Machinjeri (Deceased by Lrs) and ors. Vs. State of Kerala and ors. - Court Judgment

Viswanatha Iyer, J.

1. The legal representatives of the deceased declarant are the petitioner. The reference to the Full Bench was occasioned by the doubt entertained by a learned single Judge of this court in a related matter, C.R.P. No. 1215 of 1982 (which we are disposing of separately) that Section 84(1 A) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) hereinafter referred to as the Act, does not enable exclusion of the lands gifted by the declarant between January 1, 1970 and November, 5, 1974 from his accountable holdings in determining the extent of surrenderable area under the ceiling provisions of the Act. The learned Judge was inclined to take the view that the provision was intended only to protect the interest of the donee and not to confer any benefit on the donor. In other words, the view taken was that after the amendment 'it was not open to the Taluk Land Board to accept such a choice' (i.e. to surrender the gifted lands) 'made by the declarant because the transferees (or the donees) have valid title under the gift deed'; but the declarant himself cannot claim reduction in the extent of his holding by excluding the lands gifted from his accountable holdings as on 1-1-1970.

2. The declarant in this case, the pre-decessor of the petitioners, one Unniankutty Haji, held an extent of 62.88 acres equivalent to 42.14 standard acres as on the relevant date namely 1-1-1970. He was entitled to exemption over an extent of 2.88 acres equivalent to 1.88 standard acres under Section 81. The ceiling area applicable to him under Section 82(b) of the Act was 15 acres or 10 standard acres. The order impugned of the Taluk Land Board therefore directed him to surrender an extent of 45.60 acres of land, in proceedings initiated under Section 85 of the Act.

3. The declarant had made various gifts to his major children between 1-1-1970 and 5-11-1974. The precise extent of the lands covered by these gifts is not available though it is stated to be around 31.06 acres. The declarant claimed that in computing the extent of his holdings as on 1-1-1970 for the purpose of reckoning the surrenderable area, i.e. area held by him in excess of the ceiling limit prescribed by Section 82(b), the lands gifted were liable to be excluded by virtue of Section 84(1 A). The Taluk Land Board did not deal with this claim properly, though by the time it passed the order on 29-10-1982, the Kerala Land Reforms (Amendment) Act 27 of 1979 had been enacted introducing Section 84(1A) into the Act with retrospective effect from 1-1-1970.

4. Before dealing with the question raised for consideration, it is necessary to refer to the scheme of the Act and the legislative history behind Section 84(1 A). The provisions relating to ceiling on lands held by a person are contained in Chapter III of the Act. Section 81 deals with exemptions to be allowed to a declarant in computing the extent of his holdings. Lands comprised in gifts made between 1-1-1970 and 5-1 l-1974do not find a place in these exemptions and it is this fact that led the learned single Judge to entertain his doubt as mentioned earlier. Section 82 of the Act prescribes the ceiling area admissible for different classes of persons/families. Section 83 lays down that no person shall own or hold land in excess of the ceiling limit with effect from the date notified. The date notified is 1-1-1970. Section 84 as it stood after the Amendment Acts 35 of 1969 and 17 of 1972dealt with voluntary transfers effected by a person during certain specified periods. Subsection (1) lays down that all voluntary transfers effected by a person after 15-9-1963 (when the Kerala Land Reforms Bill was published) inter alia, otherwise than by way of gift to sons or daughters, or sons or daughters of a pre-deceased son or daughter, or by way of partition shall be deemed to be transfers intended to defeat the provisions of the Act and shall be invalid. To put it positively, the effect of the provision is that bona fide partitions, and transfers by way of gift to major children or grandchildren are treated as valid and binding and the lands covered by such partitions and gifts are liable to be excluded from the total holdings of the declarant in the computation of the ceiling area. The section did not specify any outer limit within which the partition or gift should have been made and described them only as those made after 15-9-1963. The question therefore arose whether lands covered by gifts executed after 1-1-1970, but before the date on which the concerned Land Board determined the extent of land to be surrendered by the declarant could be taken into account in computing the extent of holdings of the declarant. A learned single Judge of this court in the decision in C.R.P. No. 734 of 1974 held that such gifts are not invalidated by Section 84 and therefore if the declarant ceased to hold any excess land by virtue of a gift executed by him to his major children before the order which occasioned the vesting was passed, those lands will be excluded in the reckoning of the ceiling area. This decision rendered on 10th October, 1974 was soon overruled by the decision of a Division Bench of this court rendered on 5-11-1974 in Narayanan Namboodiri v. Taluk Land Board, Perintalmanna, 1975 Ker LT 171. The Bench held that under Section 83 of the Act, 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 with effect from the notified date, namely 1-1-1970. Where a person owned or held land in excess of the ceiling area on that date, such excess land was liable to be surrendered as prescribed in Section 85. Therefore any transfer of land effected by a person after 1-1-1970 could only be subject tohis liability to surrender the excess land. He cannot avoid liability to surrender such excess land by any mode of transfer after 1-1-1970, though such a transfer may be valid under Section 84. This was because the ceiling area had to be determined on the basis of the ownership or possession as on 1-1-1970, No doubt the transfer may not be invalid for all purposes, but it will have to be ignored in the matter of fixing the ceiling limit. The effect of Section 84 was only to deal with transfers effected after 15-9-1963 up to the date notified for the purpose of Section 83. Therefore, transfers effected after 1-1-1970 cannot be taken note of in fixing the surrenderable area of the declarant under the provisions of the Act.

