Vengdasalam Pillai Vs. Union Territory
of Pondicherry [1985] INSC 27 (18 February 1985)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) CHANDRACHUD, Y.V. ((CJ)
CITATION: 1985 AIR 571 1985 SCR (2) 925 1985
SCC (2) 91 1985 SCALE (1)277
ACT:
The Pondicherry Land Reforms (Fixation of
Ceiling on Land) Act 1973 Sections 2(10) 4 and 7. Explanation IV.
"Family"-What is-Whether to conform
to conform of 'joint family' as known to Hindu Law-Property held by minor sons
after partition-Property purchased by wife form Sridhanam income Whether to be
included in 'holding' for determination of ceiling limit.
The Pondicherry Land Reforms (Fixation of
Ceiling on Land) Act 1973 was passed by the Legislative Assembly on October 5,
1973, received the assent of the President on September 22, 1974 and was
published I in the Gazette on October 14, 1974.
HEADNOTE:
The appellant's family consisted of himself,
his wife, and five children-three daughters and two sons. On March 17, 1970,
the appellant affected a partition of all his properties by a registered
document between himself and his two minor sons. The appellant retained 1.85.63
hectors of land for himself. The first son Was allotted 7.10.24 hectors and the
younger son was allotted 3.54.82 hectors. The appellant's wife purchased in
1958, 5.74.87 hectors of land by utilising her Sridbanam money.
On the failure of the appellant to file a
return under s. 7 (1) of the Act voluntarily, the Authorised Officer issued a
notice Form-4 under . 8(1) of the Act. The appellant thereupon filed a return
on December 12, 1915 stating that he and his wife were holding Only 7.67.91
hectors. Thereafter the Authorised Officer issued separate notices to the
appellant and his wife to file further representations, if any, and to appear
before him for enquiry. Separate representations were filed reiterating the
original stand that the lands allotted to the minor sons under the partition as
also the lands acquired by the appellant's wife with the Sridhanam amounts
could not be taken into account while computing the extent of the appellant's
holding. The Authorised Officer rejected these contentions and held that the
appellant was holding an extent of 18.26.28 ordinary hectares equivalent to
11.48.55 standard hectares of land and he was eligible to retain only 8.40.00
standard hectares.
926 Aggrieved by the said order, the
appellant preferred an appeal before the Land Tribunal, which allowed the
appeal taking the view that since the sons of the appellant had become divided
from him by the deed of partition executed in 1970, long prior to the appointed
day specified in the Act, and the lands standing in the name of the appellant's
wife belonged to her independently in her own separate right, there was no
justification for clubbing together the lands of the appellant with those of
his wife and sons, and that the definition of ' family" under s. (10) of
the Act was not attracted to this case, and the appellant was well within the
ceiling limit.
The State-respondent challenged the decision
of the Land Tribunal before the High Court in a Civil Revision Petition under
s. 50, which set aside the decision and restored the Order passed by the
Authorised Officer. The High Court held: (1) that a combined reading of In
definition of ' family" contained in s- 2(10) and the provision contained
in s. 4 (2), makes clear that notwithstanding any transaction of partition
entered into prior to the appointed day, the minor sons of a person will I for
the purposes of the Act, be Ideated as members of the family of such person
together with his wife and unmarried daughters. and (2) that in computing the
extent of the holding of the family" as defined in the Act (he separate
property of the wife had to be included by reason of the express provision
contained in s. 4 (2).
