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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 6006 OF 2009  

VITHALDAS JAGANNATH KHATRI (DEAD)  

THROUGH SMT. SHAKUNTALA   

ALIAS SUSHMI & ORS.     …Appellants  

Versus  

THE STATE OF MAHARASHTRA REVENUE   

AND FOREST DEPARTMENT & ORS.       …Respondents  

J U D G M E N T  

R.F. Nariman, J.  

1. This appeal has come to us owing to a difference of opinion between  

Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgment dated  

29.08.2019.    

2. The brief facts necessary to appreciate the controversy in this appeal  

are as follows: a partition deed dated 31.01.1970 (duly registered on  

1.07.1970) was executed between late Shri Vithaldas Jagannath  

Khatri and his minor son and three minor daughters. In terms of this

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document, the agricultural land of the Hindu Undivided Family (HUF)  

is sought to be divided by mentioning that parties two to five - who are  

the four children of Vithaldas - have to be provided expenses for their  

education and marriage, which will be borne out of the separate  

property allotted to each. An earlier partition deed was executed  

between Vithaldas and his father Jagannath on 20.01.1955. Separate  

provision was made in favour of the wife of Vithaldas by means of a  

gift deed of land in her favour.   

3. At this stage, it is necessary to set out certain provisions of ‘The  

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961’  

(hereinafter referred to as the “1961 Act”). Section 2(4) of the 1961 Act  

defines ‘appointed day’ as meaning the day on which the 1961 Act  

comes into force, which is 26.01.1962. Section 2(6A) defines  

‘commencement date’ as meaning the 2nd day of October, 1975.   

Section 2(11) defines ‘family’ as follows:  

“(11) "family" includes, a Hindu undivided 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 possession or residence;”  

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Section 2(11-A) defines ‘family unit’ as follows:  

“(11-A) "family unit" means a family unit as  explained in section 4;”    

4. By Section 3, no person or family unit shall, after the ‘commencement  

date’, hold land in excess of the ceiling area, as is determined in the  

manner provided. By Section 4(1), all land held by each member of a  

family unit, whether jointly or separately, shall, for the purposes of  

determining the ceiling area of the family unit, be deemed to be held  

by the family unit. The explanation defines ‘family unit’ as follows:  

“Explanation.- A "family unit" means,-  (a) a person and his spouse (or more than one  spouse) and their minor sons and minor unmarried  daughters, if any; or  (b) where any spouse is dead, the surviving spouse  or spouses, and the minor sons and minor  unmarried daughters; or  (c) where the spouses are dead, the minor sons and  minor unmarried daughters of such deceased  spouses.”  

5. Section 5 then fixes the ceiling area. Section 8 deals with land held in  

excess of the ceiling area on or after the commencement date. Section  

9 is a restriction on acquisition of land in excess of the ceiling area on  

or after the commencement date. Section 10 is important and is set  

out hereunder:

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“10. Consequences of certain transfers and  acquisitions of land.- (1) If -  (a) any person or a member of a family unit, after the  26th day of September, 1970 but before the  commencement date, transfers any land in  anticipation of or in order to avoid or defeat the  object of the Amending Act, 1972, or    (b) any land is transferred in contravention of section  8, then, in calculating the ceiling area which that  person, or as the case may be, the family unit, is  entitled to hold, the land so transferred shall be  taken into consideration, and the land exceeding the  ceiling area so calculated shall be deemed to be in  excess of the ceiling area for that holding,  notwithstanding that the land remaining with him or  with the family unit may not in fact be in excess of  the ceiling area.  

 If by reason of such transfer, the holding of a person,  or as the case may be, of the family unit is less than  the area so calculated to be in excess of the ceiling  area, then all the land of the person, or as the case  may be, the family unit shall be deemed to be  surplus land; and out of the land so transferred and  in possession of the transferee unless such land is  liable to forfeiture under the provisions of sub- section (3), land to the extent of such deficiency  shall, subject to rules made in that behalf, also be  deemed to be surplus land, notwithstanding that the  holding of the transferee may not in fact be in excess  of the ceiling area.  

 Explanation.- For the purposes of clause (a)  'transfer' has the same meaning as in section 8.    All transfers made after the 26th day of September,  1970 but before the commencement date, shall be

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deemed (unless the contrary is proved) to have  been made in anticipation of or in order to avoid or  defeat the object of the Amending Act, 1972.  

 Explanation.- For the purposes of this sub-section, a  transfer shall not be regarded as made on or before  26th September, 1970 if the document evidencing  the transfer is not registered on or before that date  or where it is registered after that date, it is not  presented for registration on or before the said date.    (2) If any land is possessed on or after the  commencement date by a person, or as the case  may be, a family unit in excess of the ceiling area or  if as a result of acquisition (by testamentary  disposition, or devolution on death, or by operation  of law) of any land on or after that date, the total area  of land held by any person, or as the case may be,  a family unit, exceeds the ceiling area, the land so in  excess shall be surplus land.    (3) Where land is acquired in wilful contravention of  section 9, then as a penalty therefore, the right, title  and interest of the person, or as the case may be,  the family unit or any member thereof in the land so  acquired or obtained shall, subject to the provisions  of Chapter IV, be forfeited, and shall vest without  any further assurance in the State Government:    Provided that, where such land is burdened with an  encumbrance, the Collector may, after holding such  inquiry as he thinks fit and after hearing the holder  and the person in whose favour the encumbrance is  made by him, direct that the right, title and interest  of the holder in some other land of the holder equal  in extent to the land acquired in wilful contravention  of section 9, shall be forfeited to Government.”  

