Citation Codes

Equivalent Citations

citation codes

Case Number

W.P No. 398 of 1989 and W.M.P No. 579 of 1989

Attorney(S)

Mr. G. Vasantha Pai, Party-in-Person, Advocate for Petitioner.
Mr. Patti B. Jagannathan Additional Government Pleader for Respondents.

Judges

C. Shivappa, J.

Acts

family.11. Sub-clause (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 contemplates thus:(3) Nothing in this Section
TAMIL NADU URBAN LAND CEILING AND REGULATION ACT 1978
Section 27 as well as Sec. 43 of the Land Ceiling Act
(Section 17 (1) (b) of the Indian Registration Act
(Sec. 17 (1) (b) of the) Indian Registration Act,
Sections 196 to 199 of the Contract Act
Section 90 of the Trust Act
INDIAN REGISTRATION ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner challenged two orders: one by respondent No. 2 in S.R. No. 1295 of 1985 dated 31.8.1988, and the other by respondent No. 1 in J2.67024 of 1988 dated 12.12.1988. Respondent No. 2, under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 ("the Act"), determined that 1,350 sq. mts of urban land in S. No. 210/2A1A1t Pt., Thiruvanmiyur Village, was excess vacant land under Section 9(5) of the Act. On appeal, respondent No. 1 confirmed that determination.

The petitioner received a notice under Section 9(4) treating him as the urban land owner and proposing acquisition of the excess land after allowing 1,000 sq. mts as family entitlement under Section 5(1), his family consisting only of himself and his wife. The petitioner contested the notice, asserting that the land recorded in a registered sale deed dated 11.12.1962 had been purchased from the sale proceeds of his father's property (Ernakulam), and that substantial sums were intended for and in respect of the petitioner’s brother's daughters. He described a family arrangement, delivery of possession to the nieces in 1976, payment receipts, correspondence, and other documents said to evidence a pre-Act family partition/arrangement.

The respondents denied the legal effect of that family arrangement unless supported by registered title transfers before 3.8.1976, contending the registered sale deed of 11.12.1962 showed the petitioner as sole purchaser and title-holder on the crucial date. The central dispute for the court was whether an oral or unregistered family arrangement (pre-Act partition) embodied in Ex.G-1 and acted upon could be recognised for the purposes of determining excess vacant land under the 1978 Act.

Legal Issues Presented

Whether a pre-Act partition in the form of an oral family arrangement (embodied in Ex.G-1 and acted upon) that was not registered under Section 17(1)(b) of the Indian Registration Act can be recognised in law while determining excess vacant land under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.
Whether the impugned orders passed by the respondents (determining the petitioner as sole owner of the excess land) are sustainable in law in light of the asserted pre-Act family arrangement and accompanying documents.

Arguments of the Parties

Petitioner's Arguments

The land recorded in the sale deed dated 11.12.1962 was purchased from the sale proceeds of the petitioner’s father's property at Ernakulam, with monies also intended for the benefit of three daughters of his eldest brother (sums of Rs. 10,000 and Rs. 14,000 specified in the factual narrative).
The transaction was made as part of a family arrangement/trust-like obligation; initially monies were treated as a loan and interest paid by the petitioner, and an agreement and allocation of plots was intended for the nieces.
Applications, letters (including correspondence dated 11.9.1962 and 22.9.1962), plans, kist receipts, delivery-of-possession documents dated 27.5.1976 and subsequent acknowledgements, patta references and membership in a colonists' association (from 1976) demonstrate a family partition/arrangement and actual delivery of possession to the nieces before the Act came into force.
The petitioner relied on principles of family arrangement and argued that the actions taken (including ratification and acceptance by the nieces and their representatives) established rights that ought to be recognised by the Ceiling Authorities; he also alleged procedural unfairness, reopening of concluded matters, denial of opportunity to inspect records, and discriminatory treatment by the Government in similar matters.
He sought quashing of the impugned orders on the basis that pre-Act family arrangement and partition had vested rights that the authorities ignored or misapplied.

