of Orissa & Ors Vs. K. Srinivasa Rao
 Insc 229 (18
Shah & K.G. Balakrishnan Shah, J.
Appeal (civil) 3191 of 1995 Appeal (civil) 3192 of 1995
Appeal (civil) 2873 of 2001
APPEAL Nos. 3190, 3191 AND 3192 of 1995 :
married woman be termed as child and thereby member of her parents family? Or
-Whether she is member of her husbands family? -As per normal feature in the
Society-she would be member of her husbands family and not that of her parents.
it is the contention of the State Government that she would be member of her
parents family for the purpose of land ceiling under the Orissa Land Reforms
Act, 1960 (hereinafter referred to as the Act) on the basis of definition given
to the word family in Section 37(b) of the Act. The Full Bench of the High
Court negatived the same by holding thus (Para 13):- .I am inclined to take the
view that while defining family, the legislature was conscious of the position
of married daughters and in view of the rural and agricultural set up in this
part of the country, it was perhaps thought that ipso facto they, on being
married away, ceased to be members of the parents family and become members of
the husbands family and therefore no provision was thought necessary to be
made. Giving this interpretation to the statutory definition of the expression
family would not work out any violation either of the scheme of the legislation
or injustice to a daughter exposing her to double jeopardy, once by aggregating
her properties with her fathers holdings and then with her husbands holdings if
her husband happens to be a land holder as such.
order is under challenge in these appeals.
appreciating and deciding the controversy, we would refer to the relevant
provisions of the Act which have bearing on the questions involved.
Ceiling area-The ceiling area in respect of a person shall be ten standard
that where the person is family consisting of more than five members, the
ceiling area in respect of such person shall be ten standard acres increased by
two standard acres for each member in excess of five, so however, that the
ceiling area shall not exceed eighteen standard acres.
Persons not entitled to hold land in excess of ceiling area-On and from the
commencement of the Orissa Land Reforms (Amendment) Act, 1973 (Presidents Act
17 of 1973), no person shall, either as landholder or raiyat or as both, be
entitled to hold any land in excess of the ceiling area.
the purposes of this section all lands held individually by the members of a
family or jointly by some or all the members of a family shall be deemed to be
held by the family.
Definitions-In this Chapter- (a) person includes a company, family, association
or other body of individuals, whether incorporated or not, and any institution
capable of owning or holding property;
family in relation to an individual, means the individual, the husband or wife,
as the case may be, of such individual and their children, whether major or
minor, but does not include a major married son who as such had separated by
partition or otherwise before the 26th day of September, 1970.
to the amendment by Act No.29 of 1976, Section 37 was as under:-
(1) No person shall hold after the commencement of this Act lands as
land-holder or raiyat under personal cultivation in excess of the ceiling area
determined in the manner hereinafter provided.
Explanation-For the purposes of this Chapter a person
includes a company or any other corporate body or a joint Hindu Mitakshara
Section 37-B, no person is entitled to hold any land in excess of ceiling area.
Person includes family.
family is not entitled to hold land in excess of ceiling area and family in
relation to an individual would mean husband or wife as the case may be, and
where such family is consisting of more than five members then ceiling area in
respect of such family is to be increased by two standard acres for each member
in excess of five but that ceiling area shall not exceed eighteen standard
acres. As per the explanation to Section 37-B, all lands held individually by
the members of a family or jointly by some or all the members of a family are
deemed to be held by the family. Further, in case where land is held by a
family, the question-as to whether the holding of the family was in excess of
the ceiling area has to be decided in reference to the state of affairs as it
existed on and from the commencement of the Orissa Land Reforms (Amendment)
Act, 1973 i.e. 2nd October, 1973.
definition of the term family in Section 37(b) of the Act came for
consideration before this Court in Dibyasingh Malana v. State of Orissa and others [1989 Supp.(2) SCC 312].
