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Thattarathu Matathil Kootheri Karunakaran Nambiar Vs. the Taluk Land Board, Tellicherry and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2619 of 1979-G
Judge
Reported inAIR1982Ker212
ActsKerala Land Reforms Act, 1963 - Sections 2(14) and 82
AppellantThattarathu Matathil Kootheri Karunakaran Nambiar
RespondentThe Taluk Land Board, Tellicherry and ors.
Appellant Advocate T. Karunakaran Nambiar and; Ramachandran Pillai, Advs.
Respondent AdvocateGovt. Pleader
Cases ReferredKu. Sonia Bhatia v. State of U. P.
Excerpt:
family - meaning of 'family' - sections 2 (14), 82 and 83 of kerala land reforms act, 1963 - person had two wives - first wife died leaving minor children - whether minor children of deceased wife included in family within meaning of act of 1963 - as per deeming provision of section 83 family constitutes husband wife and all minor children of one or other or both wives - minor children of deceased wife included in family within meaning of act. - - 1282 :it is well settled that an explanation merely widens the scope of the main sections and is not meant to carve out a particular exception to the contents of the main section......is that the family of the petitioner consists of not merely himself and his wife but also five minor children born in his first wife who died prior to 1-1-1970. the taluk land board in lis order states as follows :--'the records of enquiry show that the statement giver's first wife smt. bavi-leri madhavi expired before 1970. therefore his second wife smt. murik-koli malathi was included in the statutory family. as such the children bornto his first wife cannot be included in the statutory family of the statement giver. he has also not let in any evidence that he has minor children from his second wife as on 1-1-1970. his family consists of only 2 members as on 1-1-1970. therefore he will be allowed to retain the extent of land applicable to his family under the provisions of the k......
Judgment:
ORDER

P.C. Balakrishna Menon, J.

1. The Taluk Land Board, Tellicherry by its order dt. 13-9-1979 has directed the petitioner to surrender 10.80 acres of land as excess land in the possession of his family consisting of himself and his wife. The Taluk Land Board has found that the family owned and possessed 33.60 acres of land out of which an extent of 7.50 acres is to be excluded as covered by a valid gift-deed executed by the petitioner. An extent of 30 cents is exempted as house-site under Sec, 81 of the Act. The family is found entitled to retain 15 seres and the petitioner is directed to surrender the aforesaid extent of 10.80 acres as excess land in the possession of his family.

2. The only contention raised by the learned counsel for the petitioner is that the family of the petitioner consists of not merely himself and his wife but also five minor children born in his first wife who died prior to 1-1-1970. The Taluk Land Board in lis order states as follows :--

'The records of enquiry show that the statement giver's first wife Smt. Bavi-leri Madhavi expired before 1970. Therefore his second wife Smt. Murik-koli Malathi was included in the statutory family. As such the children bornto his first wife cannot be included in the statutory family of the statement giver. He has also not let in any evidence that he has minor children from his second wife as on 1-1-1970. His family consists of only 2 members as on 1-1-1970. Therefore he will be allowed to retain the extent of land applicable to his family under the provisions of the K. L. R. Act. In this case, it comes to 15 acres. This extent will be allowed.'

It is not disputed before me that the petitioner had five minor children on 1-1-1970 born to his first wife, who died prior to 1-1-1970. Two minor children were born to his second wife after 1-1-1970 and the Taluk Land Board was right in not taking those after-born children into account in reckoning the total extent of land that the family is entitled to retain. If the five minor children in existence on 1-1-1970 are also included as members of the family of the petitioner the family will be entitled to retain 12 standard acres which shall not be less than 12 or more than 20 acres in extent. The only question therefore is whether the five minor children born to the petitioner's first wife who died prior to 1-1-1970 are also members of the family of the petitioner, as defined in the Kerala Land Reforms Act. Section 83 Land Reforms Act, enacts :--

'No person shall be entitled to own or held or to possess under a mortgage lands, in the aggregate in excess of the ceiling area with effect from such date as notified by the Government in the gazette.'

