PITAMBAR SINGH AND ORS.versusSTATE OF BIHAR AND ORS.

                        [201 O] 12 S.C.R. 958


A                  PITAMBAR SINGH AND ORS.
                                 v.
                   STATE OF BIHAR AND ORS.
                  (Civil Appeal No. 8865 of 2010)

B                        OCTOBER 8, 2010
         [V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.)

        Land Ceiling:

C        8ihar Land Reforms (Fixation of Ceiling Area and
    Acquisition of Surplus Land) Act, 1961 - ss.2(ee}, 11(1) and
    32 8 - 8ihar Land Reforms (Fixation of Ceiling Area and
    Acquisition of Surplus Land) (Amendment) Act, 1982 -
    Class-I/ land - Mitakshara joint family comprising of appellant
D   no.1, his wife and sons having a total family holding of 33.95
    acres - Draft statement made and published showing that
    appellant No. 1 was entitled to retain only 18 acres of land and
    thus, the family was holding 15. 95 acres of land as surplus
    land - Appellate Authority recorded that one son of appellant
E   no.1, namely, appellant No.2 was major, thus, he was entitled
    to be treated as a separate family from that of appellant no. 1
    - Order not challenged by the State and attained finality -
    Amendment Act came into force - Section 328 relied upon
    by State Government - Initiation of fresh proceedings -
F   Ceiling re-determined - Challenge to - Rejected by High
    Court- Held: In the facts and circumstances, s.328 could not
    have been relied upon by the State Government, and the High
    Court erred in legalizing the subsequent reopening of the
    proceedings, which had come to a dead end - Since the order
    passed by the appellate authority attained finality, there was
G   no question of any further proceedings - Even on the merits,
    the High Court committed a patent error in treating the family
    as one family and proceeding to limit the entitlement of the
    family holding to 18 acres - The rights of appellant Nos. 1 and

H                                 958
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                959
                  AND ORS.

2 as coparceners was intact - Further, since they were major       A
on the relevant date, they could not have been held as
member of one family and were entitled to be treated as
independent families with the result that there would be two
families and the total land being only 33. 95 acres, there could
be no surplus, as has been wrongly held by the courts below,       B
particularly, after the reopening of the proceedings under
s.328 of the Amendment Act.

     Appellant no.1 is the son of 'B', the original land
holder. They were members of a Mitakshara joint family             c
and were having a total family holding of 33.95 acres of
class-II land. The ceiling fixed by the Bihar Land Reforms
(Fixation of Ceiling Area and Acquisition of Surplus Land)
Act, 1961 is 18 acres in respect of such land. After the
death of 'B', proceedings were started by a Ceiling Case           D
against appellant No. 1. A draft statement was made and
published showing that appellant No. 1 was entitled to
retain only 18 acres of land and thus, the family was
holding 15.95 acres of land as surplus land.

      On the service of the draft statement, appellant No.         E
 1 filed objections under Section 10(3) of the Act stating
that his son, appellant no.2 was major on 9.9.1970, the
relevant date under the Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961,
and as such, he also was entitled to his own share and             F
he could not be held as a member of family of appellant
no.1. The objection was rejected. The appellate authority
by its order dated 15-2-1977 recorded a finding that
appellant No. 2 was major on 9.9.1970, and accordingly,
he was entitled to be treated as a separate family from            G
that of appellant No.1, and that there was no surplus land
in between the two families, namely, appellant no.1 and
his son appellant no.2. This order was not challenged by
the State by way of a revision and the said order attained
the finality.                                                      H
    960      SUPREME COURT REPORTS          [2010] 12 S.C.R.

