LAWS(BOM)-1976-7-12

S M DAKH Vs. STATE OF MAHARASHTRA

Decided On July 28, 1976
S.M.DAKH Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) The proceedings out of which this petition arises commenced on a return filed by one Sheshrao Munjabhau giving details of the land held by him for the purposes of determining surplus land under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as the "Ceiling Act"). The petitioner Sheshrao is the adopted son of Munjabhau having been adopted on 12th April, 1965. This adoption has been taken note of in the Revenue Records at the instance of the adoptive father Munjabhau. From the Ferfar register it appears that Munjabhau gave an intimation that an entry should be taken in respect of the ownership rights of the petitioner as a son of the original owner Munjabhau. The remarks column in the Ferfar register contains an entry that the registered adoption deed was perused and that the adopted son being in possession, the entry with regard to his ownership rights was being certified. Obviously acting on this entry and on the assumption that the petitioner was the exclusive owner of the field property which originally was in possession of his adoptive father, the petitioner submitted a return under section 12 of the Ceiling Act. His total holding was found to be 31 hectares 50 ares excluding Pot Kharab land of 6 acres. Before the Surplus Land Determination Tribunal a stand was taken by the petitioner that though the property stood in his name, the share of his father was liable to be excluded from the total holding. This contention was rejected on the ground that the entire property had been transferred by the father in the year 1968 and as such the father was no more entitled to any share. The petitioner and the adoptive father Munjabhau filed appeals against this order of the Surplus Land Determination Tribunal. The Revenue Tribunal dismissed both the appeals since the Revenue Tribunal took the view that the Revenue Records did not indicate that Sheshrao held lands as a member of the joint family comprising of himself and his adoptive father and the Surplus Land Determination Tribunal was, therefore, right in treating all the lands to be of the sole ownership of Sheshrao. Further, the Revenue Tribunal took the view that Sheshrao has failed to show that the lands were ancestral property of his father. The petitioner Sheshraro has filed Special Civil Application No. 1861 of 1976. Another petition, being Special Civil Application No. 3427 of 1976, has also been filed by Munjabhau.

(2.) Mr. Kanade appearing on behalf of the petitioner in both cases contends that the Revenue authorities were in error in treating the lands as solely owner by Sheshrao and, according to the learned Counsel, the lands really belonged to the joint family of Sheshrao and his father Munjabhau and the ceiling proceedings should have proceeded on the footing that the land in question was joint family land.

(3.) Now it appears to me that the assumption on which Sheshrao filed a return treating the entire property as his was clearly unjustified in law. Sheshrao was an adopted son of Munjabhau. If Munjabhau owned ancestral properties, then the effect of the adoption of Sheshrao would be that he would become a co-parcener along with his adoptive father and would from the date of his adoption acquire interest in the ancestral property to the extent of half or one-third depending on whether Munjabhaus wife was alive or not. The intimation given by Munjabhau that the ownership rights of the adopted son should be recorded did not legally have the effect of transferring the entire ownership of the property in the hands of Munjabhau in favour of his adopted son. A title cannot be divested by merely making an entry in a revenue record. In law the ownership would be that of Munjabhau and the newly adopted son would become a co-parcener. At least the adopted son would be entitled to a right of partition of his legitimate share. It must, however, be said that the claim made by Sheshrao that the fathers share should be separated though, according to Sheshrao, he himself had become the owner of the entire property was entirely misconceived. The legal position that would obtain in the case is that both Munjabhau and Sheshrao would have interest in the property if the agricultural lands in question were ancestral property in the hands of Munjabhau. The entire basis on which the proceedings were taken before the Surplus Land Determination Tribunal and the appeal before the Maharashtra Revenue Tribunal decided, was, therefore, erroneous in law.