In that case, the Court considered the contention that in view of partition in
families of the appellants in the year 1965, the land in ancestral property
which fell in the share of the appellants could not be clubbed with those of their
father. That contention was negatived on facts by observing that the main
provision containing the definition of the term family is to be found in the
first part of Section 37(b) namely family in relation to an individual, means
the individual, the husband or wife, as the case may be, of such individual and
their children, whether major or minor. Later part of Section 37(b) namely, but
does not include a major married son who as such had separated by partition or
otherwise before the 26th day of September, 1970, does not, on the face of it,
contain a matter which may in substance be treated as the fresh enactment
adding something to the main provision but is apparently and unequivocally a
proviso containing an exception. The Court further held thus: - Given its
proper meaning the words as such can only be interpreted to mean that it is
only such son who would get the benefit of the exception who had separated by
partition or otherwise before September 26, 1970 as major married son.
Court also negatived the contention that a son who is separated by partition or
otherwise from his father was himself an individual and if his land was clubbed
with that of his father he will be subjected twice to the provisions relating
to declaration of surplus land by holding that land of such son alone who does
not fall within the exception is to be clubbed with that of his father and with
regard to land which has been so clubbed the son obviously can not be treated
as another individual in his own right for purposes of declaration of surplus
land. Only such son who falls within the exception will be liable to be dealt
with as an individual in his own right, as his land has not been clubbed with
that of his father. The Court further observed, suffice it to say, so far as this
submission is concerned that none of the appellants in these appeals is a
married daughter and as such we do not find it necessary to go into this
question. As the question-whether married daughters holding of land could be
clubbed with her parents was kept opened, it has given rise to the present
this background, we would consider the meaning of the term family in relation
to a married daughter as per the definition. Married woman is an individual and
as per the definition of word family, her family would consist of her-self, her
husband and their children whether major or minor. This would also be in
consonance with general understanding of the word family as well as status of a
married woman in the society. If she is holding land, she would be regarded as
a separate unit who will have to file a separate declaration in respect of her
holding and that of her family under the Act.
for the purpose of the Act, definition clause Section 2(21) inter alia provides
that person under disability means a widow or an unmarried woman or a woman who
is divorced or separated from her husband by a decree or order of a Court or
any custom or usage having the force of law. This definition would indicate
that a woman is considered to be a separate entity having her own individuality
and after marriage there is no question of clubbing her holdings with the
family of her parents.
considering the aforesaid definition even if a married woman who has separated
from her husband by a decree or order of a court or under any custom or usage
having the force of law and staying along with her parents, it would be
difficult to hold that she is a member of her parents family. After marriage,
she looses the status of being member of her parents family. As against this, a
major son after marriage would not automatically cease to be a member of his parents
family. Therefore, the phrase children, whether major or minor as mentioned in
the definition of the word family is required to be given reasonable meaning as
understood in popular sense of the word. That appears to be the reason why the
Legislature has not made any provision either excluding or including married
daughters land holdings in her parents family, otherwise the definition of the
word family would not be workable. For the married son, the Legislature has
provided that his holdings of the land would not be clubbed if he is a major
married son who had separated by partition or otherwise before 26th September, 1970. This also appears to be normal
phenomenon with regard to the family in the society. It is to be stated that
prior to the substitution of Section 37 and introduction of Sections 37-A and
37-B by Act 29 of 1976, person included a company or any other corporate body
or a joint Hindu Mitakshara family. The legislative intent for this amendment
appears not only to include the family which is known as joint Hindu Mitakshara
family, but also to include other families which may not be covered by the
concept of Hindu Mitakshara family and non-Hindu families.
it would be difficult to presume that Legislature ever intended to cover
married daughter, whose family is that of her husband, for the purpose of
clubbing her land holdings with that of her parents. If the contention of the
learned counsel for the appellant is accepted, holdings of a married daughter
would be required to be included in her parents family as well as in the
holdings of her husband and her children and this would lead to absurdity and
unintended injustice to a woman. The object and reason for substituting Section
37 and incorporating Sections 37-A and 37-B is with a view to imposing a
ceiling on the aggregate area of land held by all the members of a family. For
achieving that object, it is not necessary to include married daughters
holdings in the holdings of her parents by stating that she is major child of
her parents. For the purpose of family she becomes part and parcel of her husbands
