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Kattite Valappil Pathumma & Ors Vs. The Taluk Land Board & Ors [1997] INSC 190 (19 February 1997)

K.S. PARIPOORNAN, S.P. KURDUKAR

ACT:

HEAD NOTE:

Paripoornan, J.

This appeal by special leave is filed against the judgment of vision Bench of he Kerala High Court, rendered in C.R.P. No. 1894 of 1988 dated 18.7.1994. The appellants are the legal representatives of T. Mammad, the 'declarant' under the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'). The declarant had three wives. He filed a declaration regarding the land held and possessed by him before the Taluk Land Board, Taliparamba (hereinafter referred to as 'the Board'). In his statement, he had opted his wife Pathu (first wife) and here minor children as his "statutory family" by exercising the option specified in explanation I to section 82 of the Act. The Board, by order dated 28.8.1986 directed the declarant to surrender 190.54 acres of land held by him excess of the ceiling area. In revision, C.R.P. No. 2131 of 1986 the High Court set aside the order of the Board and ordered a remit. Thereafter the Board by order dated 28.6.1988 passed a fresh order determining 97.16 acres as surplus land and, therefore, the declarant was directed to surrender the remaining area. The order so passed by the Board was assailed in revision before the High Court of Kerala in CRP No. 1894 of 1988. The declarant and after his demise his legal representatives contended that the declarant having three wives and ten children in the three wife and her children shall be deemed to be a separate family under explanation I to section 82 of the Act and, therefore, the ceiling area in respect o each family has to be deducted from the total holding of the declarant. This plea was repelled by the High Court. The High Court held thus:- "The properties of the husband, the wife named by him and their unmarried minor children will be taken into account for the purpose of determining the ceiling area as if they constitute one family.

Regarding the other family constituted by the other wife and her unmarried minor children, the ceiling provisions are to be enforced as if they constituted a separate family and their properties alone will be taken into account for that purpose. In other word, the properties of the husband will not be taken into account for the purpose of fixing the ceiling area of the family constituted by that wife and her children. This position has been made clear by the explanation, the intention of which was to confine the family to the husband and one of the wives and their unmarried minor children for the purpose of the ceiling provisions of the Act.

(Emphasis supplied) The High Court observed further :- " When the husband and one of the wives and their children constitute one family the ceiling area has to be determined on the basis of the properties possessed or owned by them and not by the other wife or wives as the case may be. The properties possessed or owned by the other wife or wives are not taken into account for the purpose of determining the ceiling area of the family constituted by the husband, the wife named by him and their children." (emphasis supplied) It was noticed by the High Court that the order passed by the court in CRP No. 1891 of 1988 to exclude an extent of 15 acres was not given effect to by the Board. So, an extent of 15 acres directed to be deleted by the order in CRP No.

1891 of 1988 was directed to be excluded from the properties mentioned in part D of the order showing the lands to be surrendered. The revision filed by the declarant was allowed in part. Since the declarant is no more the legal representatives have come up in appeal against the said order passed in revision by the High Court dated 18.7.1994 modifying the order of the Board.

2. We heard counsel. The submission made before High Court was repeated before us. Counsel contended that the declarant having three wives and ten children by the said three wives each wife and the children by her shall be deemed to be separate family under the explanation i to section 82 of the Act, and, therefore, the ceiling area in respect of each family has to be deducted from the total holdings of the declarant. It was argued that the other wives and their minor children shall be deemed to be separate families and so the ceiling area in respect of each such family has to be deducted from the total holdings of the declarant so that the other two wives and their minor children shall not be deprived of their legitimate right to get a larger area. On the other hand, counsel for the respondent-State submitted that on a fair and proper reading of section 82 along with the explanations, it will be evident that when a declarant husband has plurality of wives and children, by exercise of the option under explanation I, the husband can be a member of only one such family and not of all the families simultaneously and only the lands owned by the husband and the family so chosen by him will be taken into account for calculating the ceiling area of a family. It was argued, that the lands owned of possessed by the other wives and members of their families will not be taken into account for the purpose of fixing the ceiling area in respect of the family constituted by the husband, one o his wives and unmarried minor children in that wife, which constitute the statutory family for the purpose of computing the ceiling area. section 82 was understood and interpreted in the light by the High court of Kerala ever since the Act came into force and the High Court in the impugned judgment has only given effect to the said legal position. A different view is not warranted specially at this state when the law laid down by the High Court and followed in the impugned judgment has held the field for more than two decades.

