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The law of joint property and partition in British India online

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Commissioners.

loi. If any separate estate created under this Act (-1876,5. 131.

If separate estate ^^^^^ '"^« ^^^^''^^" ^^ ^^ ^O necessitate a

falls into arrear, Col- Sale of the land for the discharge of

lector to enquire in- .1 , .. .,, . . ^

to cause and report ^iie arrear at any tune withm six years
to the Commis- from the date of the confirmation or

sioner. . ^ ,

sanction of the partition by the Com-
missioner or the Board, as the case may be,

the Collector shall, if possible, ascertain the cause
of the estate having fallen into arrear, and shall enquire
whether the same is due to any fraudulent or erroneous
allotment of the assessment or assignment of lands at
the time of the partition, and shall make a report upon
the case to the Commissioner for such action as the
Commissioner may think proper.
zi



CCX APPENDIX.

Note. — The period of 12 years provided in sections 131 and 132
of- the Act of 1876, has been reduced to six years in sections
lOl and 102 of the present Act.

[1876,5.132.] 102. If it is proved to the satisfaction of the

Power of Lieute- Lieutenaiit-Governor at any time with-

nant-Governor to j^ six yeais from the date of the con-
order a new allot- . . .•.•1.

nient of the land- firmation Of sanction or a partition by
'^^''^""^- the Commissioner or the Board, as the

case may be, whether or not upon enquiry made under
section loi, that through any fraud or error at the time
of making the partition the assets of the land assigned
to any separate estate were not in proportion to the
amount of land-revenue for which such estate was made
liable, or that the amount of land-revenue assessed on
any separate estate was not in proportion to the assets
of the lands assigned to such estate,

the Lieutenant-Governor may order a new allotment
of the land-revenue upon the separate estates in accord-
ance with the principles prescribed in this Act, on an
estimate of the assets of each such estate as they stood
at the time of the partition, such estimate being made
on such evidence and information as may be procurable.

^ , , -, loq. (I) Whenever the Lieutenant-Governor passes

[1876,5 133.] i^.:) V / J J .• f Ji

an order under section 1 02 tor the re-

prrprTeTors^of'^undLr^ allotment of the laud-revcnue on any
assessed estates to separate estate, he may direct that the

make refund to pro- ^ ^ r ^ .

prietors of over-as- proprietors whosc estatcs are found to
sessed estates, j^^^^ 1^^^^^ uudcr-assessed shall, for

each year during which they have held possession of the
separate estates, be required to pay, to the recorded
proprietors of the estates which have been over-assessed,
a sum equal to the annual amount in which the latter
are found to have been over-assessed ; and in default
of payment such sum shall be recoverable as provided
in section 108.



APPENDIX. CCXl

(2) No order passed by the Lieutenant-Governor
under sub-section (I) shall be liable to be contested in
any Court.

104. Every notification required by this Act to be [1876,5.134.]
Publication oi published shall, unless iL is otherwise

notifications. specially directed, be published by

posting up copies of the same —

(a) at the office of the Collector,

{b) at the office of the Deputy Collector who is
to make, is making or has made the partition,

{c) at the village office or village offices, if any, of
the proprietors of the parent estate, and

{d) in one or more of the principal villages in the
said estate.

105. (f) Any notice required by this Act to be [1876,8.135
Service of notices, served on any person may be served — mo 1 e .j

(a) by delivering the notice to the person to whom

it is directed, or, on failure to effect such
delivery, by posting it on some conspicuous
part of the house in which the said person
usiiall}'' resides ; or

(b) by sending a registered letter, containing the

notice, to such person, directed to the address,
if any, which he has registered under this
Act ; or

(c) by delivering the notice to a general agent of

the person to whom it is directed, or to any
person who has been appointed in that
behalf, or who has been appointed an agent
of the person to whom the notice is directed
for the general purposes of any partition
under this Act ; or



CCXii APPENDIX. .

{(i) by affixing a copy of the notice at the village
office of the person, to whom the notice is
directed ;

or, if no such village office be found, and if the notice
cannot be served in any of the other modes
mentioned in this section, by affixing a copy
of the notice on some conspicuous place on
the estate to which the notice relates.

(2) Where two or more persons are joint applicants
for the separation of an estate to be held by them
jointly as a separate estate, the service of a notice, in
any of the modes mentioned in sub-section (i), on any
one of such joint applicants shall be deemed to be good
and sufficient service on both or all of them.