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Section 11 states as follows:  

“11. Restriction on partition.- Where any land held  by a family is partitioned after the 26th day of  September, 1970, the partition so made shall be  deemed (unless the contrary is proved) to have  been made in anticipation of or in order to avoid or  defeat the object of the Amending Act, 1972, and  shall accordingly be ignored, and any land covered  by such partition shall, for the purposes of this Act,  be deemed to be the land held by the family; and the  extent of share of each person in the land held by  the family shall be taken into consideration for  calculating the ceiling area in accordance with the  provisions of section 3.    Explanation.- For the purposes of this section,  'partition' means any division of land by act of parties  made inter vivos, and includes also partition made  by a decree or order of a court, tribunal or authority.”  

6. Section 12 deals with the submission of returns by a person or a family  

unit. Section 13 is important and states as follows:  

“13. Failure to submit return.- (1) Where a person or  member of a family unit required by section 12 to  furnish a return,-  (a) fails without reasonable cause so to do, within  the time specified in that section, or  (b) furnishes a return which he knows, or has reason  to believe, to be false, he shall be liable to pay a  penalty which may extend in the former case to one  hundred rupees, and in the latter case to five  hundred rupees.    (2) Where the Collector has reason to believe that a

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person or a member of a family unit required by  section 12 to furnish a return has, without  reasonable cause, failed so to do, or has submitted  a return which he knows or has reason to believe to  be false, the Collector shall issue a notice calling  upon such person or member to show cause within  fifteen days of the service thereof, why the penalty  provided by sub-section (1) should not be imposed  upon him. If the Collector, on considering the reply  or other cause shown, is satisfied that the person or  member has without reasonable cause failed to  submit the return within time, or has submitted a  return which he knew or had reason to believe to be  false, he may impose the penalty provided in the last  preceding sub-section and require him to submit a  true and correct return complete in all particulars,  within a period of fifteen days from the date of the  order.    (3) If the person or member fails to comply with the  order within the time so granted by the Collector,  then as a penalty for failure to furnish a return, or a  true and correct return complete in all particulars,  the right, title and interest in the land held by him or  as the case may be, by the family unit in excess of  the ceiling area shall, subject to the provision of this  Chapter, be forfeited to the State Government and  shall thereupon vest without further assurance in  that Government.”  

Section 14(1) states as follows:  

“14. Power of Collector to hold enquiry.- (1) As soon  as may be after the expiry of the period referred to  in section 12, or the further period referred to in sub- section (2) of section 13, the Collector shall, either  suo motu whether or not a return had been filed or

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on the basis of the returns submitted to him under  either of those sections, and such record as he may  consider it necessary to refer to, hold an enquiry in  respect of every person or family unit holding land  in excess of the ceiling area, and shall, subject to  the provisions of this Chapter, determine the surplus  land held by such person or family unit.”  

Section 18 is important and is set out hereunder:  

“18. Collector to consider certain matters.- On the  day fixed for hearing under section 14, or on any  other day or days to which the inquiry is adjourned,  the Collector shall, after hearing the holder and  other persons interested and who are present and  any evidence adduced, consider the following  matters, that is to say,-    (a) what is the total area of land which was held by  the holder on the 26th day of September, 1970;    (b) whether any land transferred between the period  from the 26th day of September, 1970 and the  commencement date, or any land partitioned after  the 26th day of September, 1970, should be  considered or ignored in calculating the ceiling area  as provided by sub-section (1) of section 10 or  section 11;    (bb) whether the holder has any share in the land  held by a family or held or operated by any co- operative society or held jointly with others or held  as a partner in a firm; and the extent of such share;    (c) what is the total area of land held by the holder  on the commencement date?   

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(d) whether any transfer or partition of land is made  by the holder in contravention of section 8 or 11 and  if so, whether, the land so transferred or partitioned  should be considered or ignored in calculating the  ceiling area under the provisions of sub-section (1)  of section 10 or section 11?    (e) whether any land has been acquired or  possessed on or after the commencement date by  transfer or by partition?    (f) whether any land has been acquired on or after  the commencement date by testamentary  disposition, devolution on death or by operation of  law?    (g) what is the total area of land held at the time of  the enquiry, and what is the area of land which the  holder is entitled to hold?    (h) whether any land is held by the holder as tenant,  and if so, whether his landlord has a subsisting right  of resumption of the land for personal cultivation,  under the relevant tenancy law applicable thereto?    (i) whether any land held by the holder is to be  forfeited to Government under sub-section (3) of  section 10, or of section 13, or should be deemed to  be surplus land under any of the provisions of this  Act?    (j) whether the proposed retention of land by the  holder is in conformity with the provisions of section  16?    (k) which particular lands out of the total land held  by the holder should be delimited as surplus land?   

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(l) any other matter which, in the opinion of the  Collector, is necessary to be considered for the  purpose of calculating the ceiling area, and  delimiting any surplus land.”  