Respondents' Arguments

The respondents maintained that the land was purchased solely by the petitioner as per the registered sale deed dated 11.12.1962 and, in the absence of registered transfers prior to 3.8.1976, the petitioner remained the title-holder on the crucial date.
The Act does not recognise unregistered intentions or oral arrangements unless they are supported by registered deeds; the plea of oral partition or family arrangement was therefore not acceptable in law for the purposes of determining excess vacant land.
The respondents denied allegations of procedural lapses (such as denial of opportunity to examine witnesses) and affirmed the reasons given in the impugned orders, including the appellate authority’s view that there was no valuable consideration or registered documentation effecting transfer prior to the cut-off date.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ramcharandas v. Girjanandini Devi, 1965 (3) SCR 841; AIR 1966 SC 323	That partition and family settlement are given effect to for settling disputes; family arrangements recognise existing or possible claims and operate to define shares without requiring conveyance.	The court relied on this authority to support that family arrangements effect severance of status and recognition of antecedent title; used to hold pre-Act family arrangement could be recognised.
Mst. Hiran Bibi, AIR 1914 PC 44	Authority on family settlement: parties take shares by virtue of admitted independent title; not every beneficiary need have a strict legal claim.	Referenced to show that family settlements can operate on admitted titles and that beneficiaries need not have concrete statutory claims for settlement to be effective.
Rangaswami Gounder v. Nachiappan Gounden, 46 I.A. 72; AIR 1918 PC 106	Earlier Privy Council authority on family settlements and the nature of claims under settlements.	Used as part of the survey of authorities indicating that family arrangements can be effective even where beneficiaries have only a semblance of claim.
Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292; 1966 (2) SCJ 290	Family arrangements may be oral; written memoranda need not be registered unless intended as a document creating or transferring title.	The court relied on this to hold that oral family arrangements or their memoranda do not necessarily require registration under the Registration Act, so long as they are not intended to operate as documents of title for future conveyance.
Sahu Madho Dass v. Pandit Mukand Ram, 1955 (2) SCR 22; AIR 1955 SC 481	Family arrangement/compromise acknowledges and defines antecedent title; no conveyance is necessary where title is assumed to have previously existed in the recipient.	Invoked to amplify the doctrine that family arrangements recognize antecedent title and need no conveyance; supported recognition of the petitioner's family arrangement.
Girija Bai v. Sadashiv Dhundiraj, 43 I.A. 151; AIR 1916 PC 104	Partition does not create title but enables co-parcener to obtain his share in a definite form for disposition independent of former co-sharers.	Cited to explain that partition/family arrangement effects division of rights without necessarily creating new title by conveyance.
Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1997 (2) LW 648	Distinction between transfer by one who has title to another who has none and family arrangement which recognises antecedent title; family arrangement not amounting to conveyance to a person without prior title.	Used to reiterate that family arrangements acknowledge pre-existing shares and do not amount to conveyances creating title in persons who had no antecedent title.
Kale & Ors. v. Deputy Director of Consolidation and others, AIR 1976 SC 807	Authority referenced for the view that family arrangement proceeds on assumption of antecedent title and is not necessarily a transfer.	Relied upon along with Ramcharandas and Tek Bahadur to support the proposition that family arrangements are recognisable and not transfers requiring registration.
V.N. Sarin v. Ajit Kumar Poplai, 1966 (1) SCR 349; AIR 1966 SC 432	On effect of partition: each co-parcener gets a specific property in lieu of undivided right in the totality.	Cited to elucidate the legal effect of partition as converting undivided shares into specific, identifiable portions.

Court's Reasoning and Analysis

The court proceeded to analyse the legal nature of family arrangements and co-ownership, surveying settled authorities. It identified the core question (para 8) regarding recognition of a pre-Act, oral family arrangement not registered under Section 17(1)(b) of the Indian Registration Act when assessing excess vacant land under the 1978 Act.

Principal legal propositions the court applied:

Under the jurisprudence surveyed, a family arrangement/partition can be oral or written and operates to define shares and sever joint status; it is not necessarily a conveyance creating new title but recognition of antecedent title (citing Tek Bahadur Bhujil, Ramcharandas, Sahu Madho Dass, and related authorities).
A memorandum or written record of a family arrangement need not be registered unless it is intended as a document to create or declare future title—a memorandum merely recording an arrangement does not automatically attract registration requirements (Tek Bahadur Bhujil).
Where monies used to purchase property can be traced to ancestral sale proceeds and documentation (letters, plans, kist receipts, patta references, delivery-of-possession acknowledgements) indicate an agreement and acted-upon partition, those facts support recognition of a family arrangement that operated before the Act’s inception.
Ratification principles under Sections 196–199 of the Indian Contract Act apply where acts were done on behalf of others without authority: an express or implied ratification, once communicated and accepted, relates back to the date of the act ratified; the court applied this to the letter dated 27.5.1976 and confirmations received thereafter (para 14).