5. The view taken in this decision was affirmed by a Full Bench of this court in Ayidru v. State of Kerala, 1976 Ker LT 362 where the Full Bench declared the effect of Section 84 to be that while the transfers after 1-1-1970 will not prevail against the claim of the State Government to enforce against the transferor his liability for surrender of the full extent of the excess land calculated as on 1-1-1970, the transactions will be treated as valid in all other respects, that is inter partes, whereas all other transfers will be treated as wholly invalid.

6. The Supreme Court reversed the decision in C.R.P. No. 734 of 1974 in Civil Appeal No. 1177 of 1975 reported as State of Kerala v. Gangadharan, 1977 Ker LT 237 : (AIR 1977 SC 311) where the court held that the crucial date for determining and surrendering the excess land was I-1-I970, and thereby affirmed the view taken by this court in Narayanan Namboodiri (1975 Ker LT 171) and Ayidru (1976 Ker LT 362) (FB). In the event, the position was that gifts made by a declarant after 1-1-1970 to his major children or grandchildren did not qualify for any benefits by way of reduction in the ceiling area applicable to him.

7. This state of affairs created an anomaly. In the case of Hindu joint families, the holdings of the family liable to be reckoned for the purpose of fixing its ceiling limit constituted the aggregate of the ceiling limits of the various units comprised in the family,and thereby the surrenderable area got diminished. However, in the case of other communities not governed by the Hindu Law or in which the joint family system was not in vogue, the family could not get any such benefits as the children did not get any right by birth. The matter had been discussed earlier on an All India level at the Chief Minister's Conference held on July 23, 1972, when it was resolved that major children should be treated as separate units for the purpose of application of ceiling and that there should be no discrimination between major children governed by different systems of perosnal law. The amendments by Act 17 of 1972 were intended to effectuate these national policy guidelines, but they did not achieve the purpose in view of the decisions referred to above. The Legislature therefore intervened again introducing Sub-section (1A) of Section 84 as also Sub-sections (10) to (12) of Section 85 by Act 27 of 1979, with retrospective effect from 1-1-1970. We may extract the relevant portions of the Statement of Objects and Reasons for the purpose of reference.

