State of Kerala & Ors Vs. K.A.
Gangadharan  INSC 265 (27 October 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SINGH, JASWANT
CITATION: 1977 AIR 311 1977 SCR (1) 960 1977
SCC (1) 208
CITATOR INFO :
D 1979 SC1573 (17,32,65)
Kerala Land Reforms Act 1964---Sec. 81, 83,
84, 85, 85A and 86 Voluntary transfers made after notified date whether valid.
The respondent held 28.4 acres of land and,
therefore, filed a return under Section 85(a) of the Kerala Land Reforms Act,
1964. In the return, he showed his family as consisting of himself, his wife
and 3 children. Section 84 of the Act provided that all voluntary transfers
effected after publication of the Kerala Land Reforms Bill, 1963, except
certain transfers which were excepted shall be deemed to be transfers
calculated to defeat the provisions of the Act and invalid. The Act was amended
by Act 35 of 1969' which came into force on 1-1-1970. By virtue of the said
amendment, 1-1-1970 was declared as the notified date.
Section 83 provides that with effect from the
notified date no person shall be entitled to own, hold or to possess land in
excess of certain acres of land. Section 85(1) provides that any person holding
land in excess on notified date shall surrender the excess. Section 85 and 85A
are the sections laying down the procedure for surrender of the excess land.
Section 86 provides that on determination of the excess land under section 85
the same will vest in the State. On 1-1-1970, the respondent had one major
child and two minor children. One minor child attained the age: of majority in
1971 and another attained majority in 1973. In March, 1973, 3 gift deeds were
executed one in favour of each one of the children. The respondent was called
upon to hand over the excess land on the ground that the transfers executed
after 1-1-1970 in favour of the children who were minor on 1-1-1970 will be
ignored and the land will be treated as land owned by the respondent. The
respondent filed his objections and contended that he and his wife were the
only members of the family and that if the transfers were accepted he did not
hold land in excess of the ceiling.
The Land Board came to the conclusion that
out of the 28.4 acres of land held by respondents 3.9 acres were exempted under
section 81 and that the land measuring 3.8 acres gifted to the major child was
a valid gift and in addition the respondent was entitled to hold 12 acres of
land. He came to the conclusion that the respondent was holding excess land to
the extent of 8.78 acres. The respondents filed a Revision Petition in the High
Court which allowed the same.
In an appeal by Special Leave the respondent
(1) Section 83 is relevant only for fixing
ceiling. It does not say that a person or a family loses his title on the
(2) Donees were not minors on the date of
gift. That would not constitute the members of the family.
961 (3) Gifts in the present case are saved
by the last exception to section 84 which permitted gifts to any person out of
natural love and affection or, at any rate, they are saved by Amendment Act 17
of 1972 by which the exception to Section 84 was made effective from 16-8-1968,
in favour of transfers by way of gifts in favour of son or daughter or other
(4) Sections 85 & 85A lay down the procedure'
for surrendering the excess land.
Section 86 vests the excess land in the
The vesting takes place after the procedure
under sections 85 and 85A is over and till then the respondent was the legal
owner and could have and in fact validly gifted the land in question.
The appellants contended:
(1) The gifts made after 1-1-1970 were not
saved by exception to section 84.
(2) The view taken by the Single Judge has
been over-ruled by a Division Bench and Full Bench of the same High Court.
Allowing the appeal,
HELD: (1,) The provisions of the Act dearly
establish the dominant legislative intent of the imposition of the ceiling on
laud holdings and the consequential obligation to surrender laud owned or hold
in excess of the ceiling area on the notified date, namely, 1-1-1970.
Section 84 was enacted because the
Legislature anticipated transfers with a view to. circumvent the provisions of
law. Transfers between 15-8-1963 and 1-1-1970' will be valid if within the exceptions
provided by section 84.