3. On hearing the rival pleas, we are of the view that the judgment of the High Court does not call for any interference.

4. Section 2(14) of the Act defines 'family'. It States:- " "Family" means husband, wife and their unmarried minor children or such of them as exist." Section 82 of the Act along with explanation is as follow:- "82. Ceiling area -(1) The ceiling area of land shall be,- (a) In the case of an adult unmarried person or a family consisting or a sole surviving member, five standard acres, so however that the ceiling area shall not be less that six and more than seven and a half acres in extent:

(b) In the case of family consisting of two or more, but not more than five members, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent;

(c) In the case of a family consisting of more than five members, ten standard acres increased by one standard acre for each member in excess of five, so however that the ceiling area shall bot be less that twelve and more than twenty acres in extent; and (d) In the case of any other person, other than a joint family, ten standard acres so however that the ceiling area shall not be less than twelve and more that fifteen acres in extent.

(2) For the purposes of this Chapter, all the lands owned or held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be owned or held by the family.

(3) In Calculating the extent of land owned or held by family or an adult unmarried person, the shares of the members of the family or the adult unmarried person, as the case may be, in the lands owned or held- (a) by one or more of such members jointly with any person or persons other than a member or members of such family or by such adult unmarried person jointly with any other person or persons; or (b) by a co-operative society or a joint family, shall be taken into account.

Explanation - For the purposes of this sub-section, the share of a member of a family or an adult unmarried person in the land owned or held jointly or by a co- operative society or a joint family shall be deemed to be the extent of land which would be allowed to such member or person had such lands been divided or partitioned, as the case may be, on the date notified under section 83.

(4) Where, after the commencement of this act, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to a surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion.

(5) The land owned or held by a private trust or a private institution shall be deemed to be lands owned or held by the person creating the trust or establishing the institution, or, if he is not alive, by his successors-in- interest.

(6) In computing the ceiling area, lands exempted under section 81 shall be excluded.

Explanation I - For the purposes of this section, where a person has tow or more legally wedded wives living, the husband, one of the wives named by him for the purpose and their unmarried minor children shall be deemed to be one family and the other wife or each of the other wives and her unmarried minor children shall be deemed to be a separate family.

Explanation II - For the purposes of this section, and adult unmarried person shall include a divorced husband or divorced wife who has not remarried:

Provided that if such divorced husband or divorced wife is the guardian of any unmarried minor child, he or she together with such unmarried child shall be deemed to be family." (emphasis supplied)

5. Section 82 of the Act came up for consideration before a Division Bench of the High Court of Kerala in Kesava Menon vs. State of Kerala and another (1976 KLT 408). The facts of the case, the plea put forward and the decision are neatly stated in paragraphs 1 to 3 of the judgment thus:- "One Kesawa Menon who has two wives owns extensive lands. While he has no issue through his first wife he has issues through the second put their number is not more than four.

In the statement he filed under section 85(2) of he Act regarding excess land he treated his two wives as members of two different families and named the first wife as a member of his family. The Taluk Land Board treated his first wife as a member of his family and fixed the ceiling area of his lands accordingly as for one family, namely 14.91 acres, and directed him to surrender the excess portion of 67.44 acres. It is the correctness of the order that is challenged in these revision petitions, one of which is filed by Kesava Menon and his two wives and the other by the heirs of a transferee of some of his lands.