Applying those principles to the record, the court found the following:

The documentary history (letters of 11.9.1962 and 22.9.1962, Ex.G-1 dated 27.9.1962, plans, receipts and correspondence, delivery-of-possession letters dated 27.5.1976 and confirmations) demonstrated an agreement to purchase and an intention to transfer eventually to the three nominees — the nieces.
The appellate authority's conclusions that there was "no valuable consideration" or that title did not vest in the nieces because no registered transfer preceded 3.8.1976 were incorrect in light of the documentary evidence accepted by that authority as genuine and in light of the settled law on family arrangements.
The court rejected the view that purchasers must be executants of the sale deed or that absence of specific mention in the sale deed of the nieces' shares necessarily defeated the family arrangement, noting that a co-owner may hold property in his name for the benefit of others and that purchasers cannot be executants.
The respondents' reliance on provisions of the Ceiling Act and the Registration Act to deny recognition of a bona fide pre-Act family arrangement was misplaced because the arrangement pre-dated the Act and was acted upon before the statutory cut-off; Section 27 and Section 43 of the Land Ceiling Act are not retrospective, and registration requirements for documents of future title do not automatically invalidate pre-Act partitions that are not registered.
Given the absence of any live factual contest (the court found documents genuine and that the property was held with intent to transfer to the nominees under Ex.G-1), remanding the matter for further enquiry would be onerous and serve no purpose; the errors were apparent on the record.

On that basis, the court concluded that the impugned findings were vitiated by misreading of law, reliance on surmise, and non-application of settled principles concerning family arrangements and registration; therefore the pre-Act family arrangement was valid and could not be ignored by the authority while determining excess vacant land under the Act.

Holding and Implications

Core Ruling: The court held that the pre-Act partition effected by way of a family arrangement, though not registered under Section 17(1)(b) of the Indian Registration Act, is valid in law for the purposes of determining excess vacant land under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. The court found the impugned orders to be unsustainable and quashed them.

Consequences and immediate implications:

The impugned orders passed by the respondents are quashed and the rule is made absolute.
Parties are directed to bear their own costs.
The interlocutory application (W.M.P.) was dismissed as no separate order was necessary.
The decision requires the authorities, when determining excess vacant land, to recognize bona fide pre-Act family arrangements and partitions acted upon prior to the Act's commencement, notwithstanding an absence of registration under the Registration Act, so long as the arrangement is established by the record and consistent with the surveyed legal principles.

The opinion confines its conclusion to the facts and authorities discussed. It does not purport to create a broader rule beyond recognition of pre-Act family arrangements demonstrated on the record in this case.

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G. Vasantha Pai Petitioner v. Special Commissioner And Commissioner (Land Reforms) Chepauk, Madras-5 And Another S

1. The petitioner herein has challenged the two orders, one passed by respondent No. 2 in S.R No. 1295 of 1985 dated 31.8.1988 and the other passed by respondent No. 1 in J2.67024 of 1988 dated 12.12.1988

2. The respondent No. 2 initiated action under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (hereinafter referred to as ‘The Act’) and determined that an extent of 1350 sq.mts of urban land in S. No. 210/2A1A1t Pt. of Thiruvanmiyur Village is an excess vacant land under Section 9(5) of the Act. On appeal against such determination, the respondent No. 1 confirmed the order of the competent authority.

3. The respondent No. 2 issued a notice under Section 9(4) of the Act to the petitioner, terming him as the urban land owner, to acquire the excess vacant land measuring 1350 sq.mts after allowing 1000 sq.mts towards his family entitlement under Section 5(1) of the Act, since his family consists of himself and his wife only.