Section 21(1) and 21(3) then state:  

“21. Collector to make declaration regarding surplus  land etc., and consequences thereof.- (1) As soon  as may be after the Collector has considered the  matters referred to in section 18 and the questions,  if any, under sub-section (3) of section 20, he shall  make a declaration stating therein his decision on-  (a) the total area of land which the person or family  unit is entitled to hold as the ceiling area;  (b) the total area of land which is in excess of the  ceiling area;  (c) the name of the landlord to whom possession of  land is to be restored under section 19, and area  and particulars of such land;  (d) the area, description and full particulars of the  land which is delimited as surplus land;  (e) the area and particulars of land out of surplus  land, in respect of which the right, title and interest  of the person or family unit holding it is to be forfeited  to the State Government.    The Collector shall announce his declaration in the  presence of the holder and other persons interested  who are present at the time of such declaration.    xxx xxx xxx    (3) The declaration made under this section, subject  to the decision of the Maharashtra Revenue  Tribunal in appeal under section 33, or of the State  Government in revision under subsection (2) of

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section 45, shall be final and conclusive, and shall  not be questioned in any suit or proceedings in any  court.”  

7. Appeals are provided against the Collector’s orders and awards under  

Section 33 of the 1961 Act. This again is an important provision and is  

set out hereunder:  

“33. Appeals.- (1) An appeal against an order or  award of the Collector shall lie to the Maharashtra  Revenue Tribunal in the following cases:-  (1) an order under sub-sections (2) and (3) of  section 13 not being an order under which a true  and correct return complete in all particulars is  required to be furnished;  (2) a declaration or any part thereof under section  21;  (2a) an order under section 21-A ;  (3) an award under section 25;  (4) an order refusing sanction to transfer or divide  land under section 29;  (5) an order of forfeiture under sub-section (3) of  section 29;  (6) an amendment of declaration or award under  section 37; and  (7) an order of summary eviction under section 40.    (1A) Any respondent, though he may not have  appealed from any part of the decision, order,  declaration or award, may not only support the  decision, order, declaration or award, as the case  may be, on any of the grounds decided against him,  but take cross-objection to the decision, order,  declaration or award which he could have taken by  way of an appeal:   

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Provided that, he has filed the objection in the  Maharashtra Revenue Tribunal within thirty days  from the date of service on him of notice of the day  fixed for hearing the appeal, or such further time as  the Tribunal may see fit to allow; and thereupon, the  provisions of Order 41, rule 22 of the First Schedule  to the Code of Civil Procedure, 1908, (V of 1908)  shall apply in relation to the cross-objection as they  apply under that rule.  

 (2) Every petition of appeal under sub-section (1),  shall be accompanied by a copy of the decision,  order, declaration or award, as the case maybe,  against which the appeal is made.    (3) In deciding such appeal, the Maharashtra  Revenue Tribunal shall exercise all the powers  which a Court has, and follow the same procedure  which a Court follows, in deciding appeals from the  decree or order of an original Court, under the Code  of Civil Procedure, 1908, (V of 1908).    

Section 41 bars the jurisdiction of the Civil Court as follows:  

“41. Bar of jurisdiction.- No Civil Court shall have  jurisdiction to settle, decide or deal with any  question which is by or under this Act required to be  settled, decided or dealt with by the Commissioner,  Collector, Tribunal, the officer authorised under  section 27, the Maharashtra Revenue Tribunal or  the State Government.    Explanation.- For the purpose of this section a Civil  Court shall include a Mamlatdar's Court constituted  under the Mamlatdars' Courts Act, 1906, (Bom. II of  1906).”  

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Section 44B excludes pleaders from appearance as follows:  

“44B. Pleaders etc., excluded from appearance.-  Notwithstanding anything contained in this Act or  any law for the time being in force, no pleader shall  be entitled to appear on behalf of any party in any  proceedings under this Act before the Authorized  Officer, the Tribunal, the Collector, the  Commissioner, the State Government or the  Maharashtra Revenue Tribunal:    Provided that, where a party is a minor or lunatic, his  guardian may appear, and in the case of any other  person under disability, his authorised agent may  appear.  

 Explanation.- For the purposes of this section, the  expression "pleader" includes an advocate,  attorney, vakil or any other legal practitioner.”  

Section 45 provides for revision by the State Government and states:  

“45. Control.- (1) In all matters connected with this  Act, the State Government shall have the same  authority and control over the officers authorised  under Section 27, the Collectors and the  Commissioners acting under this Act, as they do in  the general and revenue administration.  (2) The State Government may, suo motu or on an  application made to it by the aggrieved person, at  any time, call for the record of any inquiry or  proceedings under sections 17 to 21 (both inclusive)  for the purpose of satisfying itself as to the legality  or propriety of any inquiry or proceedings (or any  part thereof) under these sections and may pass  such order thereon as it deems fit, after giving the  party a reasonable opportunity of being heard:   

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Provided that, nothing in this sub-section shall  entitle the State Government to call for the record of  any inquiry of proceedings of a declaration or part  thereof under section 21 in relation to any land,  unless an appeal against any such declaration or  part thereof has not been filed within the period  provided for it, and a period of three years from the  date of such declaration or part thereof has not  elapsed.    Provided further that, no order shall be passed  under this section so as to affect any land which is  already declared surplus and distributed according  to the provisions of this Act:    Provided also that the revisional jurisdiction under  this section shall be exercised only where it is  alleged that the land declared surplus is less than  the actual land which could be declared surplus.    (3) The State Government may, subject to such  restrictions and conditions as it may impose by  notification in the Official Gazette, delegate to the  Commission the power conferred on it by sub- section (2) of this section or under any other  provisions of this Act except the power to make rules  under section 46 or to make an order under section  49.”  