A      Subsequently, the 8ihar Land Reforms (Fixation of
  Ceiling Area and Acquisition of Surplus Land)
  (Amendment) Act, 1982, came into force, pursuant to
  which a fresh draft statement was issued and the ceiling
  was re-determined, holding the family of the appellants
B (appellant no.1 and appellant no.2) to be one family. This
  order was confirmed by the Tribunal. Aggrieved, the
  appellants moved the High Court by way of a writ petition.
  The Single Judge of the High Court noted that there was
  a final order holding that the appellants were entitled to
c be counted as two families, yet held that the said old
  notification/publication would be deemed to be operative
  on the date of coming into force of the provisions of
  s.328 of the Amendment Act. The Division Bench
  affirmed the said order.
D         Allowing the appeal, the Court

       HELD:1. The Single Judge of the High Court erred
  in taking the view that since there was no final publication
  of draft statement under Section 11 (1) of the Ceiling Act
E prior to coming into force of the provisions of Section 328
  of the 8ihar Land Reforms (Fixation of Ceiling Area and
  Acquisition of Surplus Land) (Amendment) Act, 1982, the
  authority was justified in disposing of the proceeding
  afresh in accordance with the provisions of Section 10
F of the Ceiling Act and passing final order upon the
  objection filed under Section 10(3) of the Ceiling Act filed
  on behalf of the appellants. The Single Judge did not, in
  any manner, go into the merits of the matter nor did he
  give effect to the order dated 15.12.1977, where it was
G unequivocally held that the land holders were entitled to
  be treated as two families. The whole course undertaken
  was completely illogical and unjust. In view of Section
  11 (1) of the Ceiling Act, there ought to have been the
  finalization of draft statement and the publication thereof
H
 PITAMBAR SINGH AND ORS. v. STATE OF BIHAR              961
                 AND ORS.

after passing of the order dated 15.12.1977 altering the       A
earlier published final statement. [Para 5) [969-B-E]

     2. In the instant case, as noted by the High Court in
the LPA, the old draft statement was published when in
fact even the matter was not finally decided in between        8
the State and the land holders. Such draft statement
which was published prematurely, could not be treated
as a proper draft statement and there could be no
publication thereof also. In fact, the Division Bench
correctly noted that the publication, as contemplated, is      C
to be made only after the disposal of the objection,
appeal and revision and if the publication is made before
the disposal of the objection or appeal or revision and no
change is brought in the draft statement by the disposal
of the objection, the appeal or the revision, the
publication will hold good, but if any orders in such          D
objection, appeal or revision bring about a change, the
publication will not hold good because the sub-Section
mandates publication of a draft statement as changed
while disposing of the objection or appeal or revision.
The Division Bench has also drawn a correct conclusion         E
holding that "by reason of the appellate order dated
15.12.1977 final publication of the draft statement as was
made prior thereto stood obliterated with the order
passed on the objection, on the basis whereof the same
had been published." The Division Bench, however,              F
noted that no such draft statement was ever published
altering the earlier draft statement, and then proceeded
to hold that s.ince there was no final publication made on
the basis of the order dated 15.12.1977, Section 32B came
into operation and, therefore, there could be the initiation   G
of the fresh proceedings in terms of that Section, which
is a completely erroneous view. In fact, after the order
dated 15.12.1977 was passed, it was not for the appellants
to do anything, but it was the duty of the State
                                                               H
    962     SUPREME COURT REPORTS               [2010] 12 S.C.R.

A Government to issue a final draft statement on the basis
  of that order and then to publish it in the light of the order
  dated 15.12.1977, which duty emanated from the positive
  language of Section 11 (1) of the Act. It is not at all the fault
  of the land holders/appellants if the State Government did
B not do anything for four years i.e. between 16.12.1977 and
  9.4.1981 when the Amendment Act came into force.
  Though the inaction on the part of the State Government
  is noted by the High Court, the Division Bench refused
  to act upon it and went on to observe that "although
c there is no just reason for the Collector not finally
  publishing the draft statement immediately after the
  appellate order dated 15.12.1977 was passed, but still
  then in view of the mandate contained in Section 32B of
  the Act, freSh.,proceeding became necessary in respect
  of the land in question." One cannot approve of such
0
  approach as it would be patently unjust to give a
  premium to the State Government on its inaction. The
  appellants had nothing to do with the creating or
  publishing of the draft statement. It was the duty of the
  State Government. If the State Government did not follow
E its duty, it has to suffer and the appellants cannot be
  made to suffer on account of the inaction shown by the
  State Government either deliberately or otherwise.
  Therefore, under the circumstances, Section 32B could
  not have been relied upon by the State Government and
F both the Single Judge as well as the Division Bench have
  erred in legalizing the subsequent reopening of the
  proceedings, which had come to a dead end on
   15.12.1977. [Paras 5, 6] [970-B-H; 971-A-H]

