Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5650 OF 2010
DAULAT SINGH (D) THR. LRS. … APPELLANTS
V ERSUS
THE STATE OF RAJASTHAN & ORS. … RESPONDENTS
J U D G M E N T
AMANA
N.V. R , J.
1. The present appeal arises out of the impugned judgment dated
25.04.2008, passed by the High Court of Judicature for
Rajasthan at Jodhpur in D.B. Civil Special Appeal No. 264 of
1999 (Writ) wherein the Division Bench of the High Court
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.12.08
17:01:18 IST
Reason:
allowed the appeal preferred by the respondents and upheld the
1
order dated 02.07.1990 passed by the Board of Revenue while
setting aside the order dated 02.04.1997 of the Single Judge.
2. The facts underlying the appeal are as follows: Daulat Singh
(since deceased and now represented through his legal
representatives and who shall hereinafter for the sake of
convenience be referred to as the appellant) was owner of 254.2
Bighas of land. On 19.12.1963, he gifted away 127.1 Bighas of
land to his son, Narpat Singh. After the said transfer, the
appellant was left with 17.25 standard acres of land, which was
below the prescribed limit under the Ceiling Act.
3. Although, a proceeding was initiated under the ceiling law, the
same was dropped on 15.04.1972 by the Court of Deputy Sub
Divisional Officer, Pali, Rajasthan. While dropping the
proceedings, the Court observed that, the amendment of Section
30DD of the Rajasthan Tenancy Act, 1955 ( hereinafter “Tenancy
Act of 1955” ) was effective from 31.12.1969, and since the gift
deed was executed before the aforesaid amendment, the
aforesaid transfer was valid.
4. However, by notice dated 15.03.1982, the Revenue Ceiling
Department reopened the case of the appellant. The Revenue
2
Ceiling Department while issuing the aforesaid notice stated that
the earlier order dated 15.04.1972, passed by the Court of
Deputy SubDivisional Officer, Pali was rendered without
investigating whether the land transfers are recognizable as per
the provisions of Section 30 of the Tenancy Act of 1955. The
same being in contravention of the provisions, needs to be
reopened.
5. The Court of Additional District Collector, Pali vide order dated
28.10.1988, declared that the mutation of the land done in
favour of the son of the appellant was invalid as there was no
acceptance of the gift. It was declared therein that the appellant
was holding 11 standard acres of extra land over and above the
ceiling limit. The Collector, therefore, directed the appellant to
handover vacant possession of the aforesaid 11 standard acres
of extra land to the Tahsildar, Pali.
Aggrieved by the aforesaid order, the appellant preferred an
6.
appeal before the Board of Revenue. Vide order dated
02.07.1990, the Board of Revenue, modified the earlier order
dated 28.10.1988, and upon recalculation held that the
3
appellant is holding 4.5 standard acres of land in excess of the
ceiling limit.
7. Aggrieved, the appellant preferred a Writ Petition under Article
227 of the Constitution of India, 1950 before the High Court.
Vide order dated 02.04.1997, the learned Single Judge of the
High Court allowed the writ petition preferred by the appellant.
The Court held that the case was beyond the purview of Section
6 of The Rajasthan Imposition of Ceiling on Agricultural
Holdings Act, 1973 ( hereinafter “Ceiling Act of 1973” ) because
the land was transferred by way of gift before 26.09.1970. It was
further held that the aforesaid transfer of land, by the appellant
in favour of his son by virtue of a registered gift deed, being
bona fide , was valid in the eyes of law. The learned Single Judge,
therefore held that there is no surplus land which is available
with the appellant which can be resumed.
8. Thereafter, the respondents preferred an appeal against the above
order before the Division Bench, which allowed the appeal
holding that the gift deed was invalid as the son of the appellant
was unaware about the same. The Division Bench vide
impugned judgment dated 25.04.2008, held that the learned
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Single Judge passed the judgment in ignorance of the provisions
of Section 30C and 30D of the Tenancy Act of 1955. Therefore,
the Division Bench of the High Court set aside the order passed
by the Single Judge Bench for being untenable and upheld the
order passed by the Board of Revenue.
