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Soodalai Ammal Vs. Sachidanandam Pillai and ors - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1981)1MLJ93
AppellantSoodalai Ammal
RespondentSachidanandam Pillai and ors
Cases ReferredKrishnaswami Mudaliar v. The Authorised Officer
Excerpt:
.....that a person who has a right to enjoy the land during his life time shall be deemed to be a limited owner notwithstanding that he has no power of alienating the land. according to section 3(19) of the act, to hold land' with its grammatical variations and cognate expressions means to own land as owner or to possess or enjoy and as possessory mortgagee or as tenant or as intermediary or in one or more of those capacities. explanation ii--for the purpose of this clause .(a) in the case of persons governed by hindu law, unmarried daughters' and 'unmarried grand-daughters' shall not include 'unmarried daughters' or 'unmarried grand-daughters'.(i) in whose favour any land had been voluntarily transferred by either of whose parents or grand-parents on account of natural love and..........order dated 25th june, 1977, the authorised officer held that under the provisions of the act, a landowner having absolute or limited ownership in the land can offer any land as surplus and that the only basis on which the land so offered can be rejected is that the land is not capable of easy and convenient enjoyment or its utility had otherwise been diminished by the wilful act of the landowner. therefore, the objections put forth by the first respondent herein were again regatived and the authorised officer directed the preparation of the final statement and the publication thereof. against this order, the first respondent preferred c.m.a. no. 13 of 1977 to the land tribunal (principal subordinate judge), tiruchirapalli. the land tribunal, by its order dated 29th july, 1978,.....
Judgment:

V. Ratnam, J.

1. This civil revision petition arises out of proceedings under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act (LVIII of 1961) as amended, hereinafter referred to as the Act. In the course of the enquiry held by the Authorised Officer it was found that the petitioner was in possession of an extent of 24.651/2 ordinary acres equivalent to 22.007 standard acres as on 15th February) 1970 and that an extent of 1.963 standard acres was in surplus. The petitioner had also indicated that four items of properties viz. S. No. 143/5--0.77 cents; S. No. 125/4--1.06 acres; S. No. 180/2--0.12 cents and S. No. 1.91--0.411/2 cents in Kulamani village may be declared as surplus lands. The first respondent raised an objection with reference to the items sought to be surrendered by the petitioner on the ground that the petitioner has only a life interest and that he is entitled to the remainder in two items of properties viz., S.F. No. 125/4 and S.F. No. 143/5 and therefore, these two items must be included within the ceiling area of the petitioner. This objection was rejected by the Authorised Officer, who passed an order to the effect that the compensation amount for these two items of properties will be kept in deposit and that the interest thereon will be given to the petitioner for her lifetime and the compensation amount will be paid to the first respondent after the death of the petitioner. Aggrieved by this, the first respondent preferred an appeal in (C.M.A. No. 36 of 1975 to the Land Tribunal) Principal Subordinate Judge), Tiruchirapalli. By order dated 15th Aprill, 1976,the matter was remanded by the Land Tribunal to the Authorised Officer for fresh disposal. Pursuant to this, the matter was again reconsidered by the Authorised Officer (Land Reforms), Tiruchirapalli. By order dated 25th June, 1977, the Authorised Officer held that under the provisions of the Act, a landowner having absolute or limited ownership in the land can offer any land as surplus and that the only basis on which the land so offered can be rejected is that the land is not capable of easy and convenient enjoyment or its utility had otherwise been diminished by the wilful act of the landowner. Therefore, the objections put forth by the first respondent herein were again regatived and the Authorised Officer directed the preparation of the final statement and the publication thereof. Against this order, the first respondent preferred C.M.A. No. 13 of 1977 to the Land Tribunal (Principal Subordinate Judge), Tiruchirapalli. The Land Tribunal, by its order dated 29th July, 1978, purporting to apply the decision of this Court in Krishnaswami Mudaliar v. Authorised Officer, Madras Land Reforms, Cuddalore : AIR1973Mad453 . and holding that if the lands agreed to be surrendered by the petitioner are treated as surplus, the first respondent will be deprived of those lands but that he will be entitled only to the money compensation after the lifetime of the petitioner, directed that S.F. No. 125/4 and S.F. No. 143/5 of Kulamani village be included within the ceiling area of the petitioner. It is against this order the petitioner has come up in revision before this Court contending that the choice of lands to be surrendered by an 'owner' within the meaning of the Act is unfettered and that it is not open to the first respondent to object to her surrendering any lands in which he may be any interest as a remainderman.

