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Uthirapathi Servai and anr. Vs. K.S. Thirumalai Iyengar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1982)2MLJ2
AppellantUthirapathi Servai and anr.
RespondentK.S. Thirumalai Iyengar and anr.
Cases