9. Aggrieved, the appellant has preferred the present appeal by way
of Special Leave Petition before this Court.
10. The counsel on behalf of the appellant argued that the transfer of
land was effectuated way back in 1963. The Division Bench
clearly erred in not recognizing the transfer of 17.25 acres in
favor of the appellant's son Narpat Singh, who was a major at
the time the gift deed was executed, during his lifetime, as per
the requirements of Section 122 of the Transfer of Property Act,
1882. There was an implied acceptance because this is a case of
transfer between father and son. On the basis of facts of this
case, it is proved that the son was living separately with his
family. Moreover, such a transfer does not violate the provisions
of Section 30C and Section 30D of the Tenancy Act of 1955.
Lastly, the counsel also pleaded that the notice given for
reopening of the ceiling case was beyond the period of limitation.
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11. On the other hand, the counsel on behalf of the Respondents
argued that the Division Bench rightly upheld the order passed
by the Board of Revenue which was passed after detailed
assessment of the facts and appropriate reliance upon Section
30C and 30D of the Tenancy Act of 1955. The respondents
submitted that the findings of facts could not be interfered with
in a writ proceeding. The respondents also stated that, issue of
limitation was never argued by the appellant in the Courts
below. Be that as it may, the notice was issued within the
limitation period.
12. Having heard the learned counsel, three important issues arise
for our consideration:
i. Whether reopening of the case was beyond the period
of limitation?
ii. Whether the registered gift deed executed by the
appellant is valid in the eyes of law?
iii. Whether the judgment of learned Single Judge is in
ignorance of the provisions of Sec 30C and 30D of the
Tenancy Act of 1955?
SSUE NO
I .1
13. Section 15 of the Ceiling Act of 1973 confers upon the State
Government the power to reopen the cases, if it is satisfied that the
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earlier order was in contravention with the provisions of the Act and is
prejudicial to the State interest. The aforesaid direction to reopen
cases must be preceded by a showcause notice served upon the person
concerned. However, the proviso clause states that no notice can be
issued after the expiry of five years from the date of the final order
th
sought to be reopened or after the expiry of 30 June 1979, whichever
is later.
14. Therefore, the provision mandates that, after the expiry of five
years from the date of final order sought to be reopened, or after the
th
expiry of 30 June 1979, whichever is later, no notice for reopening of
such cases can be issued. Therefore, the relevant dates for
determination of the issue of limitation is the date of order sought to be
reopened and the date of issuance of showcause notice under Section
15 of the Ceiling Act of 1973.
15. During the course of the hearing and on a query raised by the
Bench, the respondents have brought to our notice the xerox copy of the
Notice dated 20.11.1976 issued by Deputy Government Secretary,
Revenue (Billing), Rajasthan.
16, It ought to be noted that, the aforesaid notice was sent to
the appellant on 20.11.1976, that is within five years of the earlier
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order dated 15.04.1972. Further, the notice also satisfied the
requirements as provided under Section 15 of the Ceiling Act of
1973, and hence was valid in the eyes of law. The case was, thus,
reopened within the time period stipulated under Section 15 of
the Ceiling Act of 1973. Therefore, issue no.1 is answered in favour
of the respondentState.
I SSUE NO .2
The High Court, while passing the impugned order, held
17.
the registered gift deed dated 19.12.1963 to be invalid on the basis
that it did not meet the requirements as provided under Section
122 of the Transfer of Property Act, 1882. The Division Bench
while upholding the observations of the Board of Revenue, further
observed that a perusal of the gift deed does not show acceptance
of gift by the donee, rather it seems that donee was even unaware
of the gift.
18. Section 122 of the Transfer of Property Act, 1882
provides that:
122. “Gift” defined . — “Gift” is the
transfer of certain existing movable or
immovable property made voluntarily and
without consideration, by one person, called
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the donor, to another, called the donee, and
accepted by or on behalf of the donee.
. — Such
Acceptance when to be made
acceptance must be made during the lifetime
of the donor and while he is still capable of
giving.