2. When this civil revision petition came up for hearing before one of us, having regard to the importance of the question raised, namely, whether the interest of a remainderman can be reached under the provisions of the Land Reforms Act, while applying them to the case of a limited owner, the matter was directed to be posted before a bench in order to have an authoritative pronouncement on this question and that is how the matter comes up before us.

3. The principal contention raised by the learned Counsel for the petitioner is that having regard to the scheme and provisions of the Act, a person in the position of the petitioner who is a 'limited owner' for purposes of the Act has a right to surrender whatever lands she thinks fit and that her choice in that matter cannot be restricted or otherwise fettered merely because another person has also an interest in those properties as a remainderman. Per contra the learned Counsel for the first respondent strenuously contends that the effect of recognising an unfettered right on the part of the petitioner to surrender lands would be to deprive the remainderman of the property in specie and that money compensation certainly cannot be equivalent to the property itself at a time when the property falls into possession of the remainderman.

4. In order to appreciate the rival contentions, it is necessary to advert to some of the definitions in the Act as well as other related provisions therein, as a decision on the question has to be rested solely on specific statutory provisions in this regard and not oh general considerations in law applicable to a situation like the present. Section 3(33) of the Act defines an 'owner' thus:

'Owner' (a) means

(i) any parson holding land in severally or jointly or in common under a ryotwari settlement or in any way subject to the payment of revenue direct to the Government; or

(ii) a landholder as defined in the Madras Estates Land Act, 1908(Madras Act I of 1908), or a ryot as defined in that Act; or

(iii) an inamdar not being a landholder defined as aforesaid; and

(b) includes....

(i) Full owner or limited owner, or

(ii) the lessee of any lease-hold village or his heirs, assignee, legal representatives or persons deriving rights through him.

It is thus obvious that for purposes of the Act an 'owner' would include a full owner or a limited owner. The expression 'full owner' has been defined under Section 3(16) of the Act as meaning a person entitled to the absolute proprietorship of land. Section 3(28) defines 'limited owner' as any person entitled to a life estate in any land and includes persons deriving rights through him. An explanation has been appended to this definition by Tamil Nadu Act XXXIX of 1972 to the effect that a person who has a right to enjoy the land during his life time shall be deemed to be a limited owner notwithstanding that he has no power of alienating the land. According to Section 3(19) of the Act, 'to hold land' with its grammatical variations and cognate expressions means to own land as owner or to possess or enjoy and as possessory mortgagee or as tenant or as intermediary or in one or more of those capacities.

5. Section 3(14) defines a family thus:

'family' in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her.

(i) minor sons and unmarried daughters and, (ii) minor grandsons and unmarried granddaughters in the male line, whose father and mother are dead.

Explanation I--For the purpose of this clause in the case of persons governed by Hindu Law, 'minor sons' and 'miner grandsons' shall not include sons or grandsons.

(i) between whom and the other members of the family, a partition by means of a registered instrument has taken place; or

(ii) in respect of whose family properties a preliminary decree for partition has been passed before the notified date;

Explanation II-- For the purpose of this clause ............

(a) in the case of persons governed by Hindu Law, 'unmarried daughters' and 'unmarried grand-daughters' shall not include 'unmarried daughters' or 'unmarried grand-daughters'..

(i) in whose favour any land had been voluntarily transferred by either of whose parents or grand-parents on account of natural love and affection; or

(ii) in whose favour a preliminary decree for partition has been passed before the notified date;

(6) in the case of persons governed by any law other than Hindu Law 'minor sons' ''unmarried daughters', 'minor grand-sons', and 'unmarried grand-daughters', shall not include 'minor sons', 'unmarried daughters', 'minor grandsons' and 'unmarried grand-daughters '........