Dismissing the appellant's appeal, ^
HELD: 1. The High Court was right in holding
that the lands standing in the names of the wife and the two minor sons of the
appellant as their separate properties were also liable to be included in the
holding of the appellant for the purpose of fixation of ceiling under s. 4 of
the Act. [9 3 6F]
2. (i) The provisions of the Pondicherry Land
Reforms (Fixation of Ceiling on Land) Act 1973 are applicable to all holders of
Land in the Union Territory of Pondicherry irrespective of their religion,
community etc. It is therefore, fallacious to assume that the ' family"
referred to in the Act must conform to the concept of the joint family as known
to Hindu Law. The concept OF a joint family is totally foreign to personal laws
of some of the communities. [934F-G]
2. (ii) It is manifestly wrong to approach
the interpretation of the sections of the Act with the preconceived notion that
in using the expression "family", the Legislature had intended to
connote an undivided family as known to the Hindu Law and that after a
partition had taken place in a Hindu joint family there cannot be a family'
consisting of the father and his divided minor sons for the purpose of fixation
of ceiling under the Act. [934G] 927
2. (iii) The fact that the definition of
"family" contained in s. 2 (10) A does not treat the major sons of a
person as members of his family is a clearly pointer that an undivided Hindu
family was in the contemplation of the Legislature when it enacted the definition
section [934H; 936A]
3. Sub section (3) (a) of section 4 which
provides that in calculating the extent of land held by a member of a family or
by an individual person, the share of the member of the family or of the
individual person in the land held by an undivided Hindu family shall be taken
into account, furnishes a conclusive indication that the "family"
mentioned in the Act is wholly distinct and different from an 'undivided Hindu
family.' [935B] In the instant case, the circumstance that a partition had taken
place disrupting the joint family consisting of the appellant and his minor
sons is of no relevance in determining the total extent of the holding of the
appellant in accordance with the provisions of s. 2 (10) read with s 4 of the
Act. A special statutory unit consisting of the persons satisfying the
description contained in clause (10) of s. 2 as constituting a
"family" for the purpose of fixation of ceiling has been created. The
stress is only on the existence of the relationship, and unity of title or
jauntiness of holding in relation to properly are not essential elements. Under
the definition contained in s. 2 (10), a person, the wife or husband of such
person and his or her minor sons and unmarried daughters together constitute a
"family". [935C-D]
4. The position emerging from the provisions
of s. 2 (10) and s. 4(1) (2), is that the properties held by the minor sons of
the appellant individually as well as the lands separately owned by his wife,
purchased by her with her Sridhanam amounts, are all liable to be taken into
account while computing the total extent of holding of the family of the
appellant. [935F]
5. Explanation IV to s. 7 proceeds on the
footing that for purposes of computing the ceiling and determining the area of
surplus land to be surrendered. the lands held separately by the husband and
wife are to be pooled together. The liability to surrender excess land is to be
fixed in proportion to the extent of land held separately by the two spouses,
[936B]
6. The purpose of s. 4(4) is to peg down the
process of determination of ceiling area to the state of things that obtained
on the 'appointed day' and it is for the said purpose that the sub-section
provides that in calculating the extent of land held by and person, any land
which was transferred, by sale, gift or otherwise Dr partitioned by that person
after the appointed day but before the commencement of the Act, shall be taken
into account, as if such land had not been transferred or partitioned. [936D-E]
928
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 21 38 Of 1980 From the Judgment and Order dated the 16th November, 1979 of
Madras High Court in Civil Revision Petition No. 544 of 1978.
A.T.M. Sampath for the Appellant.
A.S. Nambiar for the Respondent.
The Judgment of the Court was delivered by
BALKRISHNA ERADI, J, With the obvious intent of falling in line with the rest
of the country in the matter of achieving the social goal of equitable
distribution of cultivable lands by the imposition of ceiling on agricultural
land holdings and distribution of surplus lands among landless persons, the
Legislature of the Union Territory of Pondicherry enacted-'The Pondicherry Land
Reforms (Fixation of Ceiling on Land) Act, 1973' (hereinafter called 'the
Act'), The questions arising for determination of some of the provisions of the
1) Act Before we proceed to refer to the relevant sections of the Act, we shall
set out in brief the material facts, which have given rise to the controversy
before us.
The appellant-Vengdasalam Pillai is married to
Smt.
Senbagevalli Ammal. Five children-three
daughters and two sons-were born to this couple. On March 17, 1970, the
appellant effected a partition of all his properties as between himself and his
two sons both of whom were minors at that time. This partition was evidenced by
a registered document. Under that document the appellant retained in his name
an extent of 1.85.63. hectares of land. The first son, Shanmugasundaram (minor)
was allotted 7.10.24. hectares and the younger son Trinivasan was allotted an
extent of 3.54.82. hectares of land. An area of 5.74.87 hectares stood
registered in the name of the appellant's wife Senbagevalli, the said land
having been purchased by her in 1958 by utilising her Sridhanam money.
The Act was passed by the legislative
assembly on October 5, 1974 and after it received the assent of the President
on September 22, 1974, it was published in the Gazette of Pondicherry on
October 14, 1974.