[■876,. .36.] „,,.,„ ,„, ■„. '06. If the directions of this Act
regularities not to are ui substancc and ettect complied
vitiate proceedings. ^jj.^^^ ^^^ proceedings thcrcundcr shall

be affected —

[a) by reason of any mistake or informality unless

any person has suffered, or is in danger of
suffering material injury in consequence of
such mistake or informality ; or

(b) by reason of the omission to publish any noti-

fication required by this Act, or to serve any
notice on any person whose name is not
recorded on the Callector's registers as pro-
prietor of the estate in respect of which the
notice is required by this Act to be served.

107. If any proprietor or other person fails to
I '^^^' '• '^^ ^ comply, within the time fixed therefor

Fine in case of -^ . . , • -i* j

non-compliance by noticc, With any requisition made

with requisition. ^p^^^ l^jj-j^ Under this Act by the Col-

lector or Deputy Collector, the Collector or Deputy



APPENDIX. CCXIU

Collector, as the case may be, may impose upon him
such daily line as he may think fit, not exceeding fifty
rupees,

and such fine shall be payable daily until the re-
quisition is complied with ;

and the Collector or Deputy Collector, as the case
may be, may proceed from time to time to levy the
amount which has become due in respect of any such
fine :

Provided that, whenever the amount payable ex-
ceeds five hundred rupees, the Collector shall report
the case specially to the Commissioner, and no further
levy in respect of the fine shall be made otherwise
than by the authority of the Commissioner.

Note. i. — A question having arisen whether a Collector can remit
fines imposed by himself under this section, it has been ruled
there is no objection to the Collector's remitting fines which he
had imposed, or was competent to impose, under the said
section, and which have not been levied : but this permission
does not extend to fines which require the sanction of the
Commissioner to their levy, nor does it authorize the refunding
of fines already levied. ( Butwara Collection No. 6, File 60
of 1900).

Note. 2.— This section "must be held to apply in all Butwarra
cases," {Boards' No. 363 A, dated 14/h August 1880.)

108. Except as herein otherwise expressly pro-
Fees, &c. to be re- "^^^^d, all fees, fines, costs and other modified.]^
coverabie as pub- sums Ordered Under this Act to be

lie demands. -i , 1 ,, . ,

paid by any person shall be deemed
to be public demands, and shall be recoverable under
the Public Demands Recovery Act, 1S95.



Ben. I. of

1895.



Note i.— Section 108 of Act V (B. C.) of 1897.— Stamp duties

on partition deeds are leviable under the Stamp Act and not

under any provision of the Estates Partition Act. They do not

come within the purview of Section 108 of the latter Act and



CCXIV APPENDIX.

cannot be realized under Act (B. C.) of 1895. (Butwara Coll.
No. 7, File No. 34 of 1905.)

Note. 2.— Section 108 of Act V (B. C.) of 1897. This section
provides specially for the realization of costs, etc., ordered under
this Act to be paid : but it does not apply to stamp duties on
partition deeds, which are neither leviable under this Act nor
under the Public Demands Recover)' Act ot 1895. The difficulty
with regard to recovery of stamp duties payable on partition
deeds will be considered when the Estates Partition Act next
comes under amendment. ( Butwara files Nos. 50 of 1906 and
8 of 1907. )

[1876,5.139 109. All or any powers and functions which are

""""^''^"^■^ assigned by this Act to a Deputy Col-

Powers and func- "^ -^ 1 t

tions of Deputy Icctor may be exercised and dis-
Coiiector may be charcred bv the Collector ;

exercised by Col- '^ ' '

^^<^^°^- and whenever it is provided by

this Act that any act done or order made by a Deputy
Collector shall require the sanction of the Collector,
or shall be appealable to the Collector, then if such Act
has been done, or such order has been made, by the
Collector, it shall be deemed to have been sanctioned
by the Collector or to have been confirmed by the
Collector in appeal, as the case may be.

[1876,5.141.] 110. (i) The Lieutenant-Governor may vest any

Collector or Deputy Collecor with
Co^t^r o%eputy all or any of the powers which.
Collector with under the provisions of any law for

settlement powers. , . , . • r • 1 ^^ 1

the time being m force, might be ex-
ercised by them respectively, or might be conferred
on them respectively, if they were making a settlement
of a parent estate.

(2) Such powers may be conferred either gene-
rally in respect of all estates in the partition of which
the Collector or Deputy Collector may at any time
and in any district be engaged, or specially in respect
of any particular estate.



