a ’body of individuals’ to be treated as a ’single person’. But  if the co-owners proceed further and enter into an arrangement or agreement  to have a joint enterprise or venture to produce a common result for their  benefit, then the co-owners may answer the definition of a ’person’.  

Question (iii) - Whether the ten purchasers constitute a ’person’?  

22.     We will now examine whether a group of individuals purchasing  agricultural land jointly as co-owners, not with the intention of retaining the  property in co-ownership and carrying on agricultural activities jointly, nor  with the intention of managing it as a joint venture nor with the intention of  holding it together to generate income, profit or gain, but solely with the  intention of dividing the land so purchased and hold their respective shares  separately and individually, can be considered as a ’person’ for the purposes  of the Ceiling Act. The Tribunal and the High court have proceeded on the  basis that the ten purchasers constituted an ’association of persons’ and  therefore a separate juristic person. Let us examine whether the said  conclusion is correct.  23.     Instead of buying the land (172 acres, 36 guntas) jointly under the  four sale deeds it was open to the ten persons to have bought the lands  individually, that is each of them purchasing such extent of land as he or she  wanted. If they had registered the sale deeds individually (subject to each of  them being entitled to buy agricultural land, under the land reforms laws in  force) each couple would have been entitled to hold land to the extent of one  unit. Instead of each individual or couple purchasing the land in their  respective names, if for convenience in negotiations, ten individuals buy the  land jointly, the position will be no different. It cannot be said that merely  because the sale deed is in the joint names of ten persons, they purchased the  land as "an association of persons" or as "body of individuals" with the  common intention of carrying on agricultural activities jointly or producing

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income, profit or gain or carry on some common joint venture. In fact before  purchasing the lands, the ten persons had entered into an agreement placing  on record that the object of purchasing the lands jointly was only to facilitate  negotiations and avoid duplicating the purchase procedures and not to  cultivate them jointly. There is no evidence of any joint cultivation, nor any  evidence of any intention to have a joint venture. On the other hand, after  purchase, they divided the lands and informed the land revenue authorities  and each co-owner was registered as the owner of the respective land  allotted to him/her. This is not a case where a body of individuals purchased  the land with the intention of having a continued community of interest by  way of a joint venture or as a business venture. It is therefore not possible to  treat the ten purchasers as an ’association of persons/body of individuals’  nor is it permissible to treat them as a single ’person’, thereby restricting their  entitlement to hold land to only one unit, even though there are ten  purchasers.  

24.     The Tribunal and the High Court were right in holding that the word  ’person’ in the Ceiling Act includes an ’association of persons/body of  individuals’. But they were not justified in treating the co-owners as an  ’association of persons’, or in holding that the ten co-owners will be entitled  to own only one unit. Having regard to section 6(2) of the Act, the share of  each couple (husband and wife) in the land, plus any other land individually  held by them will have to calculated to find out whether they held any land  in excess of the ceiling limit. Therefore the share of each appellant in the  lands jointly purchased, with the addition of the lands held by his spouse,  and addition of any other land held by them, will give the basis for  determining the surplus land. For example, if a husband’s share as co-owner  is 20 acres and wife’s share as co-owner is  20 acres, and their other  individual holding is another 10 acres (all of the same category in C class),  the total holding of the family will be 50 acres (20+20+10 acres) and the  surplus will be 14 acres.  

Question (iv) - What is the effect of section 8 of Ceiling Act?  

25.     The fact that the partition among the co-owners on 30.12.1971 was  between 24.1.1971 and the date on which the Gujarat Agricultural Land  Ceiling Amendment Act, 1972 came into effect, is not in dispute. Sub- section (1) of section 8 makes it clear that where any person has transferred  or partitioned any land held by him between those dates then  notwithstanding anything contained in any law, such partition shall be  deemed to have been made in anticipation in order to defeat the object of the  said Amendment Act unless it is proved to the contrary. Sub-section (2)  provides how the affected person may prove the contrary by filing an  application to the collector seeking a declaration to that effect. When such an  application is made, sub-section (3) requires the Collector to hold an inquiry  and make an order either rejecting the application or declaring that the  partition was not made in anticipation in order to defeat the object of the  Amending Act, 1972. Sub-section (4) lays down that where an application  for declaration is rejected, the transfer or partition shall be ignored in  computing the area of surplus land held by such person. The same will be  the effect where no application is made at all. It is thus clear that the  statutory presumption that a partition made between those dates was  intended to defeat the object of the Amendment Act cannot be displaced  unless an application is made under sub-section (2) and a declaration is  made by the Collector under sub-section (3). In this case, neither any  application was made under sub-section (2) nor any declaration was made  under sub-section (3). Therefore it has to be held that the partition effected  on 30.12.1971 was deemed to have been made in order to defeat the object  of the Amendment Act, 1972 and consequently, the partition will have to be  ignored while computing the surplus land.   

26.     But in this case the exclusion of the partition may not have any  significant effect. As we have held that the ten co-owners together are not to  be treated as a person, the share of the co-owner will have to be calculated

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and the lands individually held by such co-owner will have to be added to  determine his holding. Thereafter, the holdings of the person with that of his  spouse and minor sons and unmarried daughter will have to be aggregated to  determine the surplus.           Question (v) - What requires to be done?    27.     The Mamlatdar will have to decide the matter by holding an enquiry  under section 21 of the Ceiling Act keeping in view the principles laid down  in sections 6 to 8 of the Ceiling Act. Further section 63 of the Tenancy Act  also has to be kept in view while examining the claim of co-owners. If the  sale was effected jointly in the name of ten persons to enable some non- agriculturists who were barred from buying agricultural land, to buy  agricultural land by joining some  agriculturists as co-purchasers, the sale to  the extent it is in favour of non-agriculturists will not be valid and the  consequences on account of sale not being valid for violation of section 63  of Tenancy Act will follow as provided in section 84C of that Act. For  example if ten purchasers purchase hundred acres of land with equal shares,  and six of them are non-agriculturists, then the sale in respect of the six non- agriculturists (to an extent of 60 acres) will not be valid and such land  purchased by non-agriculturists may have to vest in the State Government as  provided in section 84C of the Tenancy Act. In this case no such enquiry has  been held to find out about the validity of the sale. Therefore, the matter will  have to be remitted to the Mamlatdar to hold an enquiry under sections 63  and 84C of Tenancy Act to decide whether all the purchasers were  agriculturists who were entitled to purchase agricultural land and whether  transfer in favour of all of them is valid or invalid and to make consequential  orders.  

28.     We therefore, allow this appeal, set aside the orders of the High Court  as also that of the authorities below. As a consequence, we direct the  Mamlatdar :  

(a)     to decide whether any of the ten purchasers is a non-agriculturist and  if so the extent of transfer in favour of such non-agriculturist which will be  invalid and pass consequential orders in respect of such land in accordance  with law;  

(b)     to determine whether any of the ten purchasers who are agriculturists,  holds excess land by considering their share in the lands purchased as co- owners, with other lands as provided in sections 6 to 8 of the Ceiling Act,  and pass appropriate orders in accordance with law.