4. The petitioner herein contested the notice inter alia contending that the property comprised in registered sale deed dated 11.12.1962 was purchased from and out of the sale proceeds of his father's property at Chittor Road, Ernakulam, was given a sum of Rs. 10,000 for purchase of the land in his name and a sum of Rs. 14,000 left in his hands by his parents for purchase of property for the benefit of three daughters of his eldest brother, G. Divakar Pai. Till the property was purchased, the amount was treated as a loan and the interest was paid by the petitioner. His brother was mostly employed in the northern parts of India and was very reluctant to purchase any landed property in Madras or Cochin either in his own name or as guardian of his minor children, because he felt that there was always a danger of vacant land being encroached upon by squatters and it would be difficult for him to look after any such property. It was for this reason that in the month of January, 1961, an application was made in the name of the mother of the petitioner for Nanganallur Co-operative Society property, for allotment of sites for the benefit of the petitioner's brother's children and he also made an application in his own name for purchase of the property. After the death of the mother when the time came for the execution of sale deeds, the Society would seek to register only his sale deed and not that in the name of his mother. Then, he asked for return of the monies and conveyed to his brother that he could consent to the monies deposited by his mother through him to be paid over to him on his assurance that he will obtain 6 grounds of land for his children. His brother wrote to Nanganallur Society to return the monies to the petitioner. Accordingly, he received the amount. He withdrew his application and decided to purchase the property elsewhere. He negotiated with Dr. Kunjan Raja for the purchase of his land and told him that 6 grounds were for Mr. B.K Sarvotham Rao and his sons and 6 grounds for his brother's daughters and the balance of 4 and odd grounds for him and that four sale deeds may have to be executed, one in the name of his brother's children by their father and guardian, Mr. G.D.Pai with a hope that he would persuade him to this course. When he went to Allahabad for the immersion of his parents' ashes, his brother insisted of his taking the property in his own name and of giving it to his children on their attaining majority, as desired by their parents. It was for this reason the previous list of nominees were cancelled and a single sale deed was taken in his name for 10 grounds. His nieces attained majority by 1974 and his brother returned from Cuba which was his last posting on 18.5.1976, and made a tentative partition following the division originally intended in 1962 and indicated in the plan to the sale deed under the signature of the vendors with dashed lines and in two blue-prints drawn by Chartered Engineer Mr. U.N.P.Rao, and the same was placed before his brother for allocation of plot to his children and he indicated the preferences according to which the plots demarcated with boundary stones by the Surveyor from the Thiruvanmiyur Panchayat Office brought by Mr. U.N.P.Rao, were respectively handed over by him to the first and third children of his brother, namely, Mrs. Latha R. Kini and Miss. Nirmala D.Pai on 21.5.1976 and the plot of Mrs. Madhy P. Shenoy, 2nd daughter of his brother was delivered to him on her behalf on the same date. All the three of them have acknowledged the receipt of the plan and his letter confirming delivery of possession on his office copies and his brother acknowledged the receipt of the same in his delivery book. Thus he had discharged an obligation imposed on him by his parents under a family arrangement and also discharged an obligation in the nature of a trust under Section 90 of the Trust Act and effected a partition of a joint property purchased with the aid of monies left by his parents for the purchase of property for himself and his brother's children, from the sale proceeds of his father's Ernakulam property, left in his hands.

5. He has produced evidence of kist receipt issued to Mrs. Latha Kini, Mrs. Madhu P. Shenoy and Mrs. Nirmala Rao as early as 14.3.1977 These receipts show the pattadar as Archbishop and Patta Number is given as 207. He has also produced receipts issued to him for kist bearing the same patta number in earlier years. His nieces have written immediately after the partition that they are the owners of the different plots to the Ceiling Authorities with copies to the respondent No. 1. They also represented through the Thiruvanmiyur Colonists' Association, of which they had become members from 1976, for transfer of patta and they have received letters from the Association that since their holding was less than 2 grounds each, they need not file any return. This was in September 1976 and that the Revenue Authorities recognised their rights, is clear from the issue of individual receipt referring to their holdings as 20.A-1 for Tmt. Latha R. Kini, 20.A-2 for Tmt. Madhu P. Shenoy and 20.A-3 for Tmt. Nirmala D.Pai on 14.3.1977