G        3. Even on the merits, the Division Bench has
    committed a patent error in treating the family as one
    family and proceeding to limit the entitlement of the family
    holding to 18 acres. The father of appellant No. 1 was
    alive on 9.9.1970 and appellant No. 1 was a major at that
H
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR               963
                  AND ORS.

time. Further, the major sons are not part of the family.        A
The definition of the 'family' in Section 2(ee) of the Act
clearly suggests that the major son would be outside the
definition of 'family'. In the instant case, on 9.9.1970,. '8'
was alive and so was appellant No. 1 was major. Even
otherwise, appellant No. 2 was also a major person in the        B
family on 09.09.1970, as held by the appellate authority
vide order dated 15.12.1977. Thus, under no circumstance
could it be held to be a single family. The Division Bench
tried to get over this by saying that there was no pleading
that on or before 9.9.1970, there was any partition              c
effected under the joint family and that appellant No. 1
became individually entitled to holding any land Raiyat,
but there is no question of treating appellant No. 1 not to
be a Raiyat, particularly, when appellant No. 1 and his
father were the coparceners of a Mitakshara joint family
                                                                 0
holding the land in question and, as such, each of them
were entitled to the land to the extent of their share. The
Division Bench strangely held that they were only entitled
to enforce their right by seeking disruption of the joint
family by claiming and obtaining partition of the joint          E
family properties;however, that having not been done
their individual rights did not crystallize. The Division
Bench also mentioned further that though they had
"floating right" in the land in question, but having regard
to the explanation inserted to the definition of the word
'family' in Section 2(ee) of the Act, such floating right        F
could not be taken into consideration for determining the
composition of the family for the purpose of the Act. This
approach is to be disapproved. The right of a coparcener
comes in his favour with his birth and considering the
definition of 'family', which includes only a person, his/       G
her spouse and minor children, the logic of the Division
Bench is erroneous. Explanation II to Section 2(ee) of the
Act makes the matters clear when it says that personal
law shall not be relevant or be taken into consideration
                                                                 H
    964      SUPREME COURT REPORTS             [2010] 12 S.C.R.


A in determining the composition of the family for the
  purposes of the Act. Therefore, though it was a joint
  family of B' and appellant No. 1 and thereafter of
  appellant no.2, the rights of appellant Nos.1 and 2 as
  coparceners would be intact. Further, since they were
8 major on the relevant date, they could not have been
  held as member of one family and were entitled to be
  treated as independent families with the result that there
  would be two families and the total land being only 33.95
  acres, there could be no surplus, as has been wrongly
c held by the Courts below, particularly, after the reopening
  of the proceedings under Section 328 of the Amendment
  Act. On both counts, therefore, the High Court has erred.
  Therefore, it is held that since the order dated 15.12.1977
  has attained finality, there would be no question of any
D further proceedings. [Para 7] [971-H; 972-A-B-E-H; 973-
  A-G]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8865 of 2010.

E       From the Judgment & Order dated 30.11.2006 of the High
    Court of Patna in LPA No. 1483 of 1997.

        Nagendra Rai, Shantanu Sagar, Smarhar, Gopi Raman
    and T. Mahipal for the Appellants.

F         Gopal Singh and Manish Kumar for the Respondents.

          The Judgment of the Court was delivered by

          V.S. SIRPURKAR, J. 1. Leave granted.

G       2. A judgment dismissing the Letters Patent Appeal and
    confirming the order of the Single Judge has fallen for
    consideration in this appeal. The learned Single Judge of the
    High Court had dismissed the Writ Petition. By order dated

H
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                 965
         AND ORS. [V.S. SIRPURKAR, J.]