929 Since the appellant did not voluntarily
file a return under A section 7(1) of the Act, a notice in Form-4 was issued to
him by the Authorised Officer (Land Reforms), Karaikal under section 8(1) of
the Act. In compliance therewith the appellant filed a return on December
12,1975 stating that he and his wife were holding only 7,67.91 hectares of
land. Thereafter separate notices were issued by the Authorised Officer to the
appellant and his wife to file further representations, if any, and to appear
before him for enquiry on the dates specified therein. In response to these
notices, the appellant and his wife filed separate representations reiterating
their original stand that the lands allotted to the minor sons under the
partition as also the lands acquired by the appellant's wife with the Sridhanam
amounts could not be taken into account while computing the extent of the
appellant's holding. The Authorised Officer rejected these contentions and held
that the appellant was holding an extent of 18.26.28 ordinary hectares
equivalent to 11.48.55 standard hectares of land and since the appellant's
family consisted of himself, his wife two minor sons and three unmarried
daughters, he was eligible to retain only 8.40.00 standard hectares- D
Aggrieved by the aforesaid order passed by the Authorised Officer, the
appellant preferred an appeal in the Court of the Land Tribunal, Karaikal. That
appeal was allowed by the Land Tribunal which took the view that since the sons
of the appellant had become divided from him by THE deed of partition executed
in 1970, long prior to the appointed day specified in the Act, and since the
Lands standing in the name of the appellant's wife belonged to her
independently in her own separate right, there was no justification for
clubbing together the lands of the appellant and those belonging to his wife
and the two minor sons. The Land Tribunal held that since the two minor sons of
the appellant and the wife of the appellant were holding their lands as
independent owners, the definition of "family" under section 2(1())
of the Act was not attracted in this case and that the Authorised Officer ought
to have excluded the lands belonging to the sons and the wife of the appellant
while computing the extent of the holding of the appellant and fixed his
ceiling on the said basis. It was further held that on such computation the
total area of land held by the appellant was well within the ceiling limit and
hence there was no liability on his part to surrender any surplus land.
The correctness of the said decision of the
Land Tribunal was called in question before the High Court of Madras by the
Govern- 930 ment of the Union Territory of Pondicherry by filing a Civil
Revision Petition under section 50 of the Act. By the judgment now impugned
before us, the High Court allowed that revision petition, set aside the
decision of the Land Tribunal and restored the Order passed by the Authorised
Officer. The High Court held that on a combined reading of the definition of
"family" contained in section 2(10) of the Act with the further
provision contained in section 4(2), it was clear that notwithstanding any
transaction of partition entered into prior to the appointed day, the minor
sons of a person will, for the purposes of the Act, be treated as members of
the family of such person together with his wife and unmarried daughters. It was
further held that in computing the extent of the holding of the
"family" as defined in the Act, the separate properties of the minor
sons as well as the separate property of the wife had all to be included by
reason of the express provision contained in section 4(2) of the Act. In this
view, the High Court held that the Authorised Officer had acted fully in
accordance with law in clubbing together the properties of the appellant, his
wife and the two sons, who were minors on the appointed day.
Aggrieved by the said decision of the High
Court, the appellant has filed this appeal in this Court by Special leave. We
may now proceed to examine the relevant provisions of the Act. Section 2 is the
definition section.
Clause (4) thereof states that the expression
"appointed day' means the 24th day of January, 1971. The definition of
''family'' which is very important for the purposes of this case is contained
in clause (10) and it is in the following terms:- (10) "family", in
relation to a person, means the person, the wife or husband, as the case may
be, of such person and his or her minor sons and unmarried daughters.
'The only other definition to which we need
refer is that contained in clause (24), which states that " 'notified
date' means the date specified in the notification issued by the Government
under sub-section (1) of section 7." It is common ground before us that
the date so specified under section 7(1) is 3.1.1974.
It is under section 4 that the ceiling limits
of land holdings have been specified and it is necessary to reproduce the
section in it full. It reads;
931 "4(1)(a) Subjects to the provisions
of Chapter VI, the A ceiling area in the case of every person and in the case
of every family consisting of not more than five members, shall be 6 standard
hectares.
(b) The ceiling area in the case of every
family consisting of more than five members shall, subject to the pro vision of
Chapter VI, be 6 standard hectares together with an additional 1.2 standard
hectares for every member of the family in excess of five:
Provided that the total extent of land held
by any family shall in no case exceed twice the ceiling area referred to in
clause (a) (2) For the purpose of this section, all the lands 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 held by the family.
(3)(a) In calculating the extent of land held
by a member of a family or by an individual person, the share of the member of
the family or of the individual person in the land held by an undivided Hindu
family shall be taken into account.
(b) In calculating the extent of land held by
a family or by an individual person, the share of the family or of the
individual person in the land held by a firm, society or association of
individuals of individuals (whether incorporated or not) or by a company (other
than a non- agricultural company) shall be taken into account.
