1. This revision raises rather a vital question, i.e., whether a compromise decree rendered subsequent to the notified date (1-1-1975) in a suit instituted prior to the advent of the A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, would amount to alienation by way of 'surrender within the meaning of Section 17 of the Act
2. Before adverting to the contentions and counter-contentions, the relevant facts in brief may be noticed. There was a contest and a rival contest with regard to a will and a rival will as sought to be set up by the petitioner's father-in-law and his brother. Certain suits and counter suits were filed. They were O.S. No. 17 of 1964, O.S. No. 675 of 1962 and O.S. No, 769 of 1974. All these suits were clubbed and heard together. The contest was with reference to the wills dated 7-10-1962 and 20-9-1962 The petitioner who claimed the rights through his father-in-law, was however, in possession of three extents of land comprising Ac. 2-40 cents, Ac. 2-13 cents and Ac. 9-97 cents. All these extents were the subject-matter of the wills. While so, eventually on 21-4-1976, a compromise was effected by which two extents, viz., Ac. 2-40 cents and Ac. 2-13 cents compromised in S. Nos. 678 and 347/2 respectively, were given away by the declarant-petitioner while retaining Ac. 9-97 cents. No mesne profits were to be paid by either of the parties. However, at the time when the declaration was filed by the petitioner, it was stated in the declaration that a litigation was pending with regard to these three items; and subsequently, after the compromise, the compromise decree was filed. It is in this set up that the Tribunal below came to decide as to whether the two extents that were given away by the petitioner under a compromise, will have to be excluded from his holding or not. Both the Tribunals below held that these were alienations within the meaning of Section 17 of the A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, hereinafter referred to as 'the Ceiling Act' and, therefore, the same cannot be excluded in compute in the holding of the petitioner. Hence this revision.
3. The contentions of the learned counsel for the petitioner are, first, the compromise is only a family arrangement and, therefore, it cannot amount to alienation within the meaning of Section 17 of the Ceiling Act; secondly, it is not surrender or relinquishment of any title but giving up of claim under the compromise decree and, therefore, it is not prohibited by Section 17; and thirdly, there is virtually no cross-examination of the witnesses so as to establish that the compromise was not bona fide.
4. The counter-contentions are that the compromise is nothing but a surrender or relinquishment within the meaning of Section 17 and, therefore, as on 1-1-1975. the petitioner was having title over the lands and what was given up or relinquished or surrendered on 21-4-1976 is nothing but the title and if that is so, on 1-1-1975, he was holding the title and therefore the land has to be included in the holding of the petitioner. It is next contended by the learned Government pleader that under Section 35 of the Specific Relief Act. a declaratory decree has been made on 21-4-1976 and, therefore, whosoever has claim over the property on the notified day will be liable to have it shown or included in his holding. Since the petitioner is claiming under the declaratory decree, he is liable to have it included in his holding for the purpose of computation,
5. Before adverting to the arguments for and against advanced by the Counsel, the relevant provisions of the statute may be noticed. Section 3 (i) of the Ceiling Act reads:
'(i) 'holding' means the entire land held by a person, --
(i) as an owner;
(ii) as a limited owner;
(iii) as a usufructuary mortgagee;
(iv) as a tenant
(v) who is in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or otherwise; or in one or more of such capacities;
and the expression to hold land* shall be construed accordingly;
Explanation:-- Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons;'
Section 17 of the same Act reads,
'Prohibition of Alienation of Holding:--(1) No person whose holding, and no member of a family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non-agricultural land, until he or the family unit, as the case may be, has furnished a declaration under Section 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published under Section 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void and any conversion so made shall be disregarded.
(2) For the purpose of determining whether any transaction of the nature referred to in Sub-section (1) in relation to a land situated in this State, took place on or after the notified date, the date on which the document relating to such transaction was registered shall, notwithstanding anything in Section 47 of the Registration Act, 1908, (Central Act 16 of 1908) be deemed to be the date on which the transaction took place, whether such document was registered within or outside the State.
(3) The provisions of Sub-section (1) shall apply to any transaction of the nature referred to therein in execution of a decree or order of a civil court or of any award or order of any other authority.'
Section 35 of the Specific Relief Act reads,
'Effect of Declaration:-- A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.'
Effect of Section 17 :
6. From a reading of Section 17 of the Act, what becomes apparent is that two ingredients must stand out clearly in order to come within the clutches of the said section; first, it must be a 'holding' within the meaning of the statute; and secondly, it must be an alienation, whether by way of settlement or surrender. Unless these twin attributes are made out, the section cannot be successfully attracted.
7. 'Holding', as per the definition extracted above, means the entire land held by a person in one capacity or other as enumerated in the said Section 3 (i). In C.V. Narayana Reddy v. State of A.P. : AIR1980AP89 , a Bench of this Court, while construing the definition of Section 3 (i) has held that the word 'otherwise' employed in Section 3 (i) (v) must be read eiusdem generis with the words which precede it. So construed, the possession of the holder must be either by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land. Therefore, possession, under any other circumstances, cannot be held to be postulated by this provision.
Compromise -- Meaning of:
In Madho Das v. Mukand Ram, .AIR 1955 SC 481, the Supreme Court held as under:
'It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.'