31.12.1983 passed
               y
                        by the Sub-Divisional Officer in Ceiling    A
Case No. 15 of 1973, the objection filed under Section 10(3)
of the Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961 (hereinafter referred to
as 'th,e Ceiling Act') was rejected. This order was confirmed
by the'\Pistrict Collector vide order dated 21.5.1984 and was       B
further c'onfirmed in the revision by Resolution dated 22.5.1986
passed-by the Additional Member, Board of Revenue. The
appellants moved the High Court by way of a Writ Petition being
C.W.J.C. No.38~4 of 1986, which was dismissed by the
learned Single Judge. The appellants then filed a Letters           c
Patent Appeal (LPA); however, in the LPA, all the
aforementioned orders were confirmed.

     3. In order to appreciate the contentions raised by Shri
Nagendra Rai, learned Senior Counsel appearing on behalf of
the appellants, it is necessary to go into the facts of the case.   D

     4. One Bhagwati Singh was the original land holder. His
son was Pitambar Singh (appellant No. 1 herein) and Pitambar
Singh has two sons, namely, Rabindra Kumar Singh (appellant
No. 2 herein) and Jitendra Kumar Singh. Bhagwati Singh was          E
alive on 9. 9.1970, which is the relevant date under the Ceiling
Act. Pitambar Singh (appellant No.1) and his wife and sons
were living with Bhagwati E'~ngh. They were members of a
Mitakshara joint family and were having a total family holding
of.33.95 acres of class-II land. The ceiling fixed by the Ceiling   F
Act is 18 acres in respect of such land. The proceedings were
started vide Ceiling Case No. 15 of 1973 against Pitambar
Singh (appellant No. 1); since, by that time, Bhagwati Singh,
the father, had died. Still Pitambar Singh (appellant No. 1) also
had a major son, Ravindra Singh. A draft statement was made         G
and published showing that Pitambar Singh (appellant No. 1)
was entitled to retain only 18 acres of land and thus, the family
was holding 15.95 acres of land as surplus land. On the service
of the draft statement, Pitambar Singh (appellant No. 1) filed
objections under Section 10(3) of the Ceiling Act. It was pointed
                                                                    H
    966      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   out that whatever may be the status on the relevant date under
    the Ceiling Act, when the proceedings were taken, Rabindra
    Kumar Singh (appellant No. 2) was major on 9.9.1970 also and
    as such, he also was entitled to his own share and he could
    not be held as a member of family of Pitambar Singh. This
B objection was rejected by the order dated 31.10.1975. An
    appeal was preferred against this order, wherein it was decided
    that the appellants should be treated as two families. However,
    this order was recalled and the appeal filed before the appellate
    authority came to be dismissed by the order dated 30.6.1976.
C A revision was filed against this order, which stood allowed by
    the order dated 10.5.1977, whereby the matter was remanded
    to the appellate authority for tfle purpose of determining the age
    of Rabindra Kumar Singh (appellant No. 2 herein) as on
    9.9.1970. After the remand, the appellate authority, by its order
    dated 15.12.1977, recorded a finding that Rabindra Kumar
0
    Singh (appellant No. 2 herein) was major on 9.9.1970 and
    accordingly, he was entitled to be treated as a separate family
    from that of his father Pitambar Singh (appellant No. 1). It is
    very significant to note that this order was never challenged by
    the State by way of a revision and the said order attained the
E finality. However, a draft statement under Section 11 (1) of the
    Ceiling Act was finally published and gazetted under Section
  · 15(1) of the Ceiling Act, on the basis of the old orders no draft
    statement was published after passing of the order dated
    15.12.1977, which ought to have been published noting the
F change made by the appellate authority, whereby Rabindra
    Kumar Singh (appellant No. 2) was treated to be a major and
    that there was no surplus land in between two families, namely,
    of Pitambar Singh (appellant No. 1) and of his son Rabindra
    Kumar Singh (appellant No. 2).
G
          5. It is apparent that on 9.4.1981, the amended Act came
    into force being Bihar Land Reforms (Fixation of Ceiling Area
    and Acquisition of Surplus Land) (Amendment) Act, 1982
    (hereinafter called 'the Amendment Act'). Two new Sections
H were introduced, they being 32A and 328. They were as under:-
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                 967
         AND ORS. [VS. SIRPURKAR, J.]

