VERMA, J. - (1.) MAHARAWAL Sangram Singhji was the former Jagirdar of Samod. He died on 15. 2. 1963 leaving behind him his son Rajeshwar Singh and widow Roop Raj Laxmi.
(2.) CHAPTER III-B was introduced in the Rajasthan Tenancy Act, 1955 vide Act No. IV of 1960 published in Rajasthan Gazette dated 21. 3. 1960 which had come into force w. e. f. 15. 12. 1963 vide notification dated 26. 11. 1963. It was a socio-economic legislation. It was decided to acquire the surplus land from the person in whose hands the land was concentrated for fair distribution to the land-less agriculturists and other deserving persons with a view to remove the disparity in the holding of agricultural land and to increase the agricultural production. Section 30-E provided that the land would be surrendered from the date notified by the State Government and ultimately the date so notified was notified as 1. 4. 1966 for the purpose of declaring the land to be surplus in the hand of khatedar so entered in the Revenue Board on the date of notification. Earlier this very writ petition had been dismissed on 4. 9. 1986 (by the Hon'ble Single Judge) holding therein that Rule 17 (2) & 17 (4) of the rules, and the rights given thereunder the rules, could not survive in view of the definition of the family as defined u/s. 30-B of the Rajasthan Tenancy Act. Rules were held to be ultravires so far they include Hindu Undivided Family and no notional partition could be considered in the light of the definition given in Section 30-B itself. The judgment dated 4. 9. 1986 given by the learned Single Judge was challenged before the Division Bench in Special Appeal (Writ) No. 26/87 which had come up for hearing before Justice M. P. Singh Acting Chief Justice and Justice N. L. Tibrewal on 19. 2. 1998 (as their Lordships were ). The Division Bench was of the view that Rule 17 (2) & 17 (4) of the Rules of 1963 do not contain any provision which runs counter to the definition of `family', rather they supplement the definition so as to include the share of land of such member who is a constituent of the family. Because of the reason that the learned Single Judge Justice D. L. Mehta had not decided the case on merits and after giving due considerations and interpretation of the rules, the Division Bench had desired that the writ petition be decided on merits and that is why the writ petition has been put up for hearing before me. It was held by the Division Bench that the concept of the term `family' in Chapter III-B is not to be connected with the term `joint family' as known to be in the Hindu Law and that Chapter III-B governs all persons irrespective of their religion, creed or community and that the lands may be held by Hindus or persons belonging to other religions and all of them are equally governed by the provisions of the Ceiling Law. The concept of joint family is totally foreign to the personal laws of Muslims, Christians and other communities and, therefore, the expression `family' used in Part III cannot be equated to or connote an undivided family as known to the Hindu Law or that after partition had taken place in respect of a `hindu Family', there cannot be a `family' consisting of the husband, wife, their children and grand children being dependent on them and widowed mother of the husband so dependent on them and that the children and grand children, who are not dependent are not the members of the family for the purpose of ceiling law and thus it was, therefore, held that the circumstances that a partition taking place disrupting the joint family consisting the father and minor sons has no relevance for determining and calculating total holdings of the person. It was held that the provisions in Hindu Succession Act shall have no effect on the term `family' contained in Chapter III-B of the Old Ceiling Law under the Tenancy Act in view of sub-section (2) of Section 4 of the Hindu Succession Act. It is necessary to understand the controversy raised in the present writ petition and the facts which are as under:- The original khatedar was Maharawal Sangram Singh who died on 15. 02. 1963 leaving behind Rao Rajeshwar Singh of Samod and his wife the petitioner Smt. Roop Raj Laxmi as legal heir. The SDO Amer determined excess land from the permissible ceiling area of the land holder of Rao Rajeshwar Singh of Samod under the provisions of Chapter III-B of the Tenancy Act and after allowing certain transfers but rejecting the family partition in 1970 he had calculated the total holding as 129. 33 standard acres being the holding in the hands of the family. 30 standard acres were allowed to be retained vide order dated 30. 10. 1971 and balance 99. 33 standard acres of land was declared to be surplus being in excess to be acquired under the provisions of the Act. The order was passed on 6. 3. 1974 to take the possession as per the earlier order dated 30. 10. 1971. Number of appeals were filed against such orders totalling 8 before the Revenue Appellate Authority, Jaipur. Two appeals were filed by Rao Rajeshwar Singh the son of Sangram Singhji and two appeals each by Roop Raj Laxmi and Raghuvendra Singh and Yaduvendra Singh. The RAA confirmed the order dated 30. 10. 1971 and 6. 3. 1974 and had rejected the appeals. Certain cross objections were accepted vide the judgment dated 30. 6. 1975 which is also being impugned in this writ petition. Against the said order dated 30. 6. 1975 a revision petition was filed before the Board of Revenue which has also dismissed on 6. 8. 1976.
(3.) THE contention of the petitioner is that her late husband Maharawal Sangram Singhji was possessing the land as Khudkasht situated in villages under Tehsil Jaipur, Amer and Jamwaramgarh. It is submitted that the petitioner was entitled to the share in the property left by her husband in her individual capacity irrespective of the fact whether the land is partitioned or not. THE petitioner wants to submit that before the notified date and also even before the coming into force of the Act, she and her son, Rajeshwar Singh, had become khatedars in equal share because of death of original khatedar and, therefore, she had got her shares separated by way of family agreement registered on 1. 6. 1970 and partition was affected in 1970's. As a matter of fact since 1963, she was deemed to be considered as a co-owner along with her son in equal share on the death of her husband in accordance with Hindu Succession Act and even if no partition actually had taken place between her and her son after the death of her husband by leaps and bounds, but on coming into force of the notified date, in that situation, she was notionally entitled to her own share and was to be treated as khate-dar in her own right in individual capacity and was entitled to one unit separately. She further submits that she was never depending on her son as she owned her own pro-perty and in view of the above narration of facts, the petitioner was entitled to be trea-ted as separate unit even if the old law is applied prior to the Amendment Act of 1973. For the above-said contention, the petitioner relies on a judgment reported in V. N. Sarin vs. Ajit Kumar Poplai and another (1), wherein it was held that the partition of a property does not amount to transfer of the property by way of fresh acquisition rather it amounts to acquisition of property of specific defined portion instead of undefined portion. In alternatively, it is submitted that even if the above contention is not accepted, in that situation and in view of the Supreme Court judgment reported in Additional Commissioner vs. Kala Devi (2) if the surplus land has not been utilised, in that situation, mutation opens on the event of the death of the landlord khatedar and legal heirs of such khatedar is entitled to be treated as separate unit. ;