Next, in Shanmuga Mudaliar v. Kaveri Ammal, AIR 1928 Mad 708, Venkatasubba Rao, J., held;
'Then remains the question, was it within the power of Murugarnmal to enter into the compromise upon which the decree was founded, so that it is binding upon the reversioner and can be allowed to stand The point is fully dealt with in the latest decision of the Privy Council in Ramsumran Prasad v. Shyam Kumari, (AIR 1922 PC 356). Their Lordships held that a compromise not vitiated by fraud or collusion, but made bona fide for the benefit of the estate and not for the personal advantage of the limited owner is binding on the heirs in reversion, and that in this respect a compromise stands on the same footing as a decree on contest. But for a certain contention raised for the plaintiff. I should think it scarcely worth my while to refer to any further cases. It has been argued that on a true construction of the consent decree, Thayarammal took only a life estate in the properties allowed to her. The argument has been put in this way. It was Murugammal that bestowed these properties on Thayarammal, who, being a female, cannot take the properties with full rights of ownership, in the absence of 'words of sufficient amplitude': See Ramaehandra Rao v. Ramchandra Rao (AIR 1922 PC 80). It is needless to decide whether this rule so stated, without qualification regarding gifts to females, is sound or not. The argument rests upon a fallacy, namely, that Thayaramal obtained title as a result of the giving by Murugammal, to whom, it is assumed, the properties then belonged. That this contention is utterly unsound is shown by the judgment of the Judicial Committee in Khunni Lal v. Govinda Krishna Narain ((1911) 10 Ind. Cas. 477 : (8 All LJ 552) (PC)). The true character of a transaction of this kind is not that it confers a new distinct title on the parties to the arrangement, but that it merely has the effect of curing the imperfection of existing title asserted by the parties. In forcible language, the same idea is expressed in the following words by the Judicial Committee in Ramsumran Prasad v. Shyam Kumari, (AIR 1922 PC 356), to which I have already referred.
'It is obvious that to put it, as the respondents in that case did, that the purchasers derived title from the daughters was begging the question. The property belonged to one or other, or possibly both, of the parties to the dispute, and the compromise proceeded upon the footing that it was uncertain in which of them the title was. As their Lordships put it, it was based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledged and defined what that title was.'
From these two decisions cited above, it is quite manifest that parties to the dispute will only assert claims and counterclaims with regard to right and title to the property and till it is finally adjudicated, it cannot be postulated as to which property belonged to whom and even if it is not adjudicated by the Court but resulted in a compromise, the compromise itself proceeds upon the footing that it was uncertain in which of them the title was. So, what has been done by virtue of the compromise was, at best or at worst, the abandonment of claim by the parties vis-a-vis certain properties. So, what is germane in deciding the case within the meaning of Section 17 of the Ceiling Act is, whether the petitioner had any title whatsoever in regard to the S. Nos. regarding which he has abandoned his claim within the meaning of Section 3 (i) of the Ceiling Act. It is quite apparent that he could not be attributed with any ingredients enumerated in the said section so as to be reckoned as a 'holder' within the meaning of the said section, and secondly it cannot tantamount to an alienation, because in order to alienate, a person must have the title or, even in order to relinquish or enter into certain settlement, one should have a determined title in his favour. Since the title with regard to the property was itself in dispute and it was not crystallised till the final adjudication, it cannot be said that on 1-1-1975, the petitioner was holding as owner and had title over the property for being included and computed in his holding. In fact, till 21-4-1976, it could not be postulated that one or the other was having any title in his favour.
8. There is yet another aspect of the matter. In several decisions of this Court, it has been held that where certain rights like those of the inamdar as against the holder of inam land or those of the eslate holder as against the possessor of the land, are the subject-matter of litigation, or, for that matter, if there is any dispute said to be subsisting, so long as the dispute arose prior to the crucial date contemplated by the Ceiling Act, the land cannot be sought to be included for the purpose of computation in the holding of the person until final adjudication. This has been so held in the judgments of this Court in C.R.P. No. 3897 of 1977 dated 20th March, 1978, and C.R.P. No. 6058 of 1979 dated 1-4-1980. In my judgment, therefore, the revisionist cannot be said to be holding the two S. Nos. mentioned above within the meaning of Section 3 (i) of the Ceiling Act and therefore cannot be held to have alienated the same within the meaning of Section 17 of the Ceiling Act in view of the compromise effected bona fide on 21-4-1976, and therefore, the said two S. Nos. cannot be included in the holding of the petitioner. To sum up:
9. (1) A declarant, who was in possession of the land which was the subject-matter of lis initiated long prior to 24-1-1971 and which litigation continued beyond the notified date, i.e., 1-1-1975 and thereafter resulted in a bona fide compromise, cannot be said to be the holder of the land within the meaning of 'holding' as defined under Section 3 (i) of the Ceiling Act.
(2) Till such compromise, under which parties inter se relinquished claims vis-a-vis certain properties, none could predicate as to in whom the title was;
(3) A fortiori, such compromise cannot be construed to be alienation within the meaning of Section 17 of the Land Ceiling Act.
10. The second point that arises for determination is whether Ac. 4-98 cents given to the daughter of the declarant by way of Pasupukumkuma on 19-8-1969 under Ex. P-6 has to be included in his holding. Exs. P-6 to P-9 undoubtedly establish that on 19-8-1969, the deed of pasupukumkuma has been executed and taxes have been paid for and on behalf of the donee. Therefore, I have no hesitation to hold that the gift by way of pasupukumkuma has been established. It has been held by this Court that a deed of pasupukumkuma does not require any registration.
11. The order under revision is, therefore, set aside by holding that the revisionist is entitled for the exclusion of Ac. 2-40 cents and Ac. 2-13 cents comprised in S. Nos. 678 and 347/2 respectively as also the extent of Ac. 4-98 cents given away to his daughter by way of pasupukumkuma, from his holding.
12. In the result, the Civil Revision Petition is allowed. No costs. Advocate's fee Rs. 150/-.