6. The petitioner has also alleged that the land Ceiling Authorities have deliberately allowed passage of time, reopened concluded matters and not given an opportunity to inspect the records and ignored the opinion of the Government Pleader with the notice of the then Assistant Commissioner who closed the matter. It is his case that the authority having represented on two occasions, viz., August/September 1979 and January/March, 1986, that the matter has been dropped, cannot resurrect it again when it is at an advantageous end, and it should be fair in; its methods and not to stretch the arm of law to grab the property which does not rightfully belong to it. He has also alleged discrimination that the lands comprised in S. No. 210/2 about ten and a half grounds, belong to one Sivasubramanian, an I.A.S Officer and claimed exemption treating it as an agricultural land, by letter dated 4.9.1976 He also contended that the competent authority had made no reference to the documents submitted by him. He questioned the jurisdiction of the respondents to reopen the closed matter and to embark upon the validity of the pre-Act partition, since possession had been delivered on 27.5.1976, prior to coming into force of the Act. It is his grievance that though he referred to several judgments of the High Court and Supreme Court, only a reference has been made at para 11 of the Appellate Order, without considering the ratio of those decisions to the facts of the present case and, therefore he is seeking for quashing both the orders.

7. The respondents in their counter have contended that the vacant land in Thiruvanmiyur Village was purchased solely by the petitioner as per the registered sale deed dated 11.12.1962 The Act does not recognise any intentions genuine though they be, regarding disposal of property prior to the Act unless they are backed by the registered deeds. It is also contended that there is no specific reference made in the said sale deed to the effect that the said land was purchased by the petitioner for himself and his brother's daughters from and out of the sale proceeds of their ancestral property at Ernakulam, as now contended by the petitioner herein and the plea that the joint family property was partitioned orally among himself and his brother's daughters as on 27.5.1976 is not acceptable. Since the title of the said land has not been transferred from the petitioner to others by way of registered documents prior to 3.8.1976, it is correct to hold that the petitioner is the title-holder of the said entire property as on 3.8.1976 They denied the other allegations, such as no opportunity was given to the petitioner to examine the witnesses, etc. and have affirmed the reasons assigned in the impugned orders.

8. From these pleadings, the question for consideration is whether pre-Act-Partition in the form of oral family arrangement embodied under Ex.G-1 and acted upon can be recognized in law, though not registered under (Sec. 17 (1) (b) of the) Indian Registration Act, while determining the excess vacant land under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978.

9. In order to determine this question, it is appropriate to refer the right of co-owner, the concept of family arrangement, its object and the law on these aspects. According to Mistakshara law, partition consists in defining shares of the co-parceners in the joint property and a physical division of the property is not necessary. Once the shares are defined, there is a severance of the joint status. Partition is a right incident to the ownership of property and once the parties are held as co-owners, their to partition cannot be resisted. Ramcharandas's case, 1965 (3) SCR 841: AIR 1966 SC 323 referred above, it has been held thus:

“The Privy Council pointed out in Mst. Hiran Bibi's, AIR 1914 PC 44 in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to the extent by the other parties. It is not necessary, as would appear from the decision in Rangaswami Gounder v. Nachiappan Gounden, 46 I.A 72: AIR 1918 PC 106 that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground, as say, affection”.

In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295: 1966 (2) SCJ 290, it was pointed out by the Apex Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. The Court had observed thus:-

“Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notices about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.”

In Sahu Madho Dass v. Pandit Mukand Ram, 1955(2) SCR 22, 42-43, AIR 1955 SC 481, the Apex Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows:-

“It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that little is, each party relinguishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.”

In Ramcharandas v. Girjanandini Devi, 1965 (3) SCR 841, 850-851: AIR 1966 SC 323, the Apex Court observed as follows:-

“Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word ‘family’ in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute… The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and good will amongst persons bearing relationship with one another. That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.”

10. The next aspect is whether it amounts to conveyance which requires consideration. The Privy Council in Girija Bai v. Sadashiv Dhundiraj, 43 I.A 151 at P. 161, AIR 1916 PC 104 at 108 has held thus:

“Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purpose of disposition independent of the wishes of his former co-sharers.”

In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1997 (2) LW 648, at para 22, it has been held thus:

“This Section contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each held as not amounting to a “conveyance of property” from a person who has a title to it to a person who has no title”.