     32A. Abatement of appeal, revision, review or reference:      A

            An appeal, revision, review or reference other than
            those arising out of orders passed under Section
            8 or Sub-Section (3) of Section 16 pending before
            any authority on the date of commencement of the
                                                                   B
            Bihar Land Reforms (Fixation of Ceiling Area and
            Acquisition of Surplus Land) (Amendment) Act,
            1982, shall abate:

                 Provided further that such appeal, review or
            reference arising out of orders passed under           C
            Section 8 or sub-Section (3) of Section 16 as has
            abated under Section 13 of Bihar Land Reforms
            (Fixation of Ceiling Area and Acquisition of Surplus
            Land) (Amendment) Ordinance, 1981 (Bihar
            Ordinance No. 66 of 1981 ), shall stand                D
            automatically restored before the proper authority
            on the commencement of this Act.

     328. Initiation of fresh proceeding:

            All those proceedings, other than appeal,,revision,    E
            review or reference referred to in Section 32A
            pending on the date of commencement of the Bihar
            Land Reforms (Fir tion of Ceiling Area and
            Acquisition of Surplus Land) (Amendment) Act,
            1982, and in which final publication under sub-        F
            section (1) of Section 11 of the Act as it stood
            before the amendment by aforesaid Act, had not
            been made, shall be disposed of afresh in
            accordance with the provisions of Section 10 of the
            Act.                                                   G
     Very surprisingly, after coming into force of the Amendment
Act, a fresh draft statement was issued. The objection was
raised that such draft statement should never have been
issued. However, a re-determination was taken under Section
                                                                   H
    968     SUPREME COURT REPORTS                (2010] 12 S.C.R.


A 4A of the Ceiling Act as inserted by the Amendment Act and
  as such, a whole exercise was taken and it was enquired
  whether there w<.1s any transfer of land made in between
  22.10.1959 and 9.9.1970 or thereafter. In fact, in case of the
  appellants, no such transfer was effective in between those two
8 dates. However, the objection filed to the said draft statement
  was rejected by the order dated 31.12.1983, whereby again
  the ceiling was re-determined holding the family of the
  appellants to be one family. This order was confirmed up to the
  Tribunal's order. These orders were challenged before the
c learned Single Judge, who, though noted that there was a final
  order passed on 15.12.1977 holding that the appellants were
  entitled to be counted as two families, yet held that because of
  the language of Section 328, the State Government was entitled
  to reopen the case. The learned Single Judge took the view
  that there was already a final publication made under Section
0
  11 (1) of the Ceiling Act prior to the passing of the order of
  remand by the revisional authority and the same was not
  quashed by the appellate authority. The learned Judge,
  therefore, took the view that the said old notification/publication
  would be deemed to be operative on the date of coming into
E force of the provisions of Section 328 of the Amendment Act.
  The learned Judge went on to compare the matter with the civil
  cases relating to partition. The learned Judge also took a view
  that in view of the unequivocal language of Section 11 (1) of the
  Ceiling Act, the authority was required to make final publication
F of draft statement in accordance with the order passed by it
  upon the objections, irrespective of the fact whether, according
  to the said order, the land holder was holding any surplus land
  or holding land within the ceiling limit specified under law. The
  authority in such case where the objection by the land holder
G is upheld has to make the draft statement and final publication
  has to be made to the effect that the land holder does not
   possess surplus land. However, in those cases, where
  objection is either partially allowed or it is found that the land
   holder is possessing surplus land, it is incumbent upon the
H concerned authority to make final publication of the draft
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                     969
         AND ORS. [V.S. SIRPURKAR, J.]

statement by making alteration therein and showing that the             A
land holder was not possessing any surplus land. The learned
Single Judge noted that no such step was taken for the final
publication inspite of passing of the order dated 15.12.1977.
The learned Judge, therefore, took the view that since there was
no final publication of draft statement under Section 11 (1) of         B
the Ceiling Act prior to coming into force of the provisions of
Section 328 of the Amendment Act, the authority was justified
in disposing of the proceeding afresh in accordance with the
provisions of Section 10 of the Ceiling Act and passing final
order upon the objection filed under Section 10(3) of the Ceiling       c
Act filed on behalf of the appellants. It is very significant to note
that the leafned Single Judge did not, in any manner, go into
the merits of the matter nor did he give effect to the order dated
15.12.1977, where it was unequivocally held that the land
holders were entitled to be treated as two families. It was             D
pointed out during the letters patent appeal that the whole
course undertaken was completely illogical and unjust. Relying
on Section 11 (1) of the Ceiling Act, it was reiterated before the
Division Bench in LPA that there ought to have been the
finalization of draft statement and the publication thereof after       E
passing of the order dated 15.12.1977 altering the earlier
published final statement.