'6. According to Section 84(l) of the Act as amended by Act 17 of 1972, gifts made in favour of sons or daughters or sons or daughters of predeceased sons or daughters by persons owning or holding land in excess of the ceiling area are valid. The amendment by Act 17 of 1972 came into force on 2-11-1972. In the judgment dated 5-11-1974 reported in 1975 Ker LT 171 (Narayanan Namboodiri v. Taluk Land Board) the Kerala High Court held that the consequences arising from the transferor's liability to surrender his excess land, the extent and identity of which are to be determined on the basis of the state of affairs existing on 1-1-1970, cannot be avoided by any mode of transfer even of the categories exempted under Section 84. In view of the judgment all gifts in favour of sons and daughters and sons and daughters of predeceased sons and daughters, who were either major members or married minors on 1-1-1970, effected during the period between 1-1-1970 and 5-11-1974 have become invalid.

7. The intention of the amendment made in Section 84 by Act 17 of 1972 was to exempt giftsmade in favour of sons and daughters and sons and daughters of predeceased sons and daughters at any time prior to the vesting of the excess lands in Government under the orders of the Land Board or the Taluk Land Board.

8. According to the guidelines drawn up on the basis of the conclusions of the Chief Ministers' Conference on ceiling on agricultural holdings held on July 23, 1972, every major son should be treated as a separate unit for the purpose of application of ceiling and it should be ensured that there is no discrimination between major children governed by several systems of personal laws.

9. Persons governed by personal laws recognising joint family system which existed on 1-1-1970 get right to property by birth and the Act allows a member of such joint family to hold lands up to the ceiling limit even after 1-1-1970 as if a partition had been effected on 1-1-1970. Major children belonging to families not governed by the joint family system do not acquire any right to the properties of their parents and there was no provision in the Act to allow them any share. This had resulted in discrimination between persons governed by different personal laws by adversely affecting persons governed by personal laws under which no joint family system existed.

10. It was brought to the notice of Government that a large number of persons belonging to families not governed by the joint family system had made gifts in favour of sons and daughters and sons and daughters of predeceased sons and daughters after 1-1-1970 and before the date of the judgment under the belief that they were legally entitled to do so. The all India policy laid down in the guidelines drawn up on the basis of the Chief Ministers' Conference was against the discrimination based on different systems of personal laws. The 1972 Amendment Act was intended by the Legislature to effectuate the national policy guidelines. But it could not be given effect to due to the judgment dated 5-11 -1974. It was therefore decided to insert a new Sub-section (1 A) to validate such gifts.'

8. The intention behind the introduction of Sub-section (1 A) in Section 84 is therefore obvious, namely that it was to benefit the declarants by excluding the lands covered by gifts effected after 1 -1 -1970 from the computable extent of their holdings. The benefit should go to the donors by reducing the extent of their holdings by the extent of the lands covered by the gifts executed between 1-1-1970 and 5-11-1974. It was not really meant for the mere protection of the donees as such protection was already available by virtue of the decisions of this Court. In fact so far as our information goes, -- and this was not disputed before us -- the amendment had been understood to have this effect by all concerned and computation of ceiling area made accordingly, despite the doubt expressed by the learned single Judge in his referring order in the related case. This court had also understood it in the same manner as could be seen from the judgments of Bhat, J. in Sankara Pillai v. State of Kerala, 1982 Ker LT 161, and Narendran, J. in Krishna Perumud-araya v. State of Kerala, 1983 Ker LT 981.

9. This was the way in which Section 84(1A) was being administered by the various Land Boards. We must mention here that the learned Additional Advocate General appearing for the State also took the same line on behalf of the State, that Section 84(1 A) postulated a benefit to the donor by reducing the extent of his holdings as on 1-1-1970 by the extent of the lands covered by gifts of the nature mentioned therein. In fact the learned Additional Advocate General supported the case of the petitioners regarding the interpretation to be placed on the provision, and did not seek to support the view expounded in the referring order of the learned single Judge.