If the donee dies before acceptance, the
gift is void.
Section 123 of the Transfer of Property Act, 1882
19.
provides that:
123. Transfer how effected . —For the
purpose of making a gift of immovable
property, the transfer must be effected by a
registered instrument signed by or on behalf
of the donor, and attested by at least two
witnesses.
For the purpose of making a gift of movable
property, the transfer may be effected either
by a registered instrument signed as
aforesaid or by delivery.
Such delivery may be made in the same way
as goods sold may be delivered.
20 . Section 122 of the Transfer of Property Act, 1882
provides that for a gift to be valid, it must be gratuitous in
nature and must be made voluntarily. The said giving away
implies a complete dispossession of the ownership in the
9
property by the donor. Acceptance of a gift by the donee can
be done anytime during the lifetime of the donor.
21. Section 123 provides that for a gift of immovable property
to be valid, the transfer must be effectuated by means of a
registered instrument bearing the signature of the donor and
attested by at least two witnesses.
22. A threeJudge Bench of this Court in the case of
Naramadaben Maganlal Thakker v. Pranjivandas
Maganlal Thakker , (1997) 2 SCC 255 had held that:
6. Acceptance by or on behalf of the donee
must be made during the lifetime of the
donor and while he is still capable of giving.
7. It would thus be clear that the
execution of a registered gift deed,
acceptance of the gift and delivery of the
property, together make the gift
complete. Thereafter, the donor is
divested of his title and the donee
becomes the absolute owner of the
property.
( emphasis supplied )
23. The Division Bench of the High Court in the impugned
judgment upheld the findings of the Board of Revenue
wherein it held that there was no valid acceptance by the
donee. The Additional District Collector held that there was no
10
semblance of acceptance in the gift deed. On appeal, the
Board of Revenue held that, “ it is irrelevant that after the gift
the land remained in possession of the donee or that he got it
mutated in his name .”. The Division Bench of the High Court,
relying on the aforesaid observation, stated that there was no
valid acceptance as it seems like the donee was unaware
about the gift deed itself.
At the outset, it ought to be noted that Section 122 of the
24.
Transfer of Property Act, 1882 neither defines acceptance, nor
does it prescribe any particular mode for accepting the gift.
25. The word acceptance is defined as “ is the receipt of a
thing offered by another with an intention to retain it, as
acceptance of a gift. ” (See Ramanatha P. Aiyar: The Law
nd
Lexicon, 2 Edn., page 19 ).
26. The aforesaid fact can be ascertained from the
surrounding circumstances such as taking into possession
the property by the donee or by being in the possession of the
gift deed itself. The only requirement stipulated here is that,
the acceptance of the gift must be effectuated within the
lifetime of the donor itself.
11
Hence, being an act of receiving willingly, acceptance can
27.
be inferred by the implied conduct of the donee. The aforesaid
position has been reiterated by this Court in the case of
Asokan v. Lakshmikutty , (2007) 13 SCC 210
14. Gifts do not contemplate payment of
any consideration or compensation. It is,
however, beyond any doubt or dispute that
in order to constitute a valid gift acceptance
thereof is essential.
We must, however,
notice that the Transfer of Property Act
does not prescribe any particular mode
of acceptance. It is the circumstances
attending to the transaction which may
be relevant for determining the
question. There may be various means to
prove acceptance of a gift. The
document may be handed over to a
donee, which in a given situation may
also amount to a valid acceptance. The
fact that possession had been given to
the donee also raises a presumption of
acceptance.
( emphasis supplied )
28 . In the present case, the gift deed itself contained certain
recitals as mentioned below:
“…Out of the aforesaid land in all the
khasra's 1/2 part means 50 percent I am
giving you in gift being my younger son with
my pleasure. My elder son Shri Babu Singh
has no objection to this gift … From today
12
you are the owner of the half of the land
gifted to you and you will have possession
hereafter. You have the complete right over
the aforesaid land for cultivation from today
onward. Now you get the gifted land
mutated in your name… These lands have
not been sold or under Will or under the gift
earlier. Further I state that the aforesaid
land is free from any debt liability… The
registration of the aforesaid gift has been
done by me in my sound physical and
mental health with consent without any
undue coercion and pressure from anyone. I
have gifted the aforesaid land with my sweet
will and wish…”
These recitals clearly indicate that donor intended to part with
ownership and possession immediately after the execution of the
gift deed.