8. It will thus be seen that under Section 11 of the 1961 Act, where any  

land held by a family is partitioned after the cut-off date of 26.09.1970,  

the partition so made shall be deemed, unless the contrary is proved,  

to have been made in anticipation of, or in order to avoid or defeat, the  

Amending Act of 1972 and shall accordingly be ignored. There is no

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doubt that on the facts of this case that the partition deed, as well as  

its registration, is prior to the cut-off date.  

9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas was  

declared surplus. An appeal preferred against this order was  

dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On  

02.03.1982, a learned Single Judge of the Nagpur Bench of the  

Bombay High Court remitted the matter to the Surplus Land  

Determination Tribunal for fresh enquiry. On remand, a fresh order  

was passed by the Sub-Divisional Officer on 07.05.1984, where land  

admeasuring 59 acres 35 gunthas was deemed to be surplus. An  

appeal was filed against the aforesaid order by Vithaldas, his wife, his  

son and the third daughter Bela Devi under Section 33 of the 1961 Act.  

The two other minor daughters did not file any appeal, as they were  

satisfied with the view adopted by the Sub-Divisional Officer, by which  

no part of the property that devolved on them by means of the partition  

deed was declared surplus. The State filed cross-objections in the  

appeal filed by Vithaldas, challenging the exclusion of the land, inter  

alia, of the two elder daughters. However, the State did not take care  

to implead them. The appeal filed by Vithaldas et. al. was dismissed

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by the Appellate Authority, who allowed the cross objections of the  

State by its order dated 03.12.1984. The appellate authority found that  

the partition deed dated 31.01.1970, though before the cut-off date,  

was against the principles of Hindu Law, to the extent that it gave a  

share to minor daughters in ancestral land. On this basis, the partition  

deed was declared to be of no effect in law.  

10. The aforesaid appellate order was challenged by Vithaldas and his  

wife in writ proceedings before the Bombay High Court. The learned  

Single Judge dismissed the writ petition in September, 1987. An intra-

court appeal was preferred which was then dismissed by the impugned  

order dated 27.11.2007. A Special Leave Petition was filed by Vithaldas  

through his legal representatives who are the two elder daughters, as  

his legal heirs, as by now Vithaldas had expired. During the course of  

the initial hearing, this Court, by its order dated 23.11.2016, passed an  

order stating that it wished to see revenue entries in terms of Section  

148 and 149 of the Maharashtra Land Revenue Code, 1966, post-

execution of the partition deed. An additional affidavit was filed by the  

son of the late Vithaldas, stating that records from 1970-75 are in a  

mutilated condition, but that from the records made available, the two

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elder daughters were shown as occupants from 1972 to 1976 for survey  

nos. 12 and 14, through their guardian, i.e. their grandfather.  

11. When the matter was argued before a Division Bench of this Court,  

Justice Sanjay Kishan Kaul, after stating these facts, held that a limited  

fiction has been created by Section 11 of the 1961 Act, as a result of  

which, if a partition deed is prior to the cut-off date, it cannot be ignored  

under Section 11. The learned Judge also held that the State’s cross-

objections being allowed in the absence of the two elder daughters was  

fatal, as they were both necessary parties to the proceedings. The  

learned Judge then went into the unmarried daughters’ claims in HUF  

property and held:  

“38. The legal view, thus, is very clear:  a. A provision for marriage of unmarried daughters  can be made out of ancestral property.  b. Such provision can be made before, at the time,  or even after the marriage.  c. The provision is being made out of pious  obligation, though the right of women got diluted  over a period of time. However, with the amendment  to the Hindu Succession Act, in 2005, a specific right  is now conferred on women to get a share on  partition of ancestral property, including the right to  claim partition. As mentioned above this change  was brought about in Maharashtra in 1994, itself.”  

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12. The learned Judge went on to further observe that a provision for an  

unmarried daughter in a partition deed may partake the nature of a gift,  

and then concluded:  

“45. In the end, it may be noted that the only aspect  on which the debate occurred was the share of the  two elder daughters, and the right to retain the land  as their separate land, without it being adjusted with  the lands of late Vithaldas. The findings above, thus,  lead to the conclusion that the view taken by the  SDO vide order dated 7.5.1984, regarding the land  of the two elder daughters, is the correct view, and  the subsequent view by the appellate authority  faulted on more than one reason, as mentioned  aforesaid. The further imprimatur of that view by the  learned Single Judge and the Division Bench of the  High Court, thus, also cannot be sustained.    46. The impugned orders of the appellate authority,  the learned single Judge and the Division Bench  are, thus, liable to be set aside and the view taken  by the SDO, restored, qua the lands located in  Survey Nos. 12 & 14 of Babhulgaon, giving rights to  the two elder daughters, who are the appellants in  the present proceedings.”  

13. K.M. Joseph, J. differed with Justice Kaul. According to the learned  

Judge, the questions that would arise for consideration by the Court are  

as follows:  

“114. The following questions would arise for  consideration by the Court:-  1. Whether the authorities under the Act have the  power to find that the partition entered into before

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26.9.1970, was sham or collusive and thereby  ignore the same?  2. Notwithstanding the registered partition dated  31.01.1970, whether the property allotted to the  elder daughters of Shri Vithaldas is liable to be  included in the account of the family unit?  3. What is the effect of the cross-objections of the  State being allowed in the absence of elder  daughters, in the appeal before the Tribunal?”  