Explanation-For the purposes of this section-
(a) the share of a member of a family or of an individual person in the land
held by an undivided Hindu family, and (b) the share of a family or of an
individual person the land held by a firm, society or association of
individuals (whether incorporated or not), or by a company (other than a
non-agricultural Company, shall be deemed to be the extent of land- 932 (i)
which, in case such share is held on the appointed day would have been allotted
to such member, person or family had such land been partitioned, or divided in
proportion to the share held by such member, person or family, as the case may
be, no such day; or (ii) which, in case such share is acquired in any manner
whatsoever after the appointed day would be allotted to such member, person or
family if a partition, or division, in proportion to the share held by such
member, person or family, were to take place on the date of the preparation of
the draft statement under sub-section (1) of section 9.
(4) In calculating the extent of land held by
any person, any land which was transferred by sale, gift or other wise or
partitioned by that person after the appointed day but before the commencement
of this Act, shall be taken into account as if such land had not been
transferred or Partitioned as the case may be.
(5)(a) The land held by the public trust
referred to in the proviso to clause (30) of section 2 shall be deemed to be
held by the founder of the trust or his heirs or the family of the founder of
his heirs.
(b) In calculating the extent of land held by
such founder or his heirs of such family, the extent of the land held by the
public trust shall be taken into account.
(6) In calculating the extent of land held by
any person, the extent of land which may revert to such person immediately
after the death of any limited owner shall, during the lifetime of limited
owner, be excluded." Section 6 lays down that on from the appointed day,
no person shall. except as otherwise provided in this Act, but subject to the
provisions of Chapter VI, be entitled to hold land in excess of the exiling
area. The proviso to the said section is not material for the purposes of this
case, 933 Sub-section (1) of Section 7 requires every person, who, on the A
appointed day, held land in excess of the ceiling area to furnish to the
Authorised Officer within whose jurisdiction the holding of such person or the
major part thereof is situated, a return containing the particulars specified
in clauses (i) to (viii) thereof within thirty days from such date as may be
specified in the Notification issued by the Government in that behalf. Clause
(ii) reads:
"(ii) particulars of the members of the
family and of the land held by each member of the family." (underlining
ours) Explanation IV to sub-section (1) of section 7 is in the following
terms:- "Where in a family both husband and wife hold land separately and
the aggregate of such land exceeds the ceiling area. the extent of land to be
declared surplus by each of them shall bear the same proportion to the extent
of land held by them.
(2) The notification referred to in
sub-section (1) shall contain such particulars and shall be published in such
manner as may be prescribed." These are the only provisions of the Act
which have a direct relevance for deciding the questions raised in this case.
However, since the Counsel appearing on behalf of the appellant sought to
derive some assistance from the provisions contained in section 22(1) of the
Act, we may extract the said Sub-section also:- Section 22(1): "Except
where a person is permitted, in writing, by the authorised officer, a person, holding
land in excess of the ceiling area applicable to him under section 4, shall
not, after the commencement of this Act, transfer by sale, gift or otherwise or
make any partition of any land held by him or any part thereof until the excess
land, which is to be acquired by the Govt. under section 17, has been
determined and taken possession of by or on behalf of the Government." The
main argument advanced before us on behalf of the appellant was that since the
two minor sons of the appellant had become divided from their father as a
result of the partition effected under the document of March 17, 1970, they
could not be regarded as member 934 of the family of the appellant as on the
'appointed day' namely, January 24, 1971. On this basis it WAS urged that the
lands, the ownership in respect of which had become vested individually in the
two minor sons by virtue of the allotments in their favour at the partition
could not legally be included in the holding of the appellant for the purpose
of fixation of his ceiling under the Act. Relying on the provisions contained
in sub-section (4) of section 4 Counsel for the appellant contended that the
framers of the Act did . not intend to nullify transactions by way of partition
entered into before the 'appointed day' and it is only post appointed day
partitions and transfers that are to be ignored under that sub-section. Support
was also sought to be derived from the provisions contained in subsection (1)
of section 22, which prohibits partition and transfers by sale, gift etc. Of
any land held by a person having land in excess of ceiling area prescribed
under section 4 until the excess land to be acquired-by the Govt. under section
17 of the Act has been determined and taken possession of by or on behalf of
the Government.Another point pressed on behalf of the appellant was that the
properties separately owned by his wife in her own right by virtue of purchase
effected by her by utilising her Sridhanam amounts ought not have been clubbed
along with the lands belonging to the appellant in computing the appellant's
holding.
We see no force in any of the contentions
aforementioned.