xxxx xxx xxxx The Contention of the petitioners in these tow Revision Petitions is that if a person who owns lands has tow wives and they have not lands, as regards his lands the ceiling limit is that for two families and that is justified by Explanation I" (emphasis supplied) Delivering the judgment on behalf of the Bench Narayana Pillay, J. Stated the Law thus:- "If a person has tow wives, including them and his children through them, as a matter of fact in the ordinary sense there is only one family. But Explanation I has introduced a fiction by which he is allowed to treat the two wives with their children as constituting tow separate families. Along with the granting of that privilege a restriction is also placed by the Explanation. The restriction is that he can be a member of only one of such families to be chosen by him and not of both the families simultaneously. That the husband can be a member of only one of the families is an integral part of the Explanation. While cub section (1) has fixed the ceiling area subsection (2) has prescribed the lands to be taken into account in calculating the ceiling area of a family. Sub Section (2) says that in calculating the lands owned by a family those owned individually and jointly by the members of that family should be taken into account and Explanation I is a explanation to the entire section including sub Section (2). The result is that although nationally the second wife of Kesava Menon and her issues constitute a separate family, as he is not a member of that family his lands cannot be taken into account in fixing the ceiling area of that family. Otherwise it would lead to the absurd consequence of having to take into account the lands of a stranger to a family also in fixing the ceiling of the family. If the husband cannot be a member of both the families at the same time it inevitably follows that his lands can be taken into account only in calculating the ceiling area of the family to which he is deemed to belong. It was the same conclusion that was reached by our learned brother, Viswantha Iyer J, in Kuttan V. State of Kerala and Others, 1976 KLT 49. In the present case the Taluk Land Board was right in fixing the ceiling area of the lands held by Kesava Menon as 14.91 acres and directing him to surrender 67.44 acres as excess land." (emphasis supplied)

6. In a later decision in Mavilammal vs. Taluk land Board (1984 KLT 962) the declarant having tow wives , opted to treat the second wife and children as member constituting his family. The question arose as to whether the other wife and children should be treated as another family entitling them to share the properties for purpose of ceiling limits.

Bhaskaran, Acting Chief Justice, held thus:- "It was argued on behalf of the petitioner that unless the first wife and her children also are treated as a separate family entitled to the properties of the declarant in the ceiling proceedings, it would cause hardship as far as the first wife who is not named by the declarant to be his wife for the purpose of the ceiling provisions, and the children born to the declarant in that wife. He submitted that the purpose of the Explanation is a ensure that where the declarant has more wives than one, then each wife with her minor children should be treated as persons who are entitled to claim share in the property for the purpose of the ceiling area. In other words, according to him, it is only after setting apart sufficient land permitted for two families, the extent depending upon the number of persons constituting each family, that the balance area should be ordered to be surrendered. The scheme of the Act, According to me does not permit his interpretation inasmuch as the declarant could be a member of one of the families only: and the determination of the ceiling area has to be made with reference to his statutory family which includes himself, if any, born in that wife.

For that matter even the major sons and daughters might fall out of the ambit of the statutory family." (emphasis supplied) We are of the view that the aforesaid decisions lay down the law correctly. The High Court was justified in holding that only the lands owned by the husband and the family chosen by him (as per explanation I to section 82 of the Act) will be taken into account for calculating the ceiling area of a family. The land owned and possessed by the other wives and members of their families will not be taken into account for the purpose of fixing the ceiling area in respect of the statutory family constituted by the husband as aforesaid. It is not permissible to treat the other wives and their children as separate families and then to deduct the ceiling area for each of such family from the total holding of the declarant husband. We concur with the reasoning and conclusion of the High Court. We are further of the view, that even if another view is possible, we are not inclined to take a different view at this distance of time. Interpretation of the law is not a mere mental exercise. Things which have been adjudged long ago should be allowed to rest in peace. a decision rendered long ago can be over-ruled only if this Court comes to the conclusion that it is manifestly wrong or unfair and nor merely on the ground that another interpretation is possible and the court may arrive at different conclusion. We should remember that the law laid dow by the High Court in the above decision has not been doubted so far. The Act in question is State enactment. These are weighty considerations to hold that even if different view is possible, if it will have the effect of upsetting or re-opening past and closed transactions or unsettling titles all over the State, this Court should be loathe to take a different view. On this ground as well, we are not inclined to interfere with the judgment under appeal.

7. The judgment of the High Court of Kerala rendered in C.R.P. No. 1894 of 1988 is affirmed. The appeal is dismissed. There shall be no order as to casts.

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