(i) in whose favour any land has been voluntarily transferred by either of whose parents of grand parents on account of natural love and affection; or

(ii) in whose favour a preliminary decree for partition has been passed before the notified date.

A 'person' for purposes c f the Act is defined by Section 3(34) as under:

'Person' includes any company, family, firm, society or association of individuals, whether incorporated or not; or any private trust or public trust;

Section 5(1)(a) of the Act states that the ceiling area in the case of every person and every family consisting of not more than five members shall be 25 standard acres. Under Section 7 of the Act, it is provided that on and from the date of commencement of this Act, no person, shall, except as otherwise provided in this Act, but subject to the provisions of Chapter VIII, be entitled to hold land in excess of the ceiling area. There is no dispute in the present case that what is held by the petitioner is 'land' as defined in Section 3(22) of the Act. It is also not in dispute that the petitioner is entitled or to enjoy the properties in question for her lifetime, though without powers of alienation and that the first respondent is a remainderman. Undoubtedly, therefore, the petitioner will be within the definition of a 'limited owner' under Section 3(28) of the Act. Since under Section 3(33)(b)(1),'owner' includes a 'limited owner' as well, Section 3(19) of the Act Would apply and take in within its scope cases of persons holding land as a limited owner like the petitioner, with a right to enjoy the land for her lifetime and subject them to the provisions of the Act. The fixation of a ceiling under Section 5 of the Act also points out that except as otherwise provided in the Act, no person shall be entitled to hold lands in excess of the ceiling area. It may also be mentioned that there is no provision in the Act as such to permit a person (a limited owner as in this case) to hold lands in excess of the ceiling area on the ground that another person has interest therein as remainderman. The contention of the learned Counsel for the first respondent is that by reason of Section 5(6) of the Act, the lands in which a person has rights as limited owner as defined under Section 3(28) are totally outside the purview of the Act. At first blush, it may appear that this argument is attractive and acceptable, yet, on a closer scrutiny, it is at once obvious that there is no merit in it. If the Act recognises a person in the position of the petitioner as a person 'holding lands'' as 'owner' then, as stated already, there is no provision in the Act which exempts either such persons or the holdings by such persons or the interest of the remainderman from the operation of the provisions of the Act. But, on the other hand there are several provisions in the Act which indicate that even lands held by persons like the petitioner are also as much subject to the provisions of the Act as any other land. In the instant case, though at the stage of the computation of the ceiling in the hands of the petitioner, ostensibly the Act does not purport to affect the interest of persons who are remaindermen yet the scope of the Act and the provisions thereof are such that in the process of the application of the provisions of the Act to lands owned by a 'limited owner' and subjecting him or her to a ceiling, the Act contemplates the interests of such remainderman as well falling within the ambit of the Act. It must be borne in mind that what is proceeded against under the provisions of the Act is 'land' as such in the hands of 'limited or a full owner' as defined in the Act as the case may be and not merely against the interest of such person in the land. Under Section 8 of the Act, any person holding lands in excess of the ceiling area is enjoined to furnish a return containing details of the holding, the particulars of the land which such person desires to retain within the ceiling area as well as that which he desires to be declared as surplus etc. On a consideration of the returns so filed under Section 8 and such other information as may be collected under Section 9, under Section 10 the Authorised Officer is empowered to hold an enquiry and to prepare a draft statement in respect of each person holding or deemed to have held land in excess of the ceiling area. Sections 10(1)(viii), 10(1)(x) and 10(1)(xii) are important. Section 10(1)(viii) states that the draft statement should contain the particulars of the land desired to be retained within the ceiling area, while Sections 10(1)(x) and 10(1)(xii) state that the draft statement should also include the particulars of the Land and which may be comprised within the ceiling area and particulars of lands proposed to be declared as surplus. Section 10(3) provides that if a person had failed to specify the particulars of the land which he desires to retain within his ceiling area, the Authorised Officer shall, as far as practicable, specify in the draft statement, the land which is capable of easy and convenient enjoyment as the land to be retained by such a person within his ceiling area. Section 10(4) further provides that if the particulars of the land which a person desires to retain within his ceiling area have been specified, the Authorised Officer shall, as far as practicable, declare the same as the land comprised within his ceiling area. These provisions also indicate that the choice of either retention or surrender of surplus lands rests entirely with the person against whom proceedings under the Act are taken