10. However and in view of the doubts expressed in the referring order, we are dealing with the matter on the merits.

11. The Statement of Objects and Reasons to the Amendment Act 27 of 1979 which we have extracted earlier gives an indication of what the Legislature wanted to achieve. It is permissible to look into the circumstances which prevailed at the time when the law was passed and which necessitated the passing ofthat law, for determining the purpose or object of the legislation. (Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114 at page 2119). The scope and effect of Section 84(1 A) has therefore to be adjusted in the background of the Legislature history which we have referred to earlier after ascertaining the mischief which was sought to be remedied and how it was achieved. The interpretative process in such a case should take the course suggested by Lord Reid in Black-clawson International Ltd. v. Papierwerkewaldh of--Aschaffenburg Ag. (1975) I All ER 810.

'One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself in the shoes' of the maker or makers and take into account relevant facts known to them when the document was made. The same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind.

It has always been said to be important to consider the 'mischief which the Act was apparently intended to remedy. The word 'mischief is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act..........'

Viewed in this angle, in the light of the object sought to be achieved by the amendment, Section 84(1 A) operates to exclude the extent of lands covered by the transfers made mention of therein from the accountable holdings of the declarant as on 1-1-1970.

12. It must also be noted that if it was intended merely to protect the donees, thelegislative exercise of an amendment was unnecessary as the donees already stood protected by the decisions in Narayanan Namboodiri (1975 Ker LT 171) and Ayidru (1976 Ker LT 362) (FB). The transfers have been held valid inter partes, though with the caution that the protection afforded does not extend as to defeat the ceiling provisions by making the donee immune from surrendering any land, if the declarant himself is not in possession of sufficient land to make up the surrenderable area. The purpose of Section 84(1 A) is effectuated by reading it as one intended to benefit the donor by giving credit for the extent of the lands gifted during the specified period. This is only an extension of the benefit already conferred by Sub-section (1) in relation to gifts executed up to 1-1-1970.

13. That Section 84(1 A) bears this interpretation is also clear from Sub-sees. (10) to (12) of Section 85 which were introduced along with Section 84(1 A) as also Rule 15A and form No. 7A of the Kerala Land Reforms (Ceiling) Rules. A perusal of these provisions indicates that they are intended to effectuate the provisions of Section 84(1A) and the exclusionary provisions contained therein of lands gifted between 1-1-1970 and 5-11-1974. Sub-section (10) of Section 85 provides for restoration of those lands which have been surrendered before the enactment of Act 27 of 1979 consequent on the introduction of Section 84(1 A). The intent of the Legislature, so far as Section 84(1 A) is concerned, is therefore, clear that it was meant to benefit the donors.

14. It is true that Section 81 was not amended. But Sub-sections (1) and (1A) of Section 84 and the Explanation to Sub-section (1) of Section 85 fall in a category of cases of transactions by the declarant where exclusion is granted only subject to certain conditions. The mode adopted by the Legislature to achieve the result, by amending Section 81 or by introducing Sub-section (1 A) in Section 84 is immaterial so long as the result is achieved. It is not as if an exemption or exclusion should he found only in Section 81 and nowhere else.

15. Any interpretation other than the one adopted by us will be doing violence to the legislative intent and the very purpose of the legislation. The Legislature can be presumedto have enacted a legislation to achieve an object and a purpose and not as a futile exercise. We have therefore no hesitation in upholding the contentions of the petitioners regarding the scope and effect of Section 84(1A). The Taluk Land Board has to recompute the surrenderable area of the declarant after excluding the lands covered by the gifts executed between 1-1-1970 and 5-11-1974, if they qualify otherwise for the exclusion under the terms of Section 84(1 A). The Taluk Land Board shall do so.

