2000 INSC 1117
Makineni Venkata Sujatha
Vs
Land Reforms Tribunal
Special Leave Petition (Civil ) No.15354 of 2000
( M. Jagannadha Rao and K.G. Balakrishnan, JJ.)
17.10.2000
ORDER
M. Jagannadha Rao J.:- The Special Leave Petition (C) No. 15354/2000 was dismissed at the
stage of admission by an order dated 29.9.2000 after hearing learned Senior counsel for the
petitioner. It was stated in that order that reasons would follow later. The following is the reasoned
order.
The petitioner is the daughter of the 2nd respondent. The 2nd respondent hda filed a declaration
under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Act No. 1
of 1973). The notified date under the Act with respect to which the ceiling of a declarant for his
family unit had to be determined was 1.1.75. The 2nd respondent filed a declaration on 11.4.1975
(L.C.C. 2516, 2517/KDK/75). The petitioner was minor as on 1.1.75 and she was included in the
family unit of her father, the declarant. It was determined that the father's family unit had excess
land to be surrendered. At that stage, the petitioner filed an application before the Land Reforms
Tribunal in 1987 in the land ceiling proceedings pertaining to her father claiming that by virtue of
Section 2A as introduced by the A.P. Amendment Act 13/86 to the Hindu Succession Act Act
30/56) as inserted w.e.f. 5..85, the petitioner had become a coparcener being unmarried on thaat date
she got married on 26.8.85), and therefore had equal rights as a son. It was contended that her
father's holding would therefore get diminished and he need not have to surrender excess land.
Alternatively, she also relied on Section 4A introduced in Andhra Pradesh Land Ceiling on
Agricultural Holdings) Act, 173 by the Andhra Pradesh Amendment Act 10 of 1977 w.e.f. 1.1.75
claiming that she was in the position of a major son and was entitled to the share of a major son. It
wsa contended that to that extent, the father would be entitled to an extra unit and need not have to
surrender any excess land.
These two contentions were rejected by the Land Reforms Tribunal on 20.5.88, and on appeal by
the Appeate Tribunal in LRA/88 on 23.3.94. The Civil Revision Petition 1957/94 filed by her was
dismissed on 28.6.2000 by the High Court. This special leave petition was preferred against the said
order.
We shall deal initially with the contention based on section 29A introduced into the Hindu
Succession Act, 1956 by the AP Amendment of 1986. The Andhra Pradesh Land Ceiling Act (Act 1
of 1973) Act was published in Andhra Pradesh Gazette on 1.1.73. Under the Act, the determination
of the retainable area of agricultural land was to be done with reference to the land held by the
`family unit' on 1.1.75. The `family unit' was defined in section 2(f) as comprising the individual,
his or her spouse or spouses and their minor sons and their unmarried minor daughters. The
petitioner before us was a member of the family unit as she was an unmarried minor daughter of the
2nd respondent as on 1.1.75. The declare the total land held by himself and those lands held by
other members of the family unit. The excess land was computed in respect of her father's family
unit under Section 9 of the Act and the father had to surrender the same as provided in Section 10.
That excess land would vest in the State free of encumbrances under Section 11.
Under the Land Reforms Act, 1973 if the family property comprised ancestral or coparcenary
property of a Hindu, and if the declarant had no major sons, the entire extent of the said property
was liable to be shown in the declaration together with any separate property held by the declarant
or other members of the family unit. If on the other hand there was (say) a major son as on 1.1.75
entitled to a share in the ancestral or coparcenary property then the declarant was to declare his
share in the said property along with any separate property held by himself or other members of the
family unit.
Now admittedly, the petitioner before us was a minor daughter of the declarant as on 1.1.1975. She
had no duty nor a right to file a separate declaration soon after 1.1.1975. She was part of the father's
family unit. That was why her father filed the declaration.
Section 29A was introduced by the A.P. Act of 1986 into the Hindu Succession Act, 1956 w.e.f.
5.9.85. It reads as follows:
"Section 29-A: Equal Rights to daughter in Coparcenary property-
Notwithstanding anything contained in Section 6 of this Act -
(i) in a Joint Hindu family government by Mitakshara Law, the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner as the son and have the same rights
in the coparcenary property as she would have hada if she had been a son, inclusive of the right to
claim by survisorship; and shall be subject to the same liabilities and disabilities in respect thereto as
the son;
(ii) aat a partition in such a Joint Hindu Family the corparcenary property shall be so divided as to
allot to a daughter the same share as is allotable to a son;
Provided that the share which aa pre-deceased son or a pre-deceased daughter would have got at the
partition if he or she had been alive at the time of the partition shall be allotted to the surviving child
of such pre-deceased child of the pre-deceased son or of the pre-deceased dughter.
Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-
deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the
child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case
may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i)
shall be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in force, as
property capable of being disposed of by her by will or other testamentary disposition;
(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been
effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act,
1986".
Relying on the language of Section 29A, it was contended by Sri P.P. Rao, learned senior counsel
for the petitioner that under Section 29A a right by birth was conferred on a daughter as a
coparcener in Joint Hindu Family notwithstanding anything in Section 6 of the Hindu Succession
Act 1956. If on the date 5.9.85 when Section 29A was introduced, any joint family property was in
the hands of her father's Joint Family, she would get a right to a share therein and from her birth
and hence the same could not be surrendered as having been treated as excess land as on 1.1.75. The
section specifically stated that it was a right by birth. Under sub-clause (iv), nothing in clause (ii)
would apply to a daughter married prior to or to a partition which had been effected prior to the
Amendment i.e. prior to 5.9.85. Counsel contended that therefore her share in the joint family
property was to be deducted from her father's holding as on 1.1.1975 or at any rate from the excess
land.