A notification under the Section has been issued as per which the Section has come into force on 1-1-1970. Section 85 of the Act provides for the determination of the excess land to be surrendered by a person owning or holding land in excess of the ceiling area on the date notified under Section 83 and requires such person to surrender the excess land. Section 80 provides for vesting of excess land in the Government on the determination of the extent and other particulars of the land, the ownership or possession or both of which are to be surrendered under Section 85. Section 2 (43) of the Act defines 'person' to include also a family. 'Family' is denned in Section 2 (14) to mean husband, wife and their unmarried minor children or such of them as exist. According to me the definition of the expression 'family' if applied to the facts of the present case will back in also the five minor children born to the deceased wife of the petitioner. The unmarried minor children referred to in the definition can be either of the husband or of the wife or of both and need not necessarily be the children of both.

3, It is not disputed that in a case where the wife is dead leaving behind the husband and unmarried minor children the husband and the minor children will constitute a family within the meaning of the Act. It cannot therefore be said that the existence of the wife on the notified date is a necessary condition to constitute a family as defined in the Act and the minor children and their father will constitute a family, within the meaning of the Act when their mother is dead. Section 2 defining the verious terms in the Act begins with by saying that 'unless the context otherwise requires.' I do not find anything in the context requiring restricted interpretation of the meaning of the expression family to exclude unmarried minor children born in a predeceased wife. Even in cases where there are more than one wife living the husband, his wives and all his unmarried minor children on the date notified, will constitute a family within the meaning of the definition of that expression in the Act. Section 12 of the interpolation and General Clauses Act. 1125 enacts that 'in all Acts unless there is anything repugnant in the subject or context ......the words in the singular shall include the plural, and vice versa.' I do not also find anything in the subject or context to exclude plurality of wives in the concept of family as defined in the Act. Section 82 of the Act lays down the ceiling area of land that the different classes of persons mentioned in the Section are entitled to retain. The different classes of persons dealt with the (1) an adult unmarried person (2) a family consisting of two or more but not more than five members (3) a family consisting of more than five members and (4) any other person. Explanation 1 to Section 82 is as follows :--

'For the purposes of this section, where a person has two or more legally wedded wives living, the husband, oneof 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.'

The Supreme Court in Ku. Sonia Bhatia v. State of U. P. (AIR 1981 SC 1274) stated at p. 1282 :--

'It is well settled that an explanation merely widens the scope of the main sections and is not meant to carve out a particular exception to the contents of the main section.'

Explanation 1 to Section 82 will apply only in cases where a person has two or more legally wedded wives living on the date notified under Section 83 of the Act. The Explanation is a deeming provision to treat one family as more families than one, where there are two or more legally wedded wives living on the date of notification under Section 83, for the purpose of reckoning the ceiling area applicable to each of the split families, all of which constituting only one 'family' within the meaning of the definition in the Act. The Explanation is only a deeming provision is clear from the wording itself that a family as defined under the Act, shall be deemed to be more families than one if there are more than two wives of the person concerned living on the appointed day. The deeming provision will apply only on satisfaction of the conditions mentioned in the Explanation and if two or more wives are not living on the appointed day the Explanation will have no application and the family will constitute the husband, wife and all the minor children of the one or the other or of both.

4. On the interpretation that I have placed upon the relevant provisions of the Act, it is to be held that the five minor children who were in existence on the appointed day are also members of the family of the declarant. The family on the relevant date consisted of seven members entitled to retain 12 standard acres of land which shall not be less than 12 and more than 20 acres. In the present case, taking the family as consisting of only two members, the Taluk Land Board has allowed it to retain an extent of 15 acres of land. The order of the Taluk Land Board shows that 15 acres allowed to be retain-ed corresponds to 7.78 standard acres and that the 10.80 acres ordered to be surrendered as excess land corresponds to 5.40 standard acres. I have already found that the petitioners are entitled to retain 12 standard acres which shall not be less than 12 and more than 20 acres. Over and above the 7.88 standard acres of land allowed to be retained, the family is entitled to retain an additional extent of 4.22 standard acres. If on conversion into ordinary acres and taking into consideration the extent of land that the family is entitled to retain whether there is any excess land for surrender will have to be determined afresh by the Taluk Land Board. If on such determination it is found that the family is liable to surrender any extent of land, the petitioner should be allowed to submit a statement of option for surrender of excess land.

The result is the order of the Taluk Land Board is set aside and the case remanded to the Board for fresh disposal in accordance with law and in the light of the directions and observations contained in this judgment. The C. R. P. is allowed as indicated above. There will be no order as to costs.


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