16. There are certain other points raised by the petitioners. There was a gift of 6.40 acres in R.S. No. 290 made by the declarant to his major son. The draft statement included the entire extent of 6.40 acres as part of the declarant's holdings. The original order passed by the Taluk Land Board on 13-11-1975 (which was set aside by this court in C.R.P. No. 2514 of 1975) rejected the claim for exclusion of this land on the mistaken impression that it was a gift after 1-1-1970, though actually it was a gift executed in 1962 as per the deed of gift No. 1089 of 1962. In the revision petition which the declarant filed before this court, namely C.R.P. No. 2514 of 1975, this court directed the Taluk Land Board to consider the matter afresh. The authorised officer who inspected the holdings thereafter recommended exclusion of the land from the holdings of the declarant. But the Taluk Land Board took a peculiar view. It noted that the gift deed mentioned the area of the land gifted as 7.53 acres. The difference in extent was treated as a pointer that the gift covered property different from that included in the draft statement.

17. There is an obvious fallacy and mistake in this assumption made by the Taluk Land Board. The basis of the declarant's title is a kana kychit of 1932. The declarant purchased the kanom right under various documents dealing with different parts of the property. The aggregate extent under those documents was 7.53 acres, though the kanom document dealt only with 6.40 acres. It was in these circumstances that the gift of 1962 also made mention of 7.53 acres. But the fact remained that the title to the property wastraced to the kanom deed of 1932 over an extent of 6.40 acres. Even the jenm assignment which the declarant obtained subsequently mentioned only 6.40 acres. It is not on record that the declarant was or had been in possession of any other extent in R. S. No. 290, or even, that the said survey number had actually a larger extent. There is absolutely no evidence on record to show that the declarant was or had been in possession of any extent over and above 6.40 acres in R. S. No. 290. If that be so, and since the gift was one to a major son in the year 1962, within the ceiling limit, the declarant was entitled to exemption over the entire extent of 6.40 acres. The reason stated to negative the claim was fallacious and contrary to record. The rejection of the claim for exclusion of this extent, particularly when the authorised officer himself had recommended the exemption, was illegal.

18. The Taluk Land Board had included as part of the declarant's holdings, 22 cents of land in Survey No. 300 /1 and 75 cents in Survey No. 300/3. The declarant's definite case was that he had no title or possession over those items. The reason which prompted the Taluk Land Board to treat these as the declarant's holdings was that one of the sons of the declarant was holding these along with some other lands gifted to him.

19. When the declarant has denied his title or possession over any property, the burden is on the Taluk Land Board to establish with reference to materials that the declarant did have title or possession over the property. It is not enough if they assert such title or possession. Section 83 prohibits a person from owning or holding or possessing under a mortgage lands in excess of the ceiling limits. Section 2(59) of the Act defines the expression 'to hold land' as to be in possession of land either as owner or as tenant or partly as owner and as tenant. There is no case for the respondents that the declarant was holding the aforesaid 97 cents of land in any of these capacities as owner or as tenant or as a mortgagee. In view of the provisions contained in S. 83, what the Taluk Land Board is bound to see before treating a particular itemas the declarant's is whether he is holding it as owner or as tenant or as mortgagee. When there is no case that the declarant was holding the 97 cents in any of these capacities, the Taluk Land Board was not justified in including these 97 cents as part of his holdings. This extent is liable to be deleted from the accountable holdings of the declarant.

20. Counsel for the petitioners did not press any of the other points raised in the revision petition. In the light of what is stated above, the Civil Revision Petition is allowed in part and the matter is remitted back to the Taluk Land Board for fresh decision in accordance with the observations contained in this judgment with the following directions.

a) The Taluk Land Board will exclude the lands covered by the gifts made by the declarant between 1-1-1970 and 5-11-1974 if they satisfy the conditions prescribed in Sub-section (1 A) of S. 84.

b) The Taluk Land Board shall exclude the entire extent of 6.40 acres in R.S. No. 290, 22 cents in R. S. No. 300/1 and 75 cents in R. S. No. 300/3 from the declarant's holdings.

c) The Taluk Land Board shall recompute the surrenderable area in the light of these directions. The petitioners will be entitled to exercise fresh option in relation to the area, if any, liable to be surrendered. The Taluk Land Board shall complete the proceedings as expeditiously as possible.

There will be no order as to costs.