The fallacy underlying the arguments advanced
on behalf of the appellant is that they proceed on the erroneous assumption
that the "family" referred to in the Act must conform to the concept
of the joint family as known to Hindu Law. The provisions of the Act are
applicable to all holders of land in the Union Territory of Pondicherry
irrespective of religion, community etc. The lands may be held by Hindus,
Christians, Muslims or by persons belonging to other religious faiths. All of
them are equally governed by the provisions of the Act. The concept of a joint
family is totally foreign to the personal laws of some of these communities. It
is, therefore, manifestly wrong to approach the interpretation of the sections
of the Act with the preconceived notion that in using the expression
"family", the legislature had intended to connote an undivided family
as known to the Hindu Law and that after a partition had taken place in a Hindu
joint family there cannot be a 'family' consisting of the father and his
divided minor sons for the purpose of fixation of ceiling under the Act. The
fact that the definition of ' family" contained in section 2(10) does not
treat the 935 major sons of a person as members of his family is a clearly
pointer A that an undivided Hindu family was not in the contemplation of the
Legislature when it enacted that said definition section. Similarly, the
provision contained i n sub-section (3)(a) of section 4 that in calculating the
extent of land held by a member of a family or by an individual person, the
share of the member of the family or of the individual person in the land held
by an undivided Hindu family shall be taken into account furnishes a conclusive
indication that the "family" mentioned in the Act is wholly distinct
and different from an 'undivided Hindu family.' The circumstance that a
partition had taken place disrupting the joint family consisting of the
appellant and his minor sons is, therefore, of no relevance in determining the
total extent of the holding of the appellant in accordance with the provisions
of Election 2(10) read with section 4 of the Act. That is because, the Act has
created a special statutory unit consisting of the persons satisfying the
description contained in clause (10) of section 2 as constituting a
"family" for the purpose of fixation of ceiling. The stress is only
on the existence of the relationship mentioned in the section and unity of title
or jointness of holding in relation to property are not essential elements for
attracting the applicability of the definition. Under the definition contained
in section 2(10), a person, the wife or husband of such person and his or her
minor sons and unmarried daughters together constitute a "family".
Section 4(2) expressly provides that for the
purpose of fixation of ceiling on the lands 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 held by the "family".
The result is that the separate properties of
the members constituting the statutory family are all to be treated as forming
part of the holding of the 'family' for the purpose of determination of the
ceiling area. Such being the position emerging from the provisions of section
2(10) and section 4(1)(2), the properties held by the minor sons of the
appellant individually as well as the lands separately owned by Smt.
Senbagevalli, wife of the the appellant by virtue of the purchase effected by
her with her Sridhanam amounts were all liable to be taken into account while
computing the total extent of holding of the family of the appellant.
Counsel for the appellant sought to rely on
the provision contained in Explanation IV to section 7 for contending that
there was no justification for including the separate properties of Smt.
Senbagevalli in the holding of the appellant's 'family'. We see nothing in 936
the said provision which lends support to the contention of the appellant. 'The
Explanation itself clearly proceeds on the footing that for purposes of
computing the ceiling and determining the area of surplus land to be
surrendered, the lands held separately by the husband and wife are to be pooled
together. All that the Explanation lays down is that when the aggregate of such
lands exceeds the ceiling area, the extent of the land to be declared surplus
by each of the spouses shall be fixed in proportion to the respective areas of
land separately held by each of them. In other words, the liability to
surrender excess land is to be fixed in proportion to the extent of land held
separately by the two spouses.
Counsel for the appellant also relied on the
provision contained in sub-section (4) of section 4 of the Act as furnishing an
indication that transactions of partition that have taken place before the
'appointed day' are not to be ignored and that only post appointed day
partitions are to be treated as ineffective. We find no force in this argument.
The purpose of section 4(4) is to peg down the process of determination of
ceiling area to the state of things that obtained on the 'appointed day' and it
is in that context and for the said purpose that the sub-section provides that
in calculating the extent of land held by any person, any land which was
transferred, by sale, gift or otherwise or partitioned by that person after the
appointed day but before the commencement pf the Act, shall be taken into
account, as if such land had not been transferred or partitioned.
The conclusion that emerges from the
foregoing discussion is that the High Court was perfectly right in holding that
the lands standing in the names of the wife and the two minor sons of the
appellant as their separate properties were also liable to be included in the
holding of the appellant for the purpose of fixation of ceiling under Section 4
of the Act.
The appeal accordingly fails and is dismissed
but in the circumstances without costs.
A.P.J. Appeal dismissed.
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