     6. In our opinion, this contention was absolutely right in view
of the language of Section 11 (1) of the Ceiling Act, which runs
as under:-                                                              F

            11. Final publication of draft statement:

      (1)   When the objection under sub-Section (3) of Section
            10, appeal and revision, if any, relating thereto have
            been disposed of, the Collector shall subject to the        G
            provision of Section 15A(5) make such alteration
            in the draft statement as may be necessary to give
            effect to any order passed on the objection or on
            appeal or revision and shall cause the said
            statement with the alteration, if any, to be finally        H
    970      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A               published at such places and in such manner, as
                may be prescribed under sub-Section (2) of
                Section 10 and a copy thereof duly certified by the
                Collector in the prescribed manner shall be given
                to the land holder concerned.
B
          Now, in this case, as has been noted by the High Court in
    the LPA, it was the old draft statement published when in fact
    even the matter was not finally decided in between the State
    and the land holders. A specific contention was, therefore,
C   raised that unless the controversy between the State and the
    land holders was completed, there could be no draft statement,
    much less, publication thereof. Such draft statement which was
    published prematurely, could not be treated as a proper draft
    statement and there could be no publication thereof also. In fact,
    when we see the order passed by the Division Bench, it is
D   correctly noted therein that the publication, as contemplated, is
    to be made only after the disposal of the objection, appeal and
    revision and if the publication is made before the disposal of
    the objection or appeal or revision and no change is brought
    in the draft statement by the disposal of the objection, the
E   appeal or the revision, the publication will hold good, but if any
    orders in such objection, appeal or revision bring about a
    change, the publication will not hold good because the sub-
    section mandates publication of a draft statement as changed
    while disposing of the objection or appeal or revision. The
F    Division Bench has also drawn a correct conclusion holding:-

          "The logical conclusion, therefore, would be that by reason
          of the appellate order dated 15.12.1977 final publication
          of the draft statement as was made prior thereto stood
          obliterated with the order passed on the objection, on the
G
          basis whereof the same had been published."

       The Division Bench, however, noted that no such draft
  statement was ever published altering the earlier draft
  statement. Taking this in view, the Court then proceeded to hold
H that since there was no final publication made on the basis of
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                      971
         AND ORS. [V.S. SIRPURKAR, J.]

the order dated 15.12.1977, Section 328 came into operation              A
and, therefore, there could be the initiation of the fresh
proceedings in terms of that Section. In our opinion, this is a
completely erroneous view. lh fact, after the order dated
15.12.1977 was passed, it was not for the appellants to do
anything, but it was the duty of the State Government to issue           8
a final draft statement on the basis of that order and then to
publish it in the light of the order dated 15.12.1977, which duty
emanated from the positive language of Section 11 (1) of the
Ceiling Act. It is not at all the fault of the land holders/appellants
if the State Government did not do anything for four years i.e.          C
between 16.12.1977 and 9.4.1981 when the Amendment Act
came into force. Though the inaction on the part of the State
Government is noted by the High Court, the Division Bench
refused to act upon it and went on to observe:-

     "Thus although there is no just reason for the collector not        D
     finally publishing the draft statement immediately after the
     appellate order dated 15.12.1977 was passed, but still
     then in view of the mandate contained in Section 328 of
     the Act, fresh proceeding became necessary in respect
     of the land in question."                                           E

       We do not approve of such approach as it would be
 patently unjust to give a premium to the State Government on
 its inaction. We reiterate that the appellants had nothing to do
with the creating or publishing of the draft statement. It was the
                                                                         F
duty of the State Government. If the State Government did not
follow its duty, it has to suffer and the appellants cannot be
made to suffer on account of the inaction shown by the State
Government either deliberately or otherwise. We, therefore,
under the circumstances, hold that Section 328 could not have
been relied upon by the State Government and both the learned            G
Single Judge as well as the Division Bench have erred in
legalizing the subsequent reopening of the proceedings, which
had come to a dead end on 15.12.1977.