without reference to the interest of any other person in those lands. Statutorily, therefore, the person who is proceeded against under the provisions of the Act is the person who is given the choice to specify the land to be retained as well as the land to be surrendered. In this, the provisions of the Act, as they now stand, do not permit the remainderman to object to the retention or surrender of a particular item. This again further indicates that irrespective of the nature of the interest of the remainderman in the properties held by a limited owner to whom the provisions of the Act are applied, such limited owner can even surrender properties in which the remainderman has an interest. This position is further strengthened by Section 52 of the Act. That section relates to the compensation payable in respect of the lands acquired by the application of the provisions of the Act to a 'limited owner'. Thereunder, the compensation payable in respect of the surplus lands held by a 'limited owner' should be kept in deposit before such authority as may be prescribed and the interest accruing thereon has to be paid over to those persons entitled to the possession of the land. The first proviso to Section 52 further contemplates a case where an encumbrance has been created over the interest of a limited owner and provides for the apportionment as well of the interest to the encumbrancer as well as the limited owner. In such cases, the interest earned by the investment of the compensation shall be paid to the encumbrancer to the extent to which the encumbrancer is entitled and the balance is payable to the person or persons who would, for the time being, have been entitled to the possession of the said land. Section 52(2) further brings out very clearly that persons with interest in lands similar to that of the petitioner in the instant case are also subject to the Act, as otherwise the provisions for payment of interest and the time during which the compensation should remain in deposit will be wholly out of place. Apart therefore from the definitions and provisions in the Act referred to already, Section 52 is a clear pointer to the intention of the legislature that lands, as in the present case, can also be subjected to the law of ceiling in respect of which compensation is deposited and the interest alone is made available to the person who is entitled to remain in possession, but for the deprivation of such possession by the application of ceiling law. In other words, the limited owner is compensated by payment of interest for deprivation of possession by the application of the Act, while the remainder-man is given the benefit of compensation deposited, when the estate falls into possession or he becomes entitled to the same and such compensation obviously is in lieu of the land in which he has an interest as reminderman and which is lost to him by the application, of the provisions of the Act to a person who falls within the definition of a limited owner as defined in Section 3(38) of the Act. As seen above, the provisions of the Act do trench upon the interest of the remainderman. In the light of the other provision of the Act referred to earlier, it cannot be claimed that such interest cannot be touched by the provisions of the Act or in other words the interest of the remainderman is wholly outside the scope of the Act. The extreme contention of the learned Counsel for the first respondent that under Section 5(6) of the Act a remainderman is totally outside the scope of the Act cannot be accepted. Unless there is an exemption of such interest from the purview of the provisions of the Act, it cannot be assumed that in process of applying the provisions of the Act to lands in the holding of the 'limited owner' under the Act, the interest of the remainderman should be left untouched. AT Stated already, the Act deals with and imposes a ceiling on land without reference to the subordinate or lesser interest therein created in favour of different persons. If, lands in which another person has interest as a remainderman, can for purposes of the Act, be treated as land comprised in the holding of a limited owner we do not see how such land can cease to be land for purposes of surrender. The effect of Section 5(6) is that in computing the extent of land owned by any person, that extent which may revert to such person immediately after the death of any limited owner, be excluded. It means no more than that in considering whether the remainderman would be subject to the provisions of the Act, the extent of the lands in which he has interest as a remainderman need not be taken into account during the lifetime of the limited owner. It must also be remembered that a remainderman is neither a full owner nor even a limited owner as defined in the Act and he does not also claim through a 'limited owner'. Till the actual determination of the interest of the 'limited owner' and the falling into possession of the remainder, the holder of such an interest does not become a full owner of the lands. The reason behind a provision like Section 5(6) is at once apparent. Inasmuch as the lands in a holding in excess of the ceiling in which another person has interest as a remainderman can be subjected to the provisions of the Act even in the hands of a person who does not answer the description of a 'full owner', such lands need not be included or taken into account in computing the holding, if any, of the remainderman, during the lifetime of the limited owner. After the application of the provisions of the Act to the limited owner