Daulat Singh (D) Thr. Lrs. vs The State Of Rajasthan on 8 December, 2020

Supreme Court of India

Daulat Singh (D) Thr. Lrs. vs The State Of Rajasthan on 8 December, 2020

Author: N.V. Ramana

                                                                    REPORTABLE



                                IN THE SUPREME COURT OF INDIA
                                 CIVIL APPELLATE JURISDICTION
                                  CIVIL APPEAL No.5650 OF 2010




         DAULAT SINGH (D) THR. LRS.                               … APPELLANTS


                                               VERSUS


         THE STATE OF RAJASTHAN & ORS.                          … RESPONDENTS




                                          JUDGMENT

N.V. RAMANA, 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

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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

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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.

6. Aggrieved by the aforesaid order, the appellant preferred an

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

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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?

ISSUE NO.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

sought to be re­opened or after the expiry of 30 th 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

expiry of 30th 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.

ISSUE NO.2

17. The High Court, while passing the impugned order, held

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.

Acceptance when to be made. — Such
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.

19. Section 123 of the Transfer of Property Act, 1882

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

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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

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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.

24. At the outset, it ought to be noted that Section 122 of the

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

Lexicon, 2nd 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.

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27. Hence, being an act of receiving willingly, acceptance can

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

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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

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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.

31. The aforesaid statement of the appellant­donor is

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.

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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.

ISSUE 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

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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.

35. Chapter III B of the Tenancy Act of 1955, comprising of

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.

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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:

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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

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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

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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.

40. However, Section 30DD provides further exceptions to

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

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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
onward. Now you get the gifted land
mutated in your name.”
(emphasis supplied)

43. It is, thus, apparent that the legislature has carved out

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

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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

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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

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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,

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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.

49. The appeal stands allowed in the aforesaid terms.

Pending applications, if any, stand disposed of.

…………………………………………J
(N.V. RAMANA)

…………………………………………J
(S. ABDUL NAZEER)

…………………………………………J
(SURYA KANT)

NEW DELHI;

DECEMBER 08, 2020.

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