family and that is the common notion and understanding. Hence, in our view, the
interpretation given by the High Court is just and reasonable. It is also
established rule of interpretation of a statute that court will interpret a
statute as far as possible, agreeable to justice and reason, and avoid imputing
to the legislature, an intention to enact a provision which flouts notions of
justice and norms of fair play unless a contrary intention is manifest from the
words plain and unambiguous [Re. Madhav Rao Scindia v. Union of India, AIR
1971 SC 530].
case, the impugned judgment of the High Court excluding married daughters from
the concept of family of her parents is based on interpretation of term family
given in the local law which is thereafter consistently followed and,
therefore, at the fag end of the implementation of Orissa Land Reforms Act, it
would not be proper to disturb the course of decisions by interpreting that
provision differently. A different view would not only introduce an element of
uncertainty and confusion, it would also have the effect of unsettling orders
and/or transactions which might have been entered into on the faith of those
result, these appeals are dismissed. There shall be no order as to costs.
C.A. No. OF 2001 (Arising out of SLP (C)
No.6099/92) Leave granted.
this appeal, the question which was considered by the High Court (paragraph 5
of the judgment) reads thus: - For getting a separate ceiling area distinct
from his father, petitioner is to prove that he as a major married son had
separated by partition or otherwise before 26.9.1970. Question is whether
majority of petitioner, his marriage and separation are to be taken into
consideration independently of each other to have happened before 26.9.1970 or
the separation is required to be as a major married son. If all the three are
to be taken into consideration independently, petitioner can succeed in getting
a separate ceiling by proving his marriage in 1969, as claimed by him. If,
however, majority and marriage are to precede separation, petitioner would fail
in his claim even if his marriage in 1969 is accepted.
Court thereafter considered the decision rendered by this Court in Dibyasingh Malana
(supra) and held that this Court arrived at the conclusion that for getting
benefit of exclusion clause he must be major married son who as such had
separated by partition or otherwise before 26th September, 1970. In the said
case, the Court has approved the decision rendered by the Full Bench of the Orissa
High Court in the case of Nityananda Guru v. State of Orissa (AIR 1983 Orissa 54 FB). In Nityanandas
case in paragraph 2, it has been specifically mentioned that Nityananda Guru
had three sons and three daughters; admittedly, none of the sons was major and
married on the cut off date; and by a registered deed of partition dated 31st December, 1965, the lands were allotted to the
shares of the sons and daughters.
that circumstances, the Court held that in view of the definition of family
contained in Section 37, the land of such sons would be clubbed with the lands
held by the parents in determining the ceiling area. In Dibyasinghs case also,
it has been recorded in paragraph 3 that according to the appellants, partition
in the respective families had taken place in the year 1965. Objections were
filed asserting inter alia that in view of the partition in the families of the
appellants in the year 1965, the lands in the ancestral properties which fell
in the share of the appellants could not be clubbed with those of their father.
contention was not accepted in view of the definition by holding that such of
the major married sons who as such had separated by partition before the cut
off date as contemplated by the definition of the term family were allotted
separate ceiling units but so far as the appellants were concerned, their
shares were clubbed with those of their father and only one ceiling unit was
allotted as contemplated by the relevant provisions of the Act. In that
context, the Court decided the matter and interpreted the definition of the
word family, but it is nowhere laid down that for getting benefit of the said
exclusion clause, such son must be first major, thereafter he should get
married and subsequently should get himself separated by partition or otherwise
prior to the cut off date. In some cases, son may be major, he may get himself
separated prior to the cut off date and he may get himself married subsequently
before the specified date. That would not mean that he is not entitled to get
benefit of the said provision. Only requirement of exclusion clause is that
before the cut off date, such son should be major, married and separated by
partition or otherwise. In short, for the purpose of the land holding under the
Act, the term family does not include such a son, who is major, married and
separated by partition or otherwise prior to cut off date.
this view of the matter, this appeal is allowed and the impugned judgment and
order passed by the High Court is set aside. As the High Court has not decided
the matter on merits, it is remitted back to the High Court for decision in
accordance with law. There shall be no order as to costs.