“Apex Court in Kale and Ors. v. Deputy Director of Consolidation and others, AIR 1976 SC 807 and Ramcharandas v. Girijanandini Devi and ors., AIR 1966 SC 323: 1965 3 SCR 841, also took the same view and held that a “family arrangement” proceeds on the assumption that the parties, in whose favour the arrangement was made and who, under that arrangement, come to have definite and positive share in the property, is not a transfer but is only a recognition of the title already existing in them. It was also pointed out by this Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and ors., AIR 1966 SC 292, as also in an earlier decision in Ramcharandas v. Girija Nandini Devi, 1965 (3) SCR 841 that it was not necessary to show that every person taking a benefit under a family arrangement had a possible claim or even if they are related, a semblance of a claim. Gajendra Gadkar, C.J in V.N Sarin v. Ajit Kumar Poplai, 1966 (1) SCR 349: AIR 1966 SC 432 observed that “the true effect of partition was that each co-parcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family.”

11. Sub-clause (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 contemplates thus:

“(3) Nothing in this Section shall apply-

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the co-parceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”

12. Thus, it would appear from the survey of these decisions that a joint property can be a subject matter of partition by way of family arrangement, either oral or written and such arrangement is not a conveyance. It is only a severance of status and a recognition of antecedent title already existing in the property. It is appropriate to refer to the facts situation with reference to the documents about the source of money and the circumstances led to the purchase of the land in question in the name of the petitioner. The source of money emanated from the sale of the ancestral property at Ernakulam. There was an agreement to buy the property as could be seen from the letters dated 11.9.1962 and 22.9.1962 exchanged between the petitioner and his eldest brother. On his nieces attaining their majority, the property acquired in the name of the petitioner was sought to be divided accordingly. There are correspondences and plan showing the portions assigned to each one of the nieces, and ratification, payment of kist, change of patta, which show that there was a family arrangement evidenced in partition of the property acquired in the name of the petitioner under the sale deed. The appellate authority, in its order dated 12.12.1988, has held that “the extensive documentation submitted in this case by the appellant, which I may straightaway state, are not fabricated do go to show that the history of the case is as the appellant has narrated and we may safely, take it that the property was purchased with an intent to transfer them eventually to the three nominees listed under item 3 of Ex.G-1”. The Exhibit G-1 is dated 27.9.1962 As per Ex.G-1, the list of nominees is as follows:-

(1) B.K Sarvothama Rao Vice Principal Minerva College.. 3 grounds (2) B.K Vasantha Rao.. 3 grounds (3) Miss. Lalitha D. Pai Miss. Mridula D. Pai Miss. Nirmala D.Pai. 6 grounds By guardian G.D.Pai, Chief Maintenance Engineer, Orient Paper Mills, Brijraj Nagar. Balance :G. Vasantha Pai, Advocate.

13. Having regard to the source of money, the correspondence and ratification, it is evident that the petitioner held this property though stood in his name for and on behalf of his brother's daughters and thus it was once belonged jointly to the members of the family or to those who are related to the petitioner and he held it as a trustee for them. Once it is held that a person is a co-owner of the lands in question, his possession however long it might be unless it is adverse to the other co-owners cannot confer on him any right. A co-owner can get his property partitioned from another co-owner and such right to partition cannot be resisted. Partition is nothing but adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate.

14. The appellate authority has held that there was no valuable consideration. While recording this finding the appellate authority has lost sight of the fact that it was the ancestral property, which was sought to be divided for which money had been given to the petitioner by his parents for purchase of properties in the name of his elder brother's children. An undertaking was given, when the amount outstanding to the credit of the mother in Nanganallur Co-operative Society was returned to the petitioner with the consent of his eldest brother on the condition that the petitioner would buy a property elsewhere for the children of his eldest brother. The reasoning of the appellate authority that though steps were taken to effect a change on the crucial date, 3.8.1976, the title by sale vested only in the petitioner and the letters of 27.5.1976 and replies of 29.5.1976 confirming handing over have not been preceded by an agreement or deed, is not correct because there was an agreement to buy the property in the letters of 11.9.1962 and 22.9.1962 exchanged between the petitioner and his eldest brother and the finding that there was no such letter of agreement is wrong. The letter of 27.5.1976 Vol.I addressed to the three daughters and received on behalf of the 2nd daughter by the father who could be termed as an “agent of necessity” as the 2nd daughter was abroad and sent to her and delivery of possession confirmed by her on 9.6.1976 could be held to be a ratification which dates back to 27.5.1976 under Sections 196 to 199 of the Contract Act and no question of legal infirmity arises. That Sections 196 to 199 of the Contract Act deals with ratification as to the acts done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follows as if they had been performed by his authority. Ratification can be express or implied from conduct and it will be held adopted throughout. Ratification, if effective at all, relates back to the date of the act ratified. An express ratification is complete when it is communicated and accepted. Ratification of one of the series of acts constitutes one transaction and operates as a ratification of the entire transaction. In the instant case, by the correspondences between the parties, the confirmation of the whole transaction and the acceptance of the same are established.