APPENDIX. CCXV

III. (i) An appeal, if presented within one month [1876. s 142
from the date of the order appealed '"°'^'fi^'i-3
Appeals to the against, shall lie to the Callector against

Collector, and ad- '^ ' »

mission by him of evcry Order of a Deputy Collector —

objection.

(a) directing, under section 39,
by whom or how the costs of an enquiry
held in consequence of an objection raised
shall be paid ;

{b) made under section 47, sub-section (3), declar-
ing what entr}' in a record of existing
rents and other assets of land shall be ac-
cepted for the purposes of the partition ;

(c) made under section 50, adopting a record of

existing rents and other assets of land ;

(d) refusing, under section 51, to allow recorded

proprietors to make a partition privately
among themselves or by arbitration ;

{e) rejecting, under section ;^6, sub-section (^3),
an application for partition according to
separate possession ;

(f) directing, under section 81, sub-section (3^
that a tenure or holding be split up, and
that the rent thereof be apportioned ; or

ig) imposing a fine under section 107.

(2\ Objections to any other orders passed by the
Deputy Collector shall only be admitted by the Col-
lector if made when he proceeds to consider a partition
under section 58.

Note I.— By Sections 11 1 and 113 of this Act, appeals to the
Collector and Commissioner in matters of limits of land and the
rent to be paid for it in perpetuity fixed under S. 89 of the old
law (wliich corresponds to section 64 of the present Act) have
been altogether withheld. The rights of appeals in connection
with rent-free lands and permanent intermediate tenures men-
tioned in Ss. 1 10 and 1 1 1 of the previous Act corresponding to



CCXVi APPENDIX.

Ss. 82 and 83 of the present Act have also been curtailed. But
provisions have been made in this Act that objections to orders
other than those specified in Sections in and 112 may be made
to the Collector when he proceeds to consider a partition under
S. 58 and to the Commissioner when he proceeds under Section
90 or Section 91.

Note 2.— The Collector has no power to review a case struck off
by his predecessor. Board's decision in appeal No. 180 of 189^,
dated J ith July 1895.

[1876,5.143 112. (i) An appeal, if presented to the Commis-

n^°'i'fi«'^-3 sioner, or to the Collector for trans-

CoEssioner and mission to the Commissioner, within

admission by him ^^^g month from the date of the order

of objections . , ,, t ^ ^i /-.

appealed agamst, shall he to the Com-
missioner against every order of a Collector (whether
such order be passed by the Collector in the first in-
stance or in appeal from the order of a Deputy Col-
lector) —

{a) rejecting an application for the partition of an
estate, or for the separation of a share, or
putting an end to proceedings for effecting
a partition or separation after the applica-
tion has been admitted ;

■ {b) directing, under section 29, that an application
for partition or separation be admitted ;

{c) directing, under section 38, that any proprietor
shall pay more than his proportionate
share of the cost of a partition ;

{d) made under section 50, adopting a record of
existing rents and other assets of land ;

{e) refusing, under section 55, to approve a partition

made by proprietors or by an arbitrator or

arbitrators ;
(f) refusing to allow a partition to be made under

section -jG in accordance with separate

possession ;



APPENDIX. CCXVll

(gt directing, imder section 8;,. that any sum ex-
ceeding five hundred rupees shall be levied
from the proprietor of an estate not under
partition ;

[h) confirming, amending or rejecting, under section
86, an allotment made under section 84 ;

{i) made under section 88, when a dispute or doubt
exists as to whether any land forms part of
a parent estate.

(7) imposing or confirming the imposition of a fine
under section 107 ; or

ik) imposing any fine amounting to more than fifty
rupees, or directing the payment of any
costs amounting to more than fifty rupees.

(2) Objections to any other orders passed by the
Collector shall only be admitted by the
Commissioner if made when he proceeds
to consider a partition under section 90
or section 91.

113. An appeal, if presented to the Board, or to '1876,5.14
Appeals to the ^^"^^ Commissioner for transmission to '^° ' '^ ■■'
Board. the Board, within six weeks from the

date of the order appealed against, shall lie to the Board
against every order of the Commissioner —

(a) confirming, modifying or reversing any order
of the Collector, rejecting an application
for the partition of an estate, or putting an
end to proceedings for effecting a partition
after the application has been admitted ;

{b) confirming, modifying or reversing any order of
the Collector directing, under section 29,
that an application for partition be ad-
mitted ;

Z2



CCXVlll APPENDIX.

(r) confirming or amending a partition as approved
or made by the Collector ; or

(</) imposing, or confirming the imposition of, any-
fine amounting to five hundred rupees, or
ordering or confirming an order directing,
the payment of any costs amounting to
more than five hundred rupees.

