ORDER
Jhunjhunuwala, J.
1. By these writ petitions, the petitioners seek to have orders passed by the Land Resettlement Officer-III, Dadra and Nagar Haveli, Silvasa; Deputy Collector (LR) Dadra and Nagar Haveli, Silvasa; and Officer Exercising Appellate and Revisional Powers of the Administrator under the Dadra and Nagar Haveli land reforms regulation, 1971. Though short but important question of law involved is common and the facts are interlinked, both these writ petitions are being disposed of by this common judgment.
2. In the year 1956, the petitioner 1 and 2 in Writ Petition No. 1512 of 1982 had purchased land admeasuring 5 Hectres and .01 Are from Survey Nos. 534/1, 634 and 693 situate at Saily. Both the said petitioners though related to each other as brother-in-law constituted different and separate families. In the month of February, 1964, both the said Petitioners along with Petitioners 3 and 4 in Writ Petition No. 1512 of 1982 purchased Alwara land admeasuring 25 hectares and 33 Ares bearing Survey Nos. 389, 412, 413 and 415 of Village Saily from one Gulabbhai Vallabbhai. The Petitioners in Writ Petition No. 1512 of 1982 thus jointly purchased Alwara land admeasuring 30 hectares and 34 Ares prior to 20th August, 1964, and were separately cultivation the same. In the year 1969, the Petitioners in Writ Petition No. 1512 of 1982 sold 17 Hectares and 94 Ares of land to one Sukkarbhai Morarbhai and 7 Hectares and 40 Ares of land to one Bai Gangabai wife of Gojiabhai Sukkarbhai out of the lands purchased as aforesaid by them. The said Sukkarbhai Morarbhai died on 5th February, 1977. The said Sukkarbahi Morarbhai was father of Petitioners 1 to 4 and husband of Petitioner No. 5 in Writ Petition No. 2183 of 1982. The said Bai Gangabai, the 6th Petitioner in the said Writ Petition No. 2183 of 1982, is the daughter-in-law of the deceased Sukkarbhai.
3. To abolish Alwara and Terem tenures, to confer occupancy rights on Alwara and Terem holders and their tenants, to impose a ceiling on possession of agricultural lands, to provide for acquisition and distribution of land held in excess of such ceiling and to regulate the relation of landlords and tenants, in the Union Territory of Dadra and Nagar Haveli and for matters connected therewith, the President of India promulgated Regulation called the ‘the Dadra and Nagar Haveli Land Reforms Regulation, 1971 (for short, ‘the Regulation’). The appointed date in respect of the Regulation is 20th August 1964, being the date on which the Land Reforms Commission for the Union Territory of Dadra and Nagar Haveli was appointed. Section 3 of the Regulation provides for extinguishment of concessions in respect of land held under an Alwara or Terem tenure and vesting to such land in the Government, the date of such vesting as notified by the Administrator is 1st May, 1974. Section 4 provides for grant of occupancy rights in respect of lands vesting in Government under Section 3. Section 8 of the Regulation provides for ceiling area of land. Section 9 provides for prohibition on possession of land in excess of ceiling area and vesting of excess land in Government. Section 21 provides for publication of public notice by the prescribed authority calling upon every Alwara holder or Terem holder, tenant or other person interested in any land to file before him within the prescribed period a statement giving the details of such land, his rights therein and such other particulars as may be prescribed. Section 22 provides for holding enquiry by the prescribed authority.