After setting out the provisions of the Act, the learned Judge concluded  

as follows:  

“130. Thus, it can be concluded as follows:  i. A transfer or a partition entered into before  26.09.1970, if it is not genuine and is collusive or is  a sham transaction, can, in a given case, on  materials being present, be found to be so by the  Authority under the Act;    ii. What is contemplated under Sections 10 and 11  of the Act read with Section 8, undoubtedly, is a  transfer as defined in Section 8, being a genuine  transaction. A fraudulent transaction or a sham  transaction if entered into before 26.09.1970, would  incur the wrath of Section (3), and a farce of a  partition likewise, bringing about a mock division of  property among the sharers, would also incur wrath  of Section (3) of the Act. No doubt, even if the  transaction is a sham transaction, be it a transfer or  a partition, needless to say, it would incur the wrath  of Sections 10 and 11 and it would not be necessary  to justify the invalidity with any materials if entered  into or effected after 26.09.1970.    iii. It does not mean that a transaction which is  entered into, particularly after the Act came into

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force, be it a transfer or a partition, and if there are  materials and circumstances brought out, which  persuades Authorities to hold that it is collusive or a  sham transaction and the property did not change  the hands, the property would not be liable to be  treated as held by the previous owner as on the  commencement day and included in the account  despite the purported transfer or partition.”  

14. Having concluded thus, the learned Judge then went on to declare that  

the partition deed, being unnatural, was sham; that coparcenary  

property alone is partible, and stated that the question as to whether or  

not a gift could have been validly made by Vithaldas to his elder  

daughters cannot be gone into, as no such case had been set up.   

Finally, the learned Judge held that it was of no moment that cross-

objections of the state were allowed without making the two elder  

daughters parties to the appeal before the appellate tribunal, and then  

concluded that the appeal should stand dismissed.  

15. Shri Krishnan Venugopal, learned Senior Advocate appearing on behalf  

of the Appellants largely relied upon the judgment delivered by Justice  

Sanjay Kishan Kaul and in particular, strongly relied upon Gurdit Singh  

v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. State of  

Maharashtra (1980) 2 SCC 292. On the other hand, Shri Rahul Chitnis,

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appearing for the State, largely read from Justice Joseph’s judgment  

and supported it.  

16. On a conspectus of the provisions of the 1961 Act that have been set  

out hereinabove, what becomes clear is that transfers or partitions of  

land made in anticipation of or in order to avoid or defeat the 1972  

Amending Act were to be ignored in calculating ceiling limits. This was  

so laid down by the Amending Act, 1975, which made 26.09.1970 the  

cut-off date after which such transfers became suspect. What is  

important to note is that the 1961 Act does not in any manner declare  

such transfers to be void. However, if the contrary is proved on the facts  

of a given case, i.e. that a bonafide transfer or partition was in fact  

effected after the cut-off date, the person affected would be out of the  

clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what  

is important is the expression “shall accordingly be ignored”, which  

occurs in Section 11.   

17. The scheme of the 1961 Act is that a person or a family unit has to  

submit returns by certain dates and extended dates that are mentioned  

in Sections 12 and 12-A of the 1961 Act. Section 13 is important in that  

where a person or member of a family unit either fails without

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reasonable cause to furnish a return, or furnishes a false return, he  

becomes liable to a penalty, which may extend to INR 100 or 500, as  

the case may be. A false return may be ignored by the Collector,  

requiring the person or family unit to submit a true and correct return  

complete in all particulars under Section 13(2), together with the penalty  

of INR 500. If thereafter, any such person or family unit fails to comply  

with the order within the time so granted, then, as a penalty for failure  

to furnish such return or a true and correct return complete in all  

particulars, the right, title and interest in the land held by him or the  

family unit as the case may be, in excess of the ceiling area, shall,  

subject to the provisions of Chapter 4, be forfeited to the State  

Government and vest in that Government. This Section gives a limited  

jurisdiction to the Collector to determine whether a true and correct  

return complete in all particulars has been given. Thus, a Collector  

would be well within his jurisdiction to state that a registered partition  

deed entered into after 26.09.1970 has been suppressed in the return  

furnished, as a result of which a penalty of INR 500 may be imposed,  

or excess land forfeited under Section 13(3). This jurisdiction is limited  

only to the factum of a partition deed having been suppressed from the

23    

return, and does not extend to conduct an enquiry as to whether a  

partition deed prior to 26.09.1970 is or is not a sham document. Also,  

the discretion vested in the Collector under Section 30 is at a stage  

anterior to the holding of an enquiry under Section 14, and the resultant  

declaration under Section 21.   

18. By Section 14 of the 1961 Act, the Collector is then to hold an enquiry  

either suo motu or otherwise, whether or not a return has been filed, in  

respect of every person or a family unit holding land in excess of the  

ceiling area. In so doing, Section 18 states that the Collector must  

consider several matters including, under sub-clause (b), whether any  

land transferred between 26.09.1970 and the commencement date  

(which we have seen is 02.10.1975), or any land partitioned after the  

cut-off date should either be considered or ignored in calculating the  

ceiling area as provided in Sections 10 and 11 of the 1961 Act. If Section  

18(a) to (k) are seen, the evidence adduced at the hearing to be given  

to the holder and other persons interested in the land, only goes to  

calculating the total area of the land, including land held by the holder  

between 26.09.1970 and 02.10.1975 and lands that have been  

acquired after 02.10.1975. All the details mentioned in Section 18 only

24    

speak of ignoring certain transfers or partitions between the cut-off date  

and the commencement date, and otherwise would only go to the  

calculation of lands held by persons, and then applying the drill of the  

ceiling provisions of the 1961 Act. To state that Section 18(l) is a catch-

all provision by which the Collector can determine whether a particular  

transfer or partition is a sham transaction, even if entered into before  

the cut-off date, is to go beyond the jurisdiction conferred on the  

Collector by the 1961 Act. In point of fact, even the language of Section  

18(l) makes it clear that “any other matter” is circumscribed by the  

following words: “for the purpose of calculating the ceiling area, and  

delimiting any surplus land.”   