15. Another reasoning that the three daughters should have been included as Executants of the sale deed is also not correct because purchasers cannot be executants. The other reasoning that the entire correspondences are private documents and no mention has been made in the sale deed of 11.12.1962 of the shares of the three daughters is also not correct for the simple reason that the appellate authority has examined and measured the weight of all these documents as relevant and genuine documents and also held that the property meant for three nominees. So long a member of a joint family can hold the property for himself and on behalf of others, there is no bar to purchase the property in one's own name.

16. The decision relied on by the learned Government Pleader in 1995 W.L.R 411 is in respect of post-Act sale arrangements or agreements and does not relate to any concluded family arrangement or partition that had taken place prior to the Act and can therefore be safely distinguished from the present case. Section 27 as well as Sec. 43 of the Land Ceiling Act are not retrospective in operation but prospective only.

17. The contention of the petitioner that the Government has adopted double standards and thus exists element of discrimination stands to reason. The fact remains that Mr. Subramaniam I.A.S claimed that his land was agricultural land and was given exemption there to under the Act. The Government should have in fairness followed the same precedent and exempted all other lands in Thiruvanmiyur on the same basis as the Government has collected kist as land revenue from all the owners till 1984.

18. Section 27 of the Act contemplates a statement to be made before the Registering authority in certain cases, otherwise not entitled for registration. Section 6 of the Act prevents transfer of any such vacant land held in excess of the ceiling limit by way of sale, mortgage, gift, lease or otherwise. These two sections contemplate preventing a transfer or creation of a right in a vacant land in excess of the ceiling limit either by sale, gift, exchange, lease, mortgage etc.. The respondents have lost sight of the fact that at the time when the arrangement was made and memorandum was drawn under Ex.G-1, they did not know that the Act would be passed a few months later. Therefore, it cannot be said that the family arrangement was not bona fide. The reasoning of the respondents that the family arrangement was against the statutory provision of the Act, or that it was not registered although it should have been registered under the Registration Act, does not apply to pre-Act-partition in the form of family arrangement. The family arrangement was intimated by the petitioner at the first possible opportunity and it was relied upon, but accepted by Respondent No. 1, as bona fide.

19. Where the impugned orders are vitiated by error apparent on the face of the records, normally, it is proper to correct the error and remit the matter to the authority competent to take decision in accordance with law. But, such a course need not be resorted to where there is no lis-or dispute on facts, which requires enquiry. That having regard to the finding that the documents produced are genuine and the property was held with intent to transfer eventually to the three nominees listed under Item No. 3 of Ex.G-1, dated 27.9.1962, in such circumstances, the remand to the authority will be onerous and time consuming and serves no purpose.

20. The findings recorded by the respondent are such that no person properly instructed in law would have reached, inasmuch as they based on pure surmises and misreading of the provisions of the Act and non-application of the settled principles regarding the nature of family arrangement with reference to whether such document requires registration under the Indian Registration Act. Thus, the findings of the respondents are unsustainable in law. Consequently, the circumstances of the instant case justifies the conclusion that the Pre-Act-Partition in the form of family arrangement though not registered under (Section 17 (1) (b) of the Indian Registration Act is still valid in law and the authority while determining the excess vacant land under the Act cannot ignore such a partition effected by way of family arrangement. The question for consideration is answered accordingly in the affirmative.

21. For reasons aforestated, the impugned orders passed by the respondents are liable to be quashed and accordingly quashed. The rule is made absolute. Parties to bear their own costs. Consequently, no order is necessary on the W.M.P and is accordingly dismissed.

G. Vasantha Pai Peti... v. Special Commissioner...