Transfers made after 1-1-1970 even of the
excepted varieties are to be ignored and obligation to surrender the excess
land on 1-1-70 cannot be excepted by voluntary transfers made subsequent to.the
notified date. [964 G-H, 965 C-D] (2) Notified date is 1-1-1970. That is the
relevant date for fixing ceiling. Subsequent changes in the constitution of
family are irrelevant[965 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1177 of 1975.
(From the judgment and order dated 10-10-1974
of the Kerala High Court in Civil Revision Petition No. 734/74).
K.T. Harindranath, and K.M.K. Nair, for the
T.C. Raghavan and P.K. Pillai, for the
The Judgment of the Court was delivered by
RAY, C.J.--This appeal is by special leave from the judgment dated 10 October,
1974 of the High Court of Kerala.
The respondent in the High Court challenged
the order of the Land Board directing him to surrender 8.78 acres of land. The
High Court declared on a revision petition that the respondent was not liable
to surrender the lands specified in the order of the Land Board.
The respondent flied a statement under
section 85(a) of the Kerala Land Reforms Act 2964 hereinafter called the Act
and showed there that the statement related to the family consisting of
himself, his wife and children. Two of his children were minors on 1 January,
1970. The ceiling area allowed under section 82(1) of the Act for a family
consisting of two or more but not more than five members is 10 standard acres
which should not be less than 12 and more than 15 ordinary acres in extent. On
this footing the respondent would be entitled to have not less than 12 acres on
the notified date, namely, 1 January, 1970. He was found to have a total area
of 28.38 acres. He alone was the owner of all the lands. Out of 28.38 acres
3.87 acres were exempted under section 81. Excluding 3.87 acres and another 12
acres for the ceiling area the excess land was 12.51 acres. A statement showing
the determination was served on him and his wife. They were asked to file
Two of the respondent's children a daughter
and a son who were minors on 1 January 1970 attained majority in 1971 and 1973
respectively. On 28 March, 1974 the respondent executed three deeds of gift
transferring a total extent of 12.83 acres to his three children. To the eldest
of them a daughter, who was a major on 1 January, 1970 he transferred 3.84
acres. To the second daughter who became a major in 1971 he transferred 3.85
acres and to his son who became a major in 1973 he transferred 5.14 acres.
The respondent flied an objection on 5 April,
1974 stating that he and his wife who were the remaining members of the
statutory family did not hold more than the ceiling area available to the family
and therefore he was not liable to surrender any excess land. The Land Board
recognised the gift to the eldest daughter who was a major on 1 January 1970
and required the respondent to surrender 8.78 acres which was the subject
matter of the other two deeds of gift.
The respondent's contention which was
accepted by the High Court was repeated here. The contentions were these.
The donees were not minors on the date of the
gift. Therefore, the son and the daughter would not constitute members of the family.
Section 82 of the Act only fixes the. ceiling area. The ceiling is 5 acres for
an unmarried person of a family consisting of one sole surviving member. The
ceiling is 6 acres for a family of two to five members, 12 acres for a family
of more than 5 members, 10 acres increased by one acre for each member in
excess of 5 etc. The respondent emphasises that the status or nature of the
person or the family is relevant. If a person is a single member family on the
relevant date, he cannot claim a larger ceiling on the ground that he became a
two member or five member family later. Under section 83 of the Act the
notified date is 1 January, 1970. This notified date is relevant only for
fixing such ceiling. Section 83 does not say that the particular person or
family loses its title to the excess land on that date. Section 84 of the Act
has two parts. The first part contains body of the section. The second part
contains exceptions. Therefore, it is said by the respon963 dent that all
voluntary transfers of excess land failing in the body of the section shall be
deemed to be transfers calculated to defeat the provisions of the Act and shall
be invalid. The gifts in the present case are said by the respondent to fall
under the last exception of section 84 of the Act and it is said that the
transaction is saved by the last exception.