Note i. — There is no appeal, as of right, to the Board from an
order of the Commissioner against an order of tlie Collector
under Section 88 of the present Act as to disputes or doubts
regarding land, ( Board's Proceedings of jof/i /ii!y, 1887,
A'o. 80, Collection 7, Ft/e 251.)

Note 2.— Cf. Section 144 (a) Act VIII (R. C.) of 1876. The
words "putting an end to proceedings for effecting a partition
after the application has been admitted'' used in section

144 (a). Act VIII of I S76 f , c .• r ActVni(B.C.)

— ; . . R-, /FTT^ — i — -^ — '■efcr to Section 36, ■ — -^r .. \, „ -

113 (a), Act V (B.C.) of 1897 ^ 34, Act V (B.C.)

- ^ - . ("Board's Proceedings of oth September 1800, No. 86,
of 1897 ^

Butwara Collection 7, File 72 of 1899.)

[1876,8.145 114. (i) Except in the cases mentioned in section

'""^'^''^•^ 113, when an order of a Collector,

peain're\^sio°n ''b'y whether passcd by him in the first in-
Board ; further ap- staucc or in appeal from the order of
^^^ °^^ ' a Deput}^ Collector, is upheld by the

Commissioner, no further appeal shall lie ; but the
Board, acting either on the application of the party
aggrieved or of their own motion, may call for the record
of the case and pass such order as^they think fit.

(2) When an order of a Collector, whether passed
by him in the first instance or in appeal from the
order of a Deputy Collector, is modified or reversed
by the Commissioner, a further appeal shall lie to the
Board in the following cases only, namely, when the
order of the Collector was one —

(a) directing, under section s^, that any proprietor



.-M'PENDJX. CCXIX

shall pay more than his proportionate bhare
of the cost of a partition, when the excess
which he is ordered to pay exceeds live hun-
dred rupees ;

{b) made under section 50, adoptint,^ a record of
existing rents and other assets of land ;

(c) directing under section 35, that any sum exceed-
ing five hundred rupees shall be levied from
the proprietor of an estate not under parti-
tion ; or

.(/) conlirming, amending or rejecting, under section
86, an allotment made under section 84.

Note i. — A Commissioner without going into the merits of a case
decided on appeal a prcUminary objection, and against his
order an appeal was preferred to the Board. It was held that,
apart from tiie fact tliat the parties agreed to the Board's enter-
ing into the merits of the case, this section fully authorized the
Board to do so, when dealing with the appeal regarding the
preliminary objection. {Board's Proceedings of 20th February^
itiS6, No P7, Collection 2, File 6jo.)



Note 2. — The partition proceedings of an entire estate were

confirmed by the Commissioner (in 1902) under section 118 of
Act \'I1I (B. C.) of 1S76. When the Amin went to deliver
possessions it was discovered that the Butwara maps were
greatly at variance with existing facts and with the papers
prepared in the course of the general survey and settlement of
the district. The Collector, after careful enquirx-, was satisfied
that it was not possible to give possession on the basis of the
Butwara papers and it also appeared to him that as regards
the same, at any rate of the estates created by the partition, the
Government revenue was in danger. Accordingly he recommend-
ed to the Commissioner that the Board should be mo\cd to direct
a revision of the proceedings.

After proloncjed correspondence between the rollector and the
Commissioner, the Commissioner decided that the Amin should
give possession under the Butwara maps so far as it cuuld be
given.



CCXX APPENDIX.

The case having come up on appeal, llie Board found that the
proceedings were governed by the provisions of tlie old Acl.
They observed as follows : —

*' Section 145 of tlie old Act VII I (B C.) of 1876, is much wider
in scope and gives much greater plenary powers of rivision and
control than the corresponding section 114 of the present
Act. It is abundantly clear that under section 145 of the old
Act, the I5oard have full power to interfere in a case like the
present.

The Board held lliat tiie fact that there was risk to the revenue
along with the impossibility of delivering possession according
to the Butwara maps and the important and vital changes which
the villages apparently had undergone since the Butwara
measurement took place and which had been brought to
prominence in the late revenue survey made it expedient that
the proceedings should be revised with a view to assigning to
each estate a fair share of the assets as they subsequently existed
and to making a more equitable re-apportionment of the burden
of Government revenue. The Board accordingly set aside the
Commissioner's order appealed against and also the Butwara
proceedings under the old Act. and directed that they should be
gone through afresh imder provisions of the Bencjal Act V of
1897. (Butwara Collection No. 7, File No. 85 of 1904, Serial
No. 4).