4. On the Regulation coming into force, the prescribed authority had issued a general notice calling upon all Alwara-holders, Terem-holders and tenants of Village Saily to furnish particulars regarding the land in their ownership and/or possession in Form No. 6 prescribed by Rule 10 of the Rules framed under the Regulation and had also issued individual notices to the petitioners in both the Writ Petitions. Petitioners 1 and 2 in Writ Petition No. 1512 of 1982 had furnished the information in Form No.6 and the inquiry was numbered as L.R. case No. 345 of 1974 of Saily. Similarly, the said Sukkarbhai Morarbhai had furnished the information in Form No. 6 and the inquiry was numbered as L. R. Case no. 358 of 1974 of Saily. All these case were heard together. By this order a passed on 14th February, 1978, Land Reforms Officer III, the prescribed Authority under the Regulation, held that the Petitioners in Writ Petition No. 2183 of 1982 were entitled of occupancy rights in respect of 10.33 Hectres of lands treating them as one family and Petitioners 1 and 2 in Writ Petition No. 1512 of 1982 were entitled to hold occupancy right of only 0.06 Ares of Kharaba lands of Survey No. 693 and the rest of the lands was declared surplus and as such, vested in Government. The said order annexed as Exhibit ‘C’ to both these Writ Petitions is challenged by the Petitioners. Feeling aggrieved by the said order dated 14th February, 1978, the Petitioners in Writ Petition No. 2183 of 1982 along with Petitioners 3 and 4 in Writ Petition No. 1512 of 1982 filed Appeal No. 259 of 1978 and Petitioners 1 and 2 in Writ Petition No. 1512 of 1982 filed Appeal No. 263 of 1978. Both these appeals were filed in the Court of the Deputy Collector (Land Reforms), Dadra and Nagar, Haveli, Silvasa. Both these appeals were heard together and dismissed by the common order passed by the Deputy Collector (LR) on 28th March, 1979. The said order annexed as Exhibit ‘B’ to both these writ petitions is challenged by the Petitioners. Feeling aggrieved by the judgment and order dated 28th March, 1979, the Petitioners in Writ Petition No. 1512 of 1982 filed Revision Application No. 6 of 1979 and Petitioners in Writ Petition No. 2183 of 1982 file Revision Application No. 4 of 1979. Both these Revision Application were filed before the Officer Exercising Appellate and Revisional Powers of the Administrator under the Regulation. Both these Revision Applications were heard together and by common order passed on 20th January, 1982 by Officer Exercising Appellate and Revisional Powers of the Administrator, the same were partly allowed. The finding of both the lower authorities under the Regulation on all points except the question of survey Nos. 412 and 413 of Village Saily being capable of yielding more than one crop were confirmed. The case was remanded to the Land Reforms officer only for getting the finding of the collector on the question whether Survey nos. 412 and 413 were capable of yielding more than one crop, and then deciding as to whether the Petitioners in Writ Petition No. 2183 of 1982 were entitled to occupancy rights for 10.33 Hectares of land or 11.00 Hectares of land of Village Saily and passing suitable orders. The said order dated 20th January, 1982 annexed as Exhibit ‘A’ to both these Writ Petitions is challenged by the Petitioners.
5. It is in dispute that out of land admeasuring 30 Hectares and 34
Ares purchased by the Petitioners in Writ Petition No. 1512 of 1982 prior to the appointed day i.e. 20th August, 1964 they had sold land admeasuring 17 Hectares and 94 Ares to the said Sukkarbai Morarbhai and land admeasuring 7 Hectares and 40 Ares to the said Bai Gangabai Gojiabhai in the month of February, 1969, i.e. during the period from the appointed date to the vesting date. The prescribed authority has granted occupation rights in respect of 10 Hectares and 33 Ares of land in favour of the Petitioners in Writ Petition No. 2183 of 1982 as according to him, the Petitioners in Writ Petition No. 1512 of 1982 being vendors thereof were entitled to occupancy rights in respect of that such land and the Petitioners in Writ Petition No. 1512 of 1982 being vendors thereof were entitled to occupancy rights in respect of that such land and the Petitioners in Writ Petition No. 2183 of 1982 had stepped into their shoes. On behalf of the Petitioners, it is submitted that since each of the Petitioners in Writ Petition No. 1512 of 1982 had paid consideration for his share in land admeasuring 25 Hectares and 33 Ares jointly purchased by them, each one would be entitled to 1/4th share therein i.e. 6 Hectares and 33 Ares of land. It is also submitted that on the vesting date, Sukkarbhai’s family consisted of four major sons along with their wives and children besides he himself and as such, they were entitled to be considered for 5 holdings i.e. each one to the extent of one unit. It is further submitted that in any event, the separate holding of the 6th petitioner in Writ Petition No. 2183 of 1982 in law could not be clubbed together with the holding of Sukkarbhai’s Family so as to arrive at ceiling area of land under the provisions of the Regulation.
6. Under section 9(1) of the Regulation, no person can possess the land in excess of ceiling area in any capacity. Section 9(1) reads as under:-
“(1) Subject to the provision of this section and Section 10, no person shall possess land in excess of the ceiling area, whether as an occupant or a tenant or a mortgagee-with-possession or in nay other capacity or capacities or partly in one capacity and partly in another, and the land so possessed in excess shall vest in the Government free from all encumbrances.”