The respondent further contends that on 1
November, 1972 the Amendment 'Act 17 of 1972 deleted two exceptions in section
84 of the Act with effect from 16 August, 1968. The two deleted exceptions were
first a transfer on account of natural love and affection and second a transfer
in favour of a religious charitable or educational institution. The Amendment
Act of 1972 added an exception with effect from 16 August 1968. The exception
is a transfer by way of gift in favour of his son or daughter, or the son or
daughter of his predeceased 'son or daughter by any person owning or holding
land in excess of the ceiling area.
The respondent contends that in the present
case the two impugned gifts to a daughter and son respectively, and, therefore,
they come directly under the newly added exception introduced by Act 17 of 1972
and the exception is deemed to be effective from 16 August, 1968. The respondent
further contends that section 85 and section 85A of the Act lay down the
procedure for surrendering the excess land. Section 86 of the Act vests the
excess land in the Government. The vesting happens both on the determination of
the extent and other particulars of the lands, the ownership or possession or
both of which is or are to be surrendered.
The respondent contends that until then
namely the vesting of the land the owner of the land i.e. the respondent in
this case is the legal owner and his ownership or possession is not diverted.
He can therefore deal with the land in legal valid manner. A gift under the
last exception not being hit by the invalidity contemplated by section 84 of
the Act is a valid gift, which the respondent was competent to make.
The respondent contends that it is incorrect
to say that a gift coming within the last exception of section 84 is
ineffective after 1 January, 1970 inasmuch as such a contention will make
section 84 a dead letter after 1 January, 1970. It is said that it could not
have been the intention of the legislature which added the exception only on 1
November, 1972. The exceptions introduced by the Amendment Act of 1972 to
section 84 are three. The first is partition. The second is transfer to a
person who has been a tenant from 27 July 1960 up to the date of transfer.
The third is a transfer to a son or a
daughter or a grandson or granddaughter by a predeceased son or daughter. The
respondent submits that the intention of the legislature is that in all these
cases a person can transfer until he is divested of his ownership under section
86. The respondent further contends that the scheme of the Act and of the
Amendment Act of 964 1972 regarding gift is this. Until 16 August 1968 a gift
to any person is valid if the gift was out of natural love and affection. After
that date namely the amendment Act of 1972 only gifts to sons daughters and
grand children of predeceased children are valid. It is said that there is
nothing in the Act which says that an owner like the respondent cannot deal with
his land in a lawful and valid manner as long as he is the owner thereof or as
long as ownership is vested in him. Section 87 of the Act says that where any
person acquires any land after the date notified under section 83 by gift,
purchase, mortgage with possession, lease, surrender or any other kind or
transfer inter vivos or by bequest or insistence or otherwise and in consequence
thereof the total extent of land owned or held by such person exceeds the
ceiling area, such excess shall be surrendered to such authority as may be
Section 87 according to the respondent
indicates that after the notified date 1 January, 1970 valid gifts are
possible, as such gifts are saved by exceptions to section 84.
The Kerala Land Reforms Act Of 1964 came into
force on 1 April 1964. On 1 January, 1970 the Kerala Land Reforms Act as
amended by Act 35 of 1969 came into force. The respondent made gifts of his
excess land on 28 March, 1974. On 5 April, 1974 the Land Board served notice on
the respondent saying that' the gifts were invalid and directed the respondent
to surrender the excess Land in excess of the ceiling area as found on 1
On behalf of the State it is contended that
the view taken by the Single Judge in the present case has been over-ruled by a
Division Bench of the Kerala High Court in a decision reported in 1975 K.L.T.
171. It is also said by the appellant that the decision of the Division Bench
is affirmed by the Full Bench of the Kerala High Court in the Judgment reported
in 1976 K.L.T. 362.
