B.J.SHETHNA, J. - (1.) IN the instant case, initially proceedings were initiated under the Old Ceiling Act against one Sanyam Singh which was subsequently dropped after the trial on the ground that he had no excess land as per the order date 3.7.71. Under the New Ceiling Act also proceedings were initiated against him but they were also dropped. However, lateron, in exercise of powers under Section 15(2) of the New Ceiling Act the case was reopened under the Old Ceiling Act by an order dated 10.7.87. After a period of almost 7 years the Addl. Collector by his impugned order dated 18.4.95 (Annex. 1) held that Sanyam Singh had excess land of 16.3 bighas. That order was challenged by the L.Rs. of deceased Sanyam Singh, who died during the pendency of proceedings before the Addl. Collector, by way of appeal before the Board of Revenue, which was allowed on 27.3.98 (Annex.2). The same has been challenged in this petition by the petitioner -State of Rajasthan under Article 227 of the Constitution of India.
(2.) LEARNED Counsel Shri Tatia for the petitioner vehemently submitted that the Board of Revenue committed a grave error in allowing the appeal of the respondents. He submitted that the Addl. Collector has rightly considered the national share of the wife of the assessee in the ancestral property and divided the holding into four equal shares. However, the Board of Revenue committed an error in not considering the separate share of wife. Before appreciating the arguments advanced by the learned Counsel for the petitioner few facts are required to be stated, which are as under - There was an ancestral land of 124.6 bighas. The Collector divided the same into four equal shares of 31.11/2 bighas each for the two sons of assessee namely Randheer Singh and Ranjeet Singh and 62 bighas and 3 biswas of land was considered for assessee as according to him the share of his wife is also to be counted. In short, the Collector considered 62.3 bighas of land for original assessee and added 10 bighas of land making it 72.3 bighas. Under the law the assessee was entitled to hold 56 bighas of land, therefore, he held that the assessee had excess land of 16.3 bighas. However, from the order of Board of Revenue it clearly appears that there was already a partition of holding dt. 12.5.1955 of an ancestral property. However, so far division of holding is prima facie acted upon but no mutation have effected, therefore, it cannot be regarded as a legal division of holding in accordance with law. But, so far as the factum of ancestral property is concerned it has been proved beyond doubt before the Collector and from the revenue records also shows that mutation dt. 18.11.1988 in which the land in question had been recorded in the name of Kala Singh father of orginal assessee Sanyam Singh. On the strength of aforesaid evidence the Collector accepted that 124.6 bighas was the ancestral property. However, as stated earlier, the Collector found that assessee and his two sons were entitled to have notional share. In my opinion, the Board of Revenue was fully justified in holding that under the Hindu Law female cannot be a member of HUF in the form of co -parcener. In that view of the matter, obviously, the Collector was in error in allowing four shares in the ancestral property because wife of the assessee being female cannot be allowed to take national share in the ancestral property of HUF. If the share of wife, which was wrongly considered by the Collector as one unit with her husband -original assessee, is excluded then there will be three shares. That would come to 41.1. bighas of land respectively and even if rest of 10 bighas of land is included in the share of assessee then also it would come to 51.1 bighas of land which was less than 56 bighas of land. Thus, original accessee was entitled to hold 51 bighas of land.
(3.) IN view of the above. I fully agree with the view taken by the Board of Revenue in coming to the conclusion that original assessee had no excess land.;