In the order under appeal before us, the judgment of the Division Bench of the Andhra Pradesh
High Court in Utukuri Sarat Kumar vs. Authorised Officer (1988 (1) ALT 496) was relied upon.
Tha judgment, which was dealing with similar facts, negatived the contention based on Section 29A
as introdued into the Hindu Succession Act, 1956 in 1986 by the Andhra Pradesh Legislature,
seeking a deduction of the share of the daughter from the father's family unit as on1.1.75. The High
Court held that the incidence of coparcenary began from 5.9.85. It also held that section 29A could
only override Section 5 of the Hindu Succession Act, 1956 and would not override the provisions of
the Andhra Pradesh Land Reforms Act, 1973. we are in entire agreement with the view expressed in
the said judgment for the following reasons.
Now, the declarant (2nd respondent) who is the father of the petitioner, was having excess land as
on 1.1.1975. The petitioner was a minor daughter on that date and had neither a duty nor a right to
file a declaration soon after 1975, within the prescribed period. That excess of her father's unit had
to be computed under the Act and when computed, was liable to be surrendered to the state. The
delay in the determination of the excess or in surrender proceedings would not affect the right of the
State to this excess land as on 1.1.75. Section 29A of the Hindu Succession Act, 1956 (as amended)
conferred a right, on the unmarried daughter as on 5.9.85 in the Hindu Joint Family property with
the incidence of right by birth. But, so far as the determination of excess land of the father is
concerned, the relevant date is 1.1.1975 and on that day, the petitioner was a minor and the fact that
on a later date, viz. 5.9.85, the sharers in the Hindu Joint family increased and acquired a right to a
share with incidence of coparcenary right or right by birth, would not, in our opinion have any
bearing on the excess in the father `s holding as on 1.1.1975, which only remained to be computed
if his family unit was in excess, as on 1.1.75 the excess had to be surrendered to the State. The
subsequent event of the sharers increasing was not relevant. Thus, section 29A introduced w.e.f.
5.9.85 would not have the effect of taking oout any land from out of the excess land computed or to
be computed as against the father as on 1.1.1975. We are in agreement with the decision of the High
Court in Utukuri Sarnt Kumar vs. Authorised Officer [1998 (1) ALT 496].
Connected with the point under section 29A, section 18 of the AP Land Reforms Act was relied
upon. Section 18 of the Act deals with future acquisition. In our view, it has also no bearing on the
excess land held by the father as on 1.1.1975, later on acquires property and comes to hold excess
land, a declaration may have to be filed an in that event, the date 1.1.1975 would get shifted to the
date of such acquisition, for purposes of determination of the excess area. Assuming that the
daughter when she became a major and also became entitled to a right in property and was obliged
to file a declaration on or after 5.9.85, that would not alter the position as on 1.1.1975 so far as the
father's family unit as on 1.1.75 was concerned, inasmuch as she was a member of the family unit
on that date, vis-a-vis her father. The excess land of the father as on 1.1.1975 would remain the
same and would not suffer any diminution on account of the subsequent event, namely, the right
acquired by the daughter under section 29A. The reason is that section 29A does not alter the factual
position that she was a minor as on 1.1.75.
So far as the second contention based on section 4A of the Andhra Pradesh Reforms Act as
introduced in 1977 is concerned, there are no merits in the said contention also. The relevant
provisions of section 4A introduced in 1977 are as follows:
"Section 4A: Increase of ceiling area in certain cases: - Notwithstanding anything in section 4,
where an individual or an individual who is a member of a family unit, has one or more major sons
any such major son either by himself or together with other members of the family unit of which he
is a member, holds no land or holds an extent of land less than the ceiling area, then, the ceiling
area, in the case of the said individual or the family unit of which the said individual is a member
computed in accordance with section 4, shall be increased in respect of each such major son by an
extent of land equal to the ceiling area applicable to such major son or the family unit of which he is
a member, or as the case may be, by the extent of land by which the land held by such major son or
the family unit of which he is a member falls short of the ceiling area".
Section 4A was introduced into the Land Reforms Act w.e.f. 1.1.1975.
Now the effect of section 4A was that if the father-declarant had major sons on 1.1.1975 (who were
outside the family unit), the father's entitlemen got enlarge by as many family units as he had major
sons as on 1.1.1975, if they were not holding any property. In case any of the major sons had a right
in some property of their own or had a share in joint family property as on 1.1.1975, and if his
holding was less than one standard holding, then the balance of the deficiency would get added to
the permissible holding of the father. The effect of section 4a has been recently considered by this
Court in Kancherla Madhusudhana Rao vs. State of Andhra Pradesh [JT 2000 (8) SC 244]. That
being the import of section 4A, it has no bearing on the facts of the case and does not increase the
father's retainable land as on 1.1.75 beyond one unit.
Section 4A when it was sintroduced in 1977 by amendment to the Land Reforms Act w.e.f.
1.1.1975, it was applicable only to cases of major sons aaas on 1.1.1975. It did not apply to major
daughters and even if there were major daughters on 1.1.1975 that was of no benefit to their father.
The fact remains that as on 1.1.1975, the peitioner was a minor daughter that as on 1.1.1975, the
petitioner was a minor daughter and even assuming that the principle under the General Clauses Act
that a `male' includes a `female' could apply to Section 4 (a point which we need not decide so far
as section 4A is concerned), that would not help the father and the father's family unit would not
therefore get and extra entitlement because the daughter was not a major on 1.1.1975. It must be
noted that Section 29A would not nullify the fact that the petitioner was a minor on 1.1.1975. Thus,
the plea based on section 4A has no merit.
Thus, both contentions stand rejected.
These are the reasons for dismissal of the Special Leave Petition on 29.9.2000.