T. Mammad and others Vs Taluk Land Board and others

@JUDGMENTTAG-ORDER

K.P. Balanarayana Marar, J.@mdashRevision arises from the order of Taluk Land Board, Thaliparamba in TLB. 1716/73/TBA dated 28-6-1988. Ceiling proceedings were initiated against revision petitioner. By the impugned order revision petitioner was directed to surrender 160.54 acres of land held by him in excess of the ceiling area. Petitioner has three wives and children in them. The first wife is Kattitta Valappil Pathu in whom petitioner has three children. His second wife is Pallakkanakath Pathu in whom he has 4 children. He has three children in his third wife Mariyam. All the children were minors as on 1-1-1970. It is alleged that there were different statutory families on that date. The Land Board taken into consideration one wife with one of the minor children as the statutory family for the purpose of the ceiling provisions and determined the ceiling area on that basis. Petitioner was found entitled to retain 15 ordinary acres of land and an extent of 160.54 acres was found liable to be surrendered by the order of the Taluk Land Board. Petitioner challenged that order in CR. P. 2131/87. The revision was allowed and the case remanded to the Taluk Land Board for fresh disposal. After remand the Taluk Land Board by the impugned order directed petitioner to surrender an extent of 97.16 acres more on the basis that the statutory family of petitioner consists of one of his wives Pathu and her minor child. That order is under challenge in this revision. When the revision came up before a learned Single Judge counsel for petitioner submitted that the Division Bench decision in Kesava Menon v. State of Kerala (1976 KLT 408) requires a reconsideration. The learned Judge on a consideration of that decision and other judicial precedents was of the view that the principles highlighted in Kesava Menon''s case and in Mayilammal''s case (1984 KLT 962) require reconsideration. The revision was "there fore adjourned u/s 3 of the High Court Act to be heard by a Bench of two Judges. That is how the matter has come up before us.

2. Heard counsel for petitioner and Government Pleader.

3. The main grievance of revision petitioner is that the Taluk Land Board by the interpretation of the Explanation to Section 82 (6) has deprived the members of the family of their legitimate extent which could be retained by the family by treating only one of the wives and the minor son in that wife as the statutory family. The contention is that the other two wives and the children born in them are not reckoned for calculating the ceiling area of petitioner and his family. A Division Bench of this Court in Kesava Menon''s case (supra) and a learned Single Judge in Mayilammal''s case (supra) held that the husband cannot be a member of both the families at the same time in case he has two wives and it inevitably follows that his lands can be taken into account only for calculating the ceiling area of the family to which he is deemed to belong. On hearing counsel and on a proper analysis of Explanation I to Section 82 (6) of the Land Reforms Act and the authorities cited at the bar we see no reason to differ from the conclusion of this court in the two decisions aforementioned. We are in complete agreement with the views expressed therein

4. Explanation I to Section 82 (6) which had come up for consideration in those decisions reads:

For the purpose of this section, where a person has two 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.

By that Explanation the husband and one of the wives and their unmarried minor children shall be deemed to be one family. The husband has to name one of the wives for this purpose. Each of the other wives and her unmarried minor children will be deemed to be a separate family. As observed by this Court in Kesava Menon''s case a fiction has been introduced by Explanation 1 by which the husband is allowed to treat the two wives with their children as constituting two separate families. The husband can be a member of only one of such families to be chosen by him and not of both the families simultaneously. 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. Explanation I is an explanation to the entire Section 82 including subsection (2) which provides that 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. The result is that the lands owned or possessed by the other wives and members of their family will not be taken into account for the purpose of fixing the ceiling area in respect of the family constituted by the husband, one of his wives and the unmarried minor children in that wife which constitutes the statutory family for the purpose of computing the ceiling area. The position therefore is that the husband cannot be a member of more than one family at the same time and his lands cannot be taken into account for calculating the ceiling area of the family to which he is not a member. In other words 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 words, 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.

5. The learned Single Judge in the order of reference observed that the second limb of Explanation I cannot be said to have been introduced without any purpose and that limb should be allowed to operate the field allotted to it. The learned Judge further observed:

When once the legislature wants to treat an imaginary state of affairs as real, we must, unless prohibited from doing so, also imagine as real the consequences and incidents, which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.

It is in the light of these observations that the learned Judge felt that the decisions in Mayilammal''s case and Kesava Menons'' case require reconsideration.

6. Learned counsel for revision petitioners has drawn our attention to some decisions of the Supreme Court in support of his contention that Explanation I to Section 82 has to be read along with the main Section and effect has to be given to the legislative intent. The Supreme Court in The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, held that the description of a provision such as Explanation cannot be decisive of its true meaning or interpretation which must depend on the words used therein, but when two interpretations are sought to be put that which fits the description which the legislature has chosen to apply to it has to be adopted, provided it is consistent with the language employed. The same view was expressed in Hiralal Rattanlal Vs. State of U.P. and Another etc. etc., wherein it was held that if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect has to be given to legislative intent notwithstanding the fact that the legislature named that provision as an Explanation. In all these matters, the courts have to find out the true intention of the Legislature. In M/s. Ahpali Pharmaceuticals Ltd. v. State of Maharashtra ( AIR 1989 SC 2277) it was held that the basic principle is that in case of a conflict between the body of the Act and the Schedule, the former prevails. Expressions in the Schedule cannot control or prevail against the express enactment and in Case of any inconsistency between the schedule and the enactment, the enactment is to prevail.