Under Section 8(1) the ceiling for one crop in a year has been prescribed as 11 Hectares. Section 2(21) of the Regulation defines ‘person’ as under:
“(21) “person” includes a company, family, joint family, association or other body of individuals, whether incorporated or not, and any institution capable of holding property.”
In view of the above definition of ‘person’ all the said authorities under the Regulation whose orders are challenged in these writ petitions have taken the view that the body of individuals whether incorporated or not but capable of holding the property is to be treated as a person entitled to hold only one unit. This view is not correct.
7. Under Section 45 of the Transfer of Property Act, 1882 where immovable property is transfer for consideration to two or more persons, and such consideration is paid out of the fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interest in such property identical, as nearly as may be, with interest to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively, entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively advanced, such person shall be presumed to be equally interested in the property. Accordingly, though there is a evidence on record to show the mode payment of consideration by the Petitioners in Writ Petition No. 1512 of 1982 for joint transfers of land admeasuring 25 hectares and 33 Ares and since no contract amongst them for their respective share therein has been established, they being joint owners are, as per Section 45 of the Transfer of Property Act presumed to be equally entitled to one unit. Similarly, the Petitioners in Writ Petition No. 1512 of 1982 jointly having transferred their equal interest in land admeasuring Hectares and 94 Ares to the said Sukkarbhai whose heirs are Petitioners 1 to 5 in Writ Petition No.2183 of 1982 and in land admeasuring 7 Hectares and 40 Ares in favour of the petitioner No. 6 in Writ Petition No. 2183 of 1982 who is separate and distinct person being daughter-in-law of the deceased Sukkarbhai, it is wrong to say that all the Petitioners together in Writ Petition No. 2183 of 1982 are entitled to only one unit. In the facts of the case, each one of case, each one of them would be separately entitled to one unit. In the case of Sardaben Mafatlal v. V. M. Karandikar, reported in 1982 Mah LJ 723, which arose under the provisions of Urban land (Ceiling and Regulation) Act, 1976, Division Bench of our Court while construing definition of ‘person’ as contained in Section 2(i) of the Act, which is similar to the definition of ‘person’ under Section 2(21) of the Regulation, has held that the assumption of the Competent Authority that as long as the property was not divided by metes and bounds it was imperative to consider undivided holding as holding of a body of individuals, was clearly wrong. Tenants-in-common cannot be treated as covered by expression as used while defining ‘person’ to mean an association or a body of individuals. In that case, the Division Bench has put reliance on the decision of the Supreme Court of India in the case of Commissioner of Gift Tax, Kerala v. R. Valsala Amma, wherein the assessee and her sister received under the Will of their mother, inter alia, a cinema theatre building with machinery and another building called with machinery and another building called ‘Police Quarters’. Each one of them had a half share in the properties. They gifted these buildings to their brother by means of a single Gift Deed and the question was whether the assessee and her sister should be assessed in respect of the gift as individuals or as association or body of individuals. The Supreme Court held that the question whether they divided the property or not was not material. The assessee and her sister could not be assessed as an association or as a body of individuals. They could only be assessed in the status of individuals. Later on, another Division Bench of our Court of which one of us (Dr. B. P. Saraf J.) was a member, has in the case of Commissioner of Income tax v. Shiv Sagar Estates (AOP), reported in (1993) 201 ITR 953 has also taken the similar view merely because more than one person have jointly purchase more than one person have jointly purchased the lands in question, it cannot be held that they constituted a body or an association of persons or were not entitled to separate holdings within the permitted limits. There was no justification to treat the same Petitioners in Writ Petition No. 2183 of 1982 as one family in the light of explanation to Section 9 of the Regulation. In any view of the matter, under the circumstances, the separate holding by Petitioner No. 6 in Writ Petition No. 2183 of 1982 who is daughter-in-law of the deceased Sukkarbhai could be clubbed with the holding of the Petitioner 1 to 5 therein.
8. In the result, the order passed by the prescribed authority under the Regulation, which have been challenged in these writ petitions, being contrary to law are liable to be set aside and accordingly set aside. Both the writ petitions are allowed. The Rule granted in Writ Petition No. 1512 of 1982 as also in Writ Petition No. 2183 of 1982 is made absolute. However, there shall be no order as to costs of the Writ Petitions.
9. On application being made, issuance of certified copy hereof is expedited.
10. Petitions allowed.