19. This becomes even clearer when the other provisions of the 1961 Act  

are looked at. Under Section 21, the Collector has to make a declaration  

as to entitlement of a person or family unit to hold within the ceiling area  

and area of land which is in excess of the ceiling area. Further, what is  

of importance is that Section 44B excludes pleaders from appearing on  

behalf of any party in any of the proceedings under the 1961 Act. This  

is for the reason that the Collector has to determine on the facts of each  

case, based on returns filed if any, as to what areas are to be excluded,

25    

and what areas of land are to be included so far as determination of  

ceiling of a person or family unit is concerned. If it were to be held that  

the Collector could go into a trial as to whether a particular partition deed  

is or is not sham, even though it is before the cut-off date, would have  

two effects that are not warranted in law - first, it would extend the legal  

fiction that is limited to transfers and partitions made after the cut-off  

date; and second, if a period even before the cut-off date can be  

considered, it would render the cut-off date otiose, as then in all cases  

the Collector could go into whether a particular transfer or partition has  

been entered into to avoid the effect of the 1972 Amendment Act, which  

is an enquiry restricted only to transfers and partitions which take place  

on or after 26.09.1970 upto the commencement date. Also, if the  

Collector were to substitute himself as a Civil Court deciding a Civil Suit,  

it would be absolutely essential for a person or family unit to engage a  

pleader of his choice to argue all the ramifications that his case may  

have, both in fact and in law. In fact, a Civil Court alone would have the  

jurisdiction to decide a question as to whether a partition deed entered  

into before the cut-off date is or is not sham, which would involve a  

declaration that the partition be declared void. The 1961 Act therefore

26    

bars the jurisdiction of the Civil Court only insofar as transfers and  

partitions are entered into on or after 26.09.1970 and before the  

commencement date, and not to transfers and partitions that take place  

before the cut-off date.   

20. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act  

is to be seen, it is clear that appeals are provided to the Maharashtra  

Revenue Tribunal against a declaration or part thereof made under  

Section 21 of the 1961 Act. The persons who would be aggrieved by  

such declarations can only be the person or family unit whose ceiling  

area is determined or the landlord to whom possession of land is to be  

restored or the right, title and interest of the person or family unit whose  

land is to be forfeited to the State Government. If at all a cross-objection  

can be taken by a respondent under Section 33(1A), it can only be a  

person or family unit or landlord spoken of in Section 21(1) of the 1961  

Act. The State Government may perhaps file a cross-objection where it  

contends that land has wrongly not been forfeited to it.  But such is not  

the case on the facts of this appeal. Thus, the State taking a cross  

objection on the facts of this case would itself be outside Section 33(1A).  

If at all the State can be said to be aggrieved by a declaration made

27    

under Section 21, a suo moto power of revision is given to the State  

Government under Section 45, which on the facts of a particular case  

may well be exercised.  

21. This apart, once it is clear that the elder daughters are affected by virtue  

of the partition deed being held to be non est in law by the appellate  

tribunal, they ought to have been made parties to the appeal so that  

they could have made arguments in favour of the legal validity of the  

partition deed. This opportunity being denied to them, as has been  

rightly held by Justice Kaul, is also fatal to the appellate authority’s  

order, which has therefore wrongly been upheld by the learned Single  

Judge and Division Bench of the Bombay High Court.  

22. At this stage, it is important to consider some of the judgments of this  

Court under the 1961 Act. In Raghunath Laxman Wani and Ors. v.  

State of Maharashtra (1971) 3 SCC 391, a Special Leave Petition was  

entertained directly against the judgment and order passed by the  

Maharashtra Revenue Tribunal dated 02.09.1966, in proceedings held  

by the Deputy Collector under Section 14 of the 1961 Act in respect of  

lands held by the appellants therein. The Deputy Collector and the  

Tribunal concurrently found on fact that the appellants’ case of

28    

severance of status and partition of the family lands - partially in 1956,  

and then in 1960, was not acceptable. In the absence of any document  

regarding alleged severance of the family and partition, other factors  

when toted up rendered the appellants’ case of partition, first in 1956  

and then in 1960, ‘doubtful’. Given these circumstances, this Court held  

that it “would be more than reluctant to interfere and upset such a  

finding” (see paragraph 14). The Court then examined the scheme of  

the 1961 Act in paragraphs 15 to 17, and held that the ceiling area is to  

be ascertained with reference to the state of affairs existing only on the  

‘appointed date’. In this view, the Revenue Tribunal was held to be  

correct in not taking into consideration three children born in the family  

after the appointed date while determining the ceiling area to which the  

appellants’ family was entitled. This case turned largely on its facts, and  

was in any case decided before the introduction of Section 44-B to the  

1961 Act in 1976 - which forbade pleaders from arguing cases before  

the authorities under the 1961 Act.  