    7. This is apart from the fact that even on the merits, the          H
    972      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   Division Bench has committed a patent error in treating the
    family as one family and proceeding to limit the entitlement of
    the family holding to 18 acres. It was an admitted position that
    the father of Pitambar Singh (appellant No. 1 herein) was alive
    on 9.9.1970. There is further no dispute that Pitambar Singh
8   (appellant No. 1 herein) was a major at that time. Further, there
    can be no dispute again that the major sons are not part of the
    family. The definition of the 'family' runs as under:-

          '"family' means and includes a person, his or her spouse
          and minor children.
c
                Explanation I - In this clause the word person
          includes any company, institution, trust association or
          body of individuals whether incorporated or not;

                Explanation II - The personal law shall not be
D
          relevant or be taken into consideration in determining the
          composition of the family for the purposes of the Act"

         Therefore, the language clearly suggests that the major son
    would be outside the definition of 'family'. In this case, on
E   9.9.1970, Bhagwati Singh was alive and so was Pitambar
    Singh (appellant No. 1 herein) was major. Even otherwise,
    Rabindra Kumar Singh (appellant No. 2 herein) was also a
    major person in the family on 09.09.1970, as held by the
    appellate authority vide order dated 15.12.1977. Thus under no
F   circumstance could it be held to be a single family. The Division
    Bench has tried to get over this by saying that there was no
    pleading that on or before 9.9.1970, there was any partition
    effected under the joint family and that Pitambar Singh
    (appellant No. 1 herein) became individually entitled to holding
G   any land Raiyat. Now, there is no question of treating Pitambar
    Singh (appellant No. 1 herein) not to be a Raiyat, particularly,
    when Pitambar Singh (appellant No. 1 herein) and his father
    were the coparceners of a Mitakshara joint family holding the
    land in question and as such, each of them were entitled to the
H   land to the extent of their share. The Division Bench has
  PITAMBAR SINGH AND ORS. v. STATE OF BIHAR                  973
         AND ORS. [V.S. SIRPURKAR, J.]

strangely held that they were only entitled to enforce their right   A
by seeking disruption of the joint family by claiming and
obtaining partition of the joint family properties; however, that
 having not been done their individual rights did not crystallize.
The Division Bench also mentioned further that though they had
"floating right" in the land in question, but having regard to the   B
explanation inserted to the definition of the word 'family', such
floating right could not be taken into consideration for
determining the composition of the family for the purpose of the
Act. We disapprove of this approach. The right of a coparcener
 comes in his favour with his birth and considering the definition   c
of 'family', which includes only a person, his/her spouse and
 minor children the logic of the Division Bench is erroneous.
 Explanation II makes the matters clear when it says that
 personal law shall not be relevant or be taken into consideration
 in determining the composition of the family for the purposes       D
of the Act. Therefore, it will be clear that though it was a joint
family of Bhagwati Singh and Pitambar Singh (appellant No.
 1) and thereafter of Ravindra Singh, the rights of Pitambar
Singh (appellant No.1) and Ravindra Singh as coparceners
would be intact. Further, since they were major on the relevant      E
date, they could not have been held as member of one family
and were entitled to be treated as independent families with
the result that there would be two families and the total land
being only 33.95 acres, there could be no surplus, as has been
wrongly held by the Courts below, particularly, after the
reopening of the proceedings under Section 32B of the                F
Amendment Act. On both counts, 'therefore, the High Court has
erred. We, therefore, allow this appeal, set aside all the orders
starting from the order dated 31.12.1983 and hold that since
the order dated 15.12.1977 has attained finality, there would
be no question of any further proceedings.                           G

    8. The appeal is allowed in terms of what is stated above.

B.B.B.                                          Appeal allowed.

                                                                     H