29. In order to show acceptance, the counsel for the
appellant drew our attention to the mutation records. The
Mutation entry in the Revenue Record of Gram Sedriya,
District Pali dated 28.10.1968 clearly reflects that half portion
of appellant's land was bestowed as a gift by the appellant to
his son through a registered instrument of gift dated
19.12.1963.
30. Furthermore, the statement dated 31.08.1984, rendered
by the appellantdonor before the Court of Additional District
13
Magistrate indicates that the donee was already a major at the
time of the execution of the gift deed. He further stated that
after execution of the gift deed the donee started cultivating on
the same.
The aforesaid statement of the appellantdonor is
31.
completely supported by the statement made by the donee on
15.12.1988 before the Court of Additional District Magistrate.
Therein, the donee clearly stated that, as he did not get along
with his stepmother, he started living separately and the land
was transferred to him by virtue of gift deed was under his
possession and he was cultivating the same.
32. Therefore, the abovementioned circumstances clearly
indicate that there was an acceptance of the gift by the donee
during the lifetime of the donor. Not only the gift deed in itself
contained recitals about transfer of possession, but also the
mutation records and the statements of the both the donor
and donee indicate that, there has been an acceptance of the
gift by conduct.
33. The respondents failed to bring on record any evidence to
rebut the fact that the donee was in enjoyment of the property.
14
In light of the same, the learned Single Judge Bench took a
plausible view that, it was a transfer between a father and a
son and there was a valid acceptance of the gift when the
doneeson started living separately. Lastly, it ought to be noted
that apart from the point of acceptance by the donee as held
above since the deed is registered, bears the signature of the
donor and has been attested by two witnesses, the
requirements under Section 123 of the Transfer of Property
Act, 1882 have been satisfied. In line with the aforementioned
observations, issue no.2 is answered in favour of the
appellant.
I SSUE NO .3
34. The learned Division Bench, while setting aside the
judgment of the learned Single Judge observed that the
learned Single Judge passed the order in ignorance of the
provisions of Section 30C and 30D of the Tenancy Act of 1955.
However, the counsel on behalf of the appellant has argued
that the transfer of land made by the appellant to his son does
not violate the terms of Section 30C and Section 30D as
15
contained in Chapter IIIB of the Tenancy Act of 1955 (since
repealed by the Rajasthan Imposition of Ceiling on
Agricultural Holdings Act,1973) as such a transfer satisfies the
test of Section 30DD of the Tenancy Act of 1955.
Chapter III B of the Tenancy Act of 1955, comprising of
35.
Sections 30B to 30J deals with restrictions on holding land in
excess of ceiling limit. Section 30C indicates the extent of
ceiling area. This section provides that for a family consisting
of five or less members, the ceiling area would be thirty
standard acres. When a family exceeds five members, five
acres of ceiling area shall be extended for every additional
member, however, such area cannot extend beyond sixty
standard acres.
36. Section 30D provides that all transfers, except those
which are specified under subsection (1) are not to be
recognized for determination of holding with respect to the
ceiling area. Thereafter, Section 30DD, a subsequent
amendment to the Tenancy Act of 1955 provides further
exceptions to the general bar under Section 30D.
16
37. It is pertinent for us to have a look at the relevant
Sections 30D and 30DD. The Sections read as follows:
30D. Certain transfers not to be recognised
for fixing ceiling area under Section 30C.