23. In Jugal Kishore v. State of Maharashtra (1989) Supp. (1) SCC 589,  

the question before this Court was whether in view of Section 100(2) of  

the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act,

29    

1958 (hereinafter referred to as the “Bombay Tenancy Act”), the  

Tenancy Tehsildar had exclusive jurisdiction to decide the issue of  

tenancy. In holding that the authorities under the 1961 Act would have  

to determine the land holdings of the petitioner therein, this Court held:  

“8. It is, therefore, submitted on behalf of the  petitioner that determination of the question of  tenancy by the Ceiling Authorities, was without  jurisdiction. The High Court held that in the facts of  this case it was not. The Ceiling Authority had to  determine the land holdings of the petitioner.  Incidentally, where a transfer is made by the  landholder creating a tenancy, there whether the  transfer was made bona fide or made in anticipation  to defeat the provisions of the Ceiling Act, is a  question which falls for determination squarely by  the Ceiling Authorities, to give effect to or implement  the Ceiling Act. In that adjudication it was an issue  to decide whether tenancy right was acquired by the  tenant of the petitioner. But here before the Ceiling  Authorities the adjudication was whether the  transfer to the tenant, assuming that such transfer  was there, was bona fide or made in anticipation to  defeat the provisions of the Ceiling Act. This latter  question can only be gone into in appropriate  proceedings by the Ceiling Authorities. Unless the  Acts, with the intention of implementing various  socio-economic plans, are read in such  complementary manner, the operation of the  different Acts in the same field would create  contradiction and would become impossible. It is,  therefore, necessary to take a constructive attitude  in interpreting provisions of these types and  determine the main aim of the particular Act in  question for adjudication before the court.

30    

 9. In our opinion, having regard to the Preamble to  the Act of the Maharashtra Agricultural Lands  (Ceiling on Holdings) Act, 1961, which was enacted  for giving effect to the policy of the State towards  securing the principles specified in clauses (b) and  (c) of Article 39 of our Constitution; and in particular,  but without prejudice to the generality of the  foregoing declaration, to ensure that the ownership  and control of the agricultural resources of the  community are so distributed as best to subserve  the common good and having regard to the purpose  of the Bombay Act, it was open to the Ceiling  Authorities to determine whether there was, in fact,  a genuine tenancy.”    

In this case, no question similar to the question that is before us in the  

present matter arose on the facts. It was assumed that adjudication  

before the ceiling authority would include an adjudication as to whether  

a person was made a tenant to defeat the provisions of the 1961 Act.  

Based on that assumption, the question posed and answered by the  

Court was that it would be the ceiling authorities - and not the Bombay  

Tenancy Act authorities - who would be competent to answer such  

question. This judgment also does not, in any manner, decide the  

questions that have been posed before this Court, with particular  

reference to the language of Section 11 of the 1961 Act and partitions

31    

which took place prior to a cut-off date where even a limited deeming  

fiction did not become applicable.  

24.  In State of Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326, this  

Court was concerned with the operation and reach of Section 45 of the  

1961 Act, which dealt with the revisional power of the State  

Government. On the facts of Rattanlal (supra), the Additional  

Commissioner had issued a show cause notice to the respondents  

therein, inter alia, for the reason that the respondent did not disclose  

the lands or his half share in a particular declaration, having suppressed  

the same. On hearing the respondent, and for reasons recorded in his  

order dated 09.06.1980, he remitted the case to the primary Tribunal to  

redetermine surplus land. The High Court held that once an appeal was  

preferred by the declarant under the 1961 Act, and an order made  

thereon, the Commissioner or State Government is devoid of  

jurisdiction to determine the ceiling area. The Supreme Court set aside  

the judgment of the High Court, and held that it was perfectly within the  

jurisdiction of the Additional Commissioner under Section 45 of the  

1961 Act, suo moto, to call for the records of a case and thereafter to  

decide it and pass such order thereon as it deems fit under Section

32    

45(2) of the 1961 Act. This case again is far removed from the facts of  

the present case, concerning itself with the suo moto powers  

exercisable under Section 45 of the 1961 Act.  

25. In Bhupendra Singh v. State of Maharashtra (1996) 1 SCC 277, this  

Court, while dealing with proceedings under the 1961 Act, held:  

“13. Section 18 of the Ceiling Act requires the ceiling  authority to consider certain matters enumerated  therein before issuing a declaration under Section  21 declaring the land which the person or the family  unit is entitled to hold and the surplus lands. Clause  (d) of Section 18 requires the Collector to consider,  inter alia, whether any transfer is made by the holder  in contravention of Section 8, and if so, whether the  land so transferred should be considered or ignored  in calculating the ceiling area under Section 10(1).  Clause (g) requires the authority to consider what is  the total area of land held at the time of the enquiry  and what is the area of land which the holder is  entitled to hold. Clause (j) requires the authority to  consider whether the proposed retention of land by  the holder is in conformity with the provisions of  Section 16. Clause (k) requires the authority to  consider which particular land out of the total lands  held by the holder should be delimited as surplus  land. Clause (l) requires the authority to consider  any other matter necessary to be considered for the  purpose of calculating the ceiling area and  delimiting any surplus land. If some diminution in the  area held by the person or family unit has occurred  between the relevant date and the date of the  enquiry, the above clauses require that these be  taken note of in accordance with law before any  declaration is made under Section 21. These are

33    

important matters to be kept in mind especially when  in the instant case the diminution has taken place by  thrust of another statute, i.e., the Restoration Act.  Since the said land is neither encumbered land nor  land transferred in contravention of Section 8, it is  not liable to be included in the ceiling holding of the  appellant.”  