7. It is contended by learned counsel for petitioners that the Explanation cannot widen or restrict the scope of the section which enables a family of five members to possess 10 standard acres which shall not be less than 12 and more than 15 acres in extent and in the case of a family consisting of more than five members the extent has to be increased by one standard acre for each member in excess of five. So however that the ceiling area shall not be more than 20 acres in extent. The benefit of this provision is denied to the wives who are not named by the husband and the children born in those wives. The intention of the legislature, according to the counsel is to benefit those members also by increasing the extent by one standard acre up to a maximum of 20 acres in extent. But Explanation I to Section 82 has introduced a legal fiction by which the husband and one of the wives named by him and their unmarried minor children alone shall be deemed to be one family. The other wife or each of the other wives and her unmarried minor children shall be deemed to be a separate family. This deeming provision has been introduced for the purpose of ascertaining the maximum extent of land which a family can possess. Family has been defined in the Act as husband, wife and their unmarried minor children or such of them as exist. The intention of the Legislature in introducing the Explanation as we have understood it is only to confine the family to the husband, wife and their unmarried minor children for the purpose of Section 82 of the Act. If that be so, more than one wife cannot be included in such family. The Supreme Court in The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, held that the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. In Commissioner of Income Tax, Delhi Vs. S. Teja Singh, the Supreme Court observed that it is a rule of interpretation settled that in construing the scope of legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. Viewed in the light of the principles enunciated by the Supreme Court we find no difficulty in holding that the purpose of the deeming provision in the Explanation is only to confine the family to the husband and one of the wives and her children as a separate family. We are in complete agreement with the views expressed in Kesava Menon''s case (supra) and Mayilammal''s case (supra). Those decisions do not therefore require reconsideration.

8. In this connection learned counsel would point out that the other wives and their children will be deprived of their legitimate right to get a larger area which could be retained by the family in case they are also reckoned as members of the family. 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. That the children in the other wives could have inherited a larger area provided a larger extent is permitted to be retained by the husband is no reason to hold that the other wife or wives are deprived of any legitimate right. This argument is therefore without any substance.

9. The husband in the present case has not nominated any of his wives as contemplated in the Explanation. The Land Board has therefore treated one of the three wives for the purpose of computing the ceiling area. In that wife the husband has only one child. But the family can retain 10 standard acres, so however that the area shall not be less than 12 and more than 15 acres in extent. It appears that the declarant wanted one of the other wives to be nominated and her children included as members of the family. This request is seen to have been declined by the Land Board. By the rejection of that request no prejudice is caused to declarant since be has only three children in that wife. The total members of the family will not be more than five and there will not be any difference in the total extent which could be retained by the declarant and the family named by him. The result is that the declarant and his family will be entitled to retain only 10 standard acres which shall not be less than 12 and more than 20 acres in extent. The Taluk Land Board by its order dated 28-8-1986 has directed surrender of an extent of 160.54 acres of land being surplus land from the statement giver. That order was challenged in C.R.P. 2131/86 before this Court. That was allowed in part and the order of the Taluk Land Board was set aside and the matter remanded for fresh decision in the light of the observations contained therein. After remand the matter was again considered by the Taluk Land Board and by the impugned order dated 28-6-1988 the extent of the land to be surrendered was determined as 97.16 acres and the Tahsildar, Thaliparamba was directed to take possession of this extent of land in addition to the land taken possession of earlier. The Land Board had issued notice to all the tenants who claimed to be in possession. It was after hearing them and considering their claims that the impugned order was passed. All the claims of the tenants except that of one Adam and Kattittavalappil Ayamed and Nabecza were allowed by the Board. Regarding the claim of Adam, the Board stated that the claim was made on the basis of a document executed by one Kunhammed and a file is pending against him. His claims were not therefore finalised. The claim of Kattittavalappil Ayamed and Nabeeza was rejected. This rejection of the claim is not proper in view of the order of this Court in C. R. P. 1891/88. That was a revision by Ayamed and Nabeeza against the order of the Taluk Land Board dated 28-6-1988. They claimed to be in possession of an extent of 15 acres on the basis of a document of the year 1973. This Court held that the transaction is not hit by the provisions contained in the Amending Act 35 of 1979. The Taluk Land Board was therefore directed to delete the above extent of land from the account of the declarant. Learned Government Pleader would submit that this extent has already been deleted. But no proceeding of the Land Board has been produced before us to show that this extent has been deleted. That could not have been done because of the pendency of this revision filed by the declarant. An extent of 15 acres directed to be deleted by the order in C. R. P. 1891/88 has therefore to be excluded from the properties mentioned in Part-D of the order showing the lands to be surrendered.

The revision is allowed to this extent and in other respects the revision is dismissed.