and the declaration of a surplus, the lands in the permitted holding of the limited owner in which the remainderman may have an interest, will again, after the termination of the life interest, along with the other lands, if any, of the remainderman, be subjected to the ceiling law. It is therefore quite conceivable that the 'limited owner' in the first Instance and later the remainderman as 'full owner' may be subject to the provisions of the Ceiling Act; but that is no ground to say that the 'limited owner' or remainderman as such, are totally outside the Act. In our view, Section 5(6) cannot be construed in such a manner as to result in such a wholesale exclusion as there are clear provisions in the Act that the interest of the limited owner and the remainderman in the land would be subjected to the Act. In the absence of any specific statutory provision, it cannot be a matter of assumption that the interest of a remainderman would not be within the scope of the ceiling Act. The consideration that the remainderman is likely to be deprived of the property in specie on the application of the provisions of the Act to a holding in the hands of a limited owner and that he may be entitled only to a monetary compensation in lieu thereof cannot be a ground to hold that the remainderman has got rights in the property taking advantage of which he can object to the surrender by the limited owner of lands in which he has a vested remainder. The payment of compensation to the remainderman on the termination of the interest of the limited owner may be poor consolation so far as his interests are concerned as his claim to the land as such is not given effect to, but that is the result of the operation of the provisions of the statute. We are therefore clearly of the opinion that as per the provisions of the Act as they are, the interest of a remainderman can, by the application of the provisions of the Act to a limited owner, be interfered with, though the remainderman by himself or herself may not be the person to whom the provisions of the Act are applied. In order to exclude the two items of properties in which the first respondent claims interest as a remainderman from the lands to be surrendered, the Land. Tribunal had relied upon the decision in Krishnaswami Mudaliar v. The Authorised Officer (Madras Land Reforms), Cuddalore : AIR1973Mad453 . In that case, the petitioner prayed before the Authorised Officer (Land Reforms), Cuddalore that the land which he purchased from one Papayee Ammal may be included within the ceiling area of the said Papayee Ammal. The land had been purchased by the petitioner on 21st November, 1962 long after the notified date viz., 2nd October, 1962. The plea of the petitioner to include the extent so purchased by him from Papayee Ammal was not accepted by the Authorised Officer as the sale in favour of the petitioner was after the notified date and that such a transaction cannot be recognised. Therefore, the request of the petitioner to include that extent within the ceiling area of Papayee Ammal was not accepted. In dealing with the question whether a person who had purchased the property even after the notified date will have an interest in the land and as such, entitled to notice under Section 10(5), Kailasam, J. (as he then was) held that the intention of Section 10(5) is to hear the objections and to pass orders after considering their interests and in that view, the Authorised Officer would be well within his powers, if he allots the land that had been assigned to a third party after the notified date for valuable consideration within the ceiling area of the person submitting the return. The question in the present case is very different from that case. We are not concerned with any alienation after the notified date and any attempt by the vendor or the purchaser to retain the extent of land sold within the ceiling of the vendor. It is not the complaint of the first respondent that he did not have notice of the proceedings. Indeed, he has had more than an ample and adequate opportunity to agitate his claim that the two items of properties should not be included in the lands offered by the petitioner for being surrendered to the Government as surplus. The objection that has been raised and persisted in by the first respondent to the effect that the two items of properties in which he has an interest as remainderman should not be included in the surplus lands of the petitioner at all, as pointed out already, cannot be accepted, particularly in view of the provisions of the Act already referred to. Under these circumstances, we are of the view that the reliance by the Land Tribunal on the decision of Kailasam, J., as he then was, referred to earlier, cannot in any manner advance of the case of the first respondent. We may also point out that Section 10(4-A) of the Act now specifically provides for the inclusion of the property transferred within the ceiling area of the transferor or the person effecting the partition as the case may be, as if no transfer or partition had taken place. This provision has been made only with a view to safeguard the interest of the alienees like the petitioner in the decision of Kailasam, J., as he then was, referred to above. But as has been pointed out already, the position in the present case is very different. For the aforesaid reasons, the order of the Land Tribunal has to be set aside and that of the Authorised Officer restored. Consequently, the civil revision petition will stand allowed. No costs.


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