Note 3 — " It has been held by the Board that the second sentence
of subsection (I) of section 114 of Act V (B. C.) of 1897 gives a
revisional jurisdiction to the Board not in respect of'all orders
under the .Act, but only in respect of orders of the kind men-
tioned in the first sentence. The provisions of section 145 of
Act VIII (B. C.) of 1S76, giving general powers of supervision
and control to the Board have not been reproduced in the present
Act. (Board's Proceedings of 4th August, 1901, No. 169, Col-
lection 5, I''ile 10 of 1 90 1.)''

Note 4 — Revisional iuiisdiclion is gi\en to the Board under the
last sentence of section 114 (I). In the opinion of the Board,
that revisional jurisdiction is intended to apply to all cases other
than those specified in section i 13 and i 14 (2) in which appellate
jurisdiction is given. It would lliey think be incongruous to
hold that re\isional jurisdiction is giscn where there is con-
currence between the Collector and (Commissioner and disallowed
where there is divergence. (Bo.ird's Butwara File No. 85 of
1907, Serial No. 0).



APPENLIX. CCXXl

115. When ail appeal is presented under section [New.]
, ,. iir, section 113 or section 113, or

Stay of proceedings ' .

pending appeal or wlien the Board calls, under section
'="'''""• 114, sub-section (i), for the record of

a case, the proceedings shall not be stayed pending the
appeal or revision unless the appellate or revising
authority so directs.

116. (i) Any proceedings of a Deputy Collector, [1876,5.146,

^ I, y-. • • ^^ z modified.]

Collector or Commissioner connected -'

ce?di;S" conneciTd with giving posscssiou to the propric-
with giving posses- toi's of their respective separate estate

in pursuance of section 94 may be set
aside or amended by the Collector, Commissioner or
Board, as the case may be, provided that the revising
authority shall, within three months from the date on
which such possession has been given, make an order
to the effect that such proceedings are under its con-
sideration,

(2) Every such order shall, when made by the
Commissioner or the Board, be communicated to the
Collector of the district, and the Collector shall cause
all such orders to be published by notification.

Note i. — At the time of {giving possession, tlie Aiiiin proceeded to
divide the trees standins^ on tlie estate among- the several pro-
prietors, whereupon an objection was raised by certain sharers
to tlie effect that the trees standing on their plot sliould be left
entirely in their sole possession, as tliey should go with the
lands on which they stood- Tiie Deputy Collector held that
tlie value of the trees had not been included in the assets of
the land according to the practice there in vogue, and tliat they
should therefore be separately divided among the parties. The
Collector confirmed this order, dismissing the appeal. Against
the above orders an appeal was preferred to the Commissioner,
who docretd it o\\ tin? ground that it would be impossible to put
one proprietor in possession of a certain plot of land, and to
put other proprietors in possession ol diltercnt trees which were
growing upon iIkU plot of land. On appeal this view was upheld



CCXXll APPENDIX.

by the Board as in accordance with fairness and common sense.
{Board's Proceedings of Z'jth March, i8S6, No. 46, Collection 7,
File 1485.)



[1876,5.147.] 117. The Collector, the Commissioner and the

Orders as to costs Board respectively may pass such

'*" -'PP^'-''- orders as they think fit in respect of

the payment of the costs of any appeal which is made

to them respectively under this Act.

Note. — By this section Collector has also been empowered to
award costs in appeal which is new.

XuTE I. — A pleader, wlio was engaged in a partition case, having
t^ken 20 )'ears' purchase as the valuation of his claim for his fee,
the question how the valuation should be made in partition
cases in Revenue offices was referred to the Board, who pointed
out that in partition proceedings before Revenue officers in
calculating such fees the rules prescribed by the Board under
the Legal Practitioners' Act XVIII of 1879 should be observed.
{Board's Proceedings of ig/h May, 1883, A^o. 23, Collection 7,
File 221.)

''1^76,5.148.1 118. If, in any case in which a Collector or other

Powers of officers officcr exccrciscs jurisdiction under

exercising jiirisdic- {\-ii^ Act, any person is guilty of the

lion under this Act ,„ ^ ^ . r ^ '• l- r i

with regard to false otleuce of givHig or fabncatuig lalse
evidence of forgery, evideuce, or of forgcry, as defined in

xi,Vofi>.6o. |_j^g Indian Penal Code, or of abetting any of those



Online LibraryRam Charan MitraThe law of joint property and partition in British India → online text (page 55 of 58)