Section 82 of the Act lays down the
principles governing the fixation of the land ceiling area in respect of different
categories of persons. Section 83 of the Act states that with effect from the
notified date no person shall be entitled to own or hold or to possess under a
mortgage lands in the aggregate in excess of the ceiling area. Section 84 of
the Act provides that all voluntary transfers effected after the publication of
the Kerala Land Reforms Bill 1963 in the Gazette, namely, 15 September 1963,
otherwise that in certain modes specified in section 84, shall be deemed to be
transfers calculated to defeat the provisions of the Act and shall be invalid.
Section 85(1) lays down that if any person owns or holds land in excess of the
ceiling area on the notified date, such excess shall be surrendered as provided
in the section. Section 86 lays down that on determination by the Land Board of
the extent and other particulars of the lands to be surrendered by the person
under section 85 the ownership or possession or both, as the case may be, of
the lands shall vest in the Government free from any encumbrance. Section 87
deals with cases where persons have acquired lands after the notified date by
transactions inter vivos, such as gift, purchase, mortgage with possession 965
lease, surrender or by bequest, or inheritance etc. and in consequence thereof
the total extent of land owned or held by such person exceeds the ceiling area,
such excess lands should also be surrendered to the prescribed authority and
that such land shall also vest in the Government under section 86.
These provisions in the Act establish the
dominant legislative intent of the imposition of the ceiling on land holdings
and the consequential obligation to surrender lands owned or held in excess of
the ceiling area on the notified date, namely, 1 January 1970. The legislature
noticed the possibility that after the proposal to introduce the Kerala Land
Reforms Bill 1963 published in the Gazette on 15 August, 1963, there might be
transactions of transfers with a view to circumventing the provisions of the
contemplated legislation. It is to meet the said situation that.
section 84 of the Act lays down that all such
voluntary transfers that have taken place subsequent to the date of publication
of the Bill, namely, 15 August 1963, otherwise than in the limited modes
specified in the said section, shall be deemed to be transfers calculated to.
defeat the provisions of the Act and shall be invalid. It is apparent that
section 84 was enacted with a view to making the provisions of sections 83 and
85 effective. For purposes of calculation of the ceiling area and the
determination of the extent of the excess land to be surrendered by persons
account will be taken not merely of the land actually owned and possessed by
him on the notified date, namely, 1 January 1970, but also of land voluntarily
transferred by him subsequent to the date of publication of the Bill in the
Gazette on 15 August 1963 by transactions not falling within the certain
categories mentioned in section 84. Section 84 prohibits persons from
transferring their excess lands after 15 August, 1963 except as provided in
The effect of sections 83 and 85 has been
noticed by this Court in the decision dated 20 August, 1976 in Civil Appeals
No. 907-909 of 1974 and Civil Appeals No.. 1354 and 1355 of 1975 (State of
Kerala & Ors. v. Philomina(1). It has been held there that the prohibition
against ceiling area under section 83 of the Act and the surrender of the
excess land under section 85 of the Act are both to be determined with
reference to the position as on the notified date under section 83 of the Act.
The crucial date for determining and surrendering the surplus land is 1 January
1970 and not any earlier date.
Transfers which have been effected between 15
August 1963 and 1 January 1970 will be treated as valid provided they come
within the excepted categories enumerated in section 84 of the Act. The lands
covered by such valid transfers will be treated as properties belonging to. the
transferors on the notified date for purposes of determining a ceiling area and
the extent of excess land to be surrendered by him. In respect of transfers
effected after 1 January 1970 the ceiling area applicable to a person and the
extent of his liability to (1)  1 S.C.R. 273.
966 surrender, which became crystallised on 1
January 1970, will determine the excess land to be surrendered. The obligation
to surrender the excess land owned or possessed by person as on 1 January 1970
cannot be affected by voluntary transfers even of the excepted varieties
mentioned in section 84 of the Act subsequent to the notified date. The
transferor will continue to be liable to surrender to the Government the full
extent of the excess land that was in his possession as on 1 January 1970.
The High Court erred in holding that the
respondent was not to surrender the land. The appeal is accepted for the
foregoing reasons and the judgment is set aside. Parties will pay and bear
their own costs.