(emphasis supplied)    

This judgment is important in that it delineates the scope of Section 18(l)  

of the 1961 Act, and confines it to ‘calculating ceiling area and de-

limiting surplus land’, albeit by the application of another statute,  

namely, the Maharashtra Restoration of Lands to Scheduled Tribes Act,  

1974.  

26. Shri Krishnan Venugopal strongly relied on the observations in Gurdit  

Singh (supra). This case dealt with Section 32-DD which was  

introduced into ‘The Pepsu Tenancy and Agricultural Lands Act, 1955’  

with retrospective effect from 1956.  This Section states as follows:  

“3. The Act was amended by Act 16 of 1962 and  Section 32-DD was introduced into the Act with  retrospective effect from October 30, 1956. That  section reads:  “32-DD. Future tenancies in surplus area and  certain judgments etc. to be ignored.— Notwithstanding anything contained in this Act, for  the purposes of determining the surplus area of any  person—  (a) a tenancy created after the commencement of

34    

the Pepsu Tenancy and Agricultural Lands (Second  Amendment) Act, 1956, in any area of land which  could have been declared as the surplus area of  such person; and  (b) any judgment, decree or order of a court or other  authority, obtained after the commencement of that  Act and having the effect of diminishing the area of  such person which could have been declared as his  surplus area shall be ignored.”  

27. This Court repelled an argument enlarging the scope of Section 32-DD,  

which was based on the object sought to be achieved by the Section in  

the following terms:  

“12. … We are aware that the object of this provision  in an Act like the one under consideration is to  prevent circumvention of its provisions by dubious  and indirect methods. But that is no reason why we  should put a construction upon the section which its  language can hardly bear. It would have been open  to the respondents to allege and prove that the  judgment was obtained collusively. But that could  have been done only after notice to Appellants 2 and  3 and after giving them an opportunity of being  heard. Therefore, to say, as the High Court has said,  that no prejudice was caused to Appellants 2 and 3  for want of an opportunity to them of being heard, is  neither here nor there. We think the High Court went  wrong in assuming that the Collector was right when  he ignored the judgment by his order dated May 20,  1963 on the ground that it had the effect of  diminishing the area of the first appellant which  could have been declared as his surplus.”  

35    

28. Likewise, as has been held by us hereinabove, it is not possible to state  

that wherever the expressions “transfer” and “partition” occur in  

Sections 8, 10 and 11 of the 1961 Act, they must be understood as  

meaning transfers and partitions which are genuine. If the word  

“genuine” is added, it would amount to straining the language of these  

provisions and giving these provisions a construction which they cannot  

possibly bear – a construction that would go against the object of giving  

the Collector a limited jurisdiction to decide whether lands fall within the  

ceiling area, and in so doing, whether transfers and partitions between  

the cut-off date and commencement date should be “ignored”. It may  

be added that the language of Section 11 also leads to the conclusion  

that even in case of a partition that is made after the cut-off date and  

before the commencement date, the power of the Collector is not to  

declare such partition sham, and therefore void, which is for a Civil  

Court to do, but is only to ignore such partition for the purpose of  

calculating ceiling area.  

29. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This  

case also dealt with 1961 Act, the cut-off date in that case being  

04.08.1959. As both the transfers in the aforesaid case were prior to

36    

04.08.1959, this Court held that the High Court was not justified in  

holding that the said transfers were either collusive or fraudulent. This  

Court held:  

“5. These sections are of no assistance to the  respondent because Section 6 takes within its fold  lands belonging to the owner, or his family as a  single unit and is not meant to cover the separate or  individual property of another member of the family  which cannot be clubbed together with land of the  concerned owner or family. The argument advanced  by the respondent appears to have found favour  with the Commissioner, but it was legally erroneous  as indicated above. In these circumstances the  most important fact to be determined was whether  or not any transfer that had been made by the  person concerned was prior to or after August 4,  1959. If the transfer was prior to August 4, 1959 then  the provisions of the Act would not apply at all. In  the instant case, both the transfers being three  years prior to the date mentioned above, the Act  would not apply to them and the Commissioner and  the High Court therefore erred in holding that the  lands transferred by Nemichand to his mother  should be included in the total area of the land  owned by the appellant.”  

30. What is of importance in this case is that in a similar fact situation, if a  

transfer took place before the cut-off date mentioned by the 1961 Act,  

the 1961 Act would not apply so as to include lands subsumed in the  

said transfers, in calculating the ceiling area.

37    

31. Regard being had to our finding that the Collector’s jurisdiction under  

the 1961 Act does not go to the extent of declaring a registered partition  

deed that is made before the cut-off date as being sham, it is  

unnecessary for us to go into any of the other findings of both the  

learned judges of this Court in relation to Hindu Law.  

32. We are, therefore, of the view that the appeal deserves to be allowed,  

and the impugned judgment of the Bombay High Court dated  

27.11.2007 set aside for the reasons given by us. The judgment of the  

Sub-Divisional Officer dated 07.05.1984 stands restored, as a result.  

       …………………..………………J.        (R. F. Nariman)              ……………..……………………J.        (S. Ravindra Bhat)            ……………..……………………J.        (V. Ramasubramanian)    New Delhi.  19th February, 2020.