(1) For the purpose of determining the
ceiling area in relation to a person under
Section 30C, any voluntary transfer
effected by him on or after 2521958,
otherwise than
(i) By way of partition, or
(ii) In favour of a person who was a
landless person before the said date
and continued to be so till the date of
transfer,
of the whole or a part of his holding shall
be deemed to be a transfer calculated to
defeat the provisions of this Chapter and
shall not be recognised and taken into
consideration; and the burden of proving
whether any such transfer falls under
clause (i) or clause (ii) shall lie on the
transferor:
Provided that if by way any such
transfer as is mentioned in clause (ii) land
in excess of the ceiling area applicable to
the transferee has been transferred to him,
such transfer to the extent of such excess
shall not be recognised or taken into
consideration for the purpose of this sub
section:
17
Provided further that no such transfer
as is mentioned in clause (ii) shall also so
taken into consideration or recognised if it
has been made after 9121959.
…
30DD. Certain transfers to be recognized.
Notwithstanding anything to the contrary
contained in Section 30D, for the purpose of
determining the ceiling area in relation to a
person under Section 30C,
(i) every transfer of land not
exceeding thirty standard acres
made by a person upto the thirty
first day of December, 1969 in
favour of an agriculturist domiciled
in Rajasthan or in favour of his son
or brother intending to take to the
profession of agriculture and capable
of cultivating land personally and
who had attained the age of majority
on or before the said date; and
(ii) every transfer to the extent as
aforesaid made by a person before the
first day of June, 1970 of land
comprised in groves or farms of the
nature referred to in clauses (a), (b), (d)
and (e) of subsection (1) of Section 30
J as it stood prior to the
commencement of the Rajasthan
Tenancy (Second Amendment) Act,
1970 and acquired before the first day
of May, 1959 in favour of his son or
18
brother fulfilling the conditions
mentioned in clause (i) and who
attains the age of majority on or before
the first of the aforementioned dates,
shall also be recognized.
Explanation I The expression
"agriculturist" in this section shall
mean a person who earns his
livelihood wholly or mainly from
agriculture and cultivates land by
his own labour or by the labour of
any member of his family or along
with such labour as aforesaid with
the help of hired labour or servant
on wages payable in cash or in kind
and shall include an agricultural
labourer and a village artisan.
II. The expression "domiciled in
Rajasthan" in this section shall
mean a person who permanently
resides in Rajasthan since before
the commencement of this Act.
38. As discussed earlier, Section 30C of the Tenancy Act of
1955 provides for the ceiling limit of 30 standard acres for a
family of five members or less. The appellant admittedly was
having a family of less than five members and was originally
holding around 34.4 standard acres. Subsequently, by virtue
19
of registered gift deed dated 19.12.1963, the appellant had
transferred around 17.25 standard acres to his son.
39. Section 30D provides that any transfer, on or after
25.02.1958, other than the ones provided in subsection 1(i)
and 1(ii) shall be deemed to have been entered to defeat the
purpose of ceiling act. Such transactions were declared to be
void. The aforesaid two exceptions being transfer by partition
and transfer to a landless person.
However, Section 30DD provides further exceptions to
40.
Section 30D as it recognizes certain transfer after the cutoff
date provided under Section 30D. Section 30DD recognizes
transfers of area up to 30 standard acres made in favour of an
agriculturalist, his son or brother who are capable of doing
agriculture and also intend to take up agriculture as a
profession. However, such transfer must have been made
before 31.12.1969 and the transferee must have attained the
age of majority on or before the aforesaid date.
41. In the present case, the respondents have submitted that
the transfer is barred under Section 30D, therefore the State
has a right of resumption over the excess area of 4.5 acres as
20
per Section 30C. On the contrary, the appellant has argued
that the transfer was protected under Section 30DD.
42. Our attention is drawn again to the registered gift deed
dated 19.12.1963. The gift deed itself contains the recitals that
“…The aforesaid land which is of my
khatedari (ownership) and on
which I am
carrying out cultivation and is in my
possession. Out of the aforesaid land in all
the khasra's 1/2 part means 50 percent I
am giving you in gift being my younger son
with my pleasure.…From today you are the
owner of the half of the land gifted to you
and you will have possession hereafter. You
have the complete right over the
aforesaid land for cultivation from today
. Now you get the gifted land
onward
mutated in your name.”
(emphasis supplied)
It is, thus, apparent that the legislature has carved out
43.
two separate categories of lands, one which is includable and
other which is outside the purview of ceiling laws. Once such
a classification has been made, with their being no challenge
to its vires, it is the solemn duty of every authority to give full
effect to the same, in both letter and spirit. Although, it is
possible that there can be a voluntary transfer which would
meet the qualifications of both Sections 30D and Section
21
30DD, however, it is significant to note that Section 30DD
opens up with a nonobstante clause with overriding effect on
Section 30D, as a result of which, any land included within its
purview would be protected from the rigors of Section 30D of
the Tenancy Act of 1955. Therefore, if the appellant succeed in
its endeavor to establish that the transfer was covered under
Section 30DD of the Tenancy Act of 1955, then such
transferred land has to be exempted from computation of
confiscable land, irrespective of the fact that it falls within the
ceiling limit as prescribed under Section 30D of the Tenancy
Act of 1955.
44 . Another significant piece of evidence is the statement of
the transferorappellant dated 31.08.1984, wherein he has
stated that the transfereeson was living separately and was
cultivating the aforesaid gifted property. It is also mentioned
that the transferee is in possession of an ox and equipments
for ploughing and agriculture. The aforesaid facts have been
reiterated by the transferee as well vide his statement dated
15.12.1988, wherein he has clearly stated that, he is in
22
independent possession of the gifted property and has been
cultivating the said land.
45. The aforesaid pieces of evidence clearly indicate that due
to certain family issues, the appellant and his son were living
separately. During such separation, when the transfereeson
had already attained the age of majority, the appellantowner
of the land, who was an agriculturalist himself, transferred the
aforesaid land in favour of his son, so as to enable him to
cultivate the same. The statements of transferor and the
transferee clearly indicate that the transferee had the
equipment and skills and was sustaining himself as an
agriculturalist.
46. Lastly, it must be taken into consideration that, the
aforesaid transfer was executed way before the cutoff date
stipulated under Section 30DD i.e . 31.12.1969. Therefore, the
registered gift deed dated 19.12.1963 was a bona fide transfer
squarely covered within the ambits of Section 30DD, which
intended to protect the rights of agriculturalists. Issue no. 3,
stands answered in favour of the appellant, as the transfer is
23
not invalid as it stands protected as per the provision of
Section 30DD of the Tenancy Act of 1955.
47. In light of the aforesaid findings, the decision rendered by
the Division Bench of the High Court is liable to be set aside.
The transfer of the land being valid under Section 30DD of
the Tenancy Act of 1955, the ceiling area of the appellant falls
within the ceiling limit as provided under Section 30C.
48. There is no gainsaying that Section 6 of the Ceiling Act of
1973 also does not advance the case of the State. Firstly, the
repeal of Chapter IIIB of the Tenancy Act of 1955 through
Section 40 of the Ceiling Act of 1973 is not retrospective.
Hence, the provisions of the Ceiling Act of 1973 are not
attracted in the present case as the case was reopened and
decided under the provisions of the of Tenancy Act of 1955.
Secondly, Section 6 of the Ceiling Act of 1973 declares that
every transfer of land including by way of gift, made on or
after 26091970 and before 01011973, shall be deemed to
have been made to defeat the provisions of the Ceiling Act of
1973. In the instant case, the gift deed was executed on 19
121963, that is much before 26091970. Therefore also,
24
Section 6 of the Ceiling Act of 1973 does not affect the
transfer of land by the appellantdonor in favour of the donee
son. Thirdly, there is no finding that the gift deed in the
present case was actuated upon any extraneous
consideration. Hence, it constitutes a bona fide transfer which
are exempted from the rigors of Section 6 of the Ceiling Act of
1973.
The appeal stands allowed in the aforesaid terms.
49.
Pending applications, if any, stand disposed of.
…………………………………………J
(N.V. RAMANA)
…………………………………………J
(S. ABDUL NAZEER)
…………………………………………J
(SURYA KANT)
NEW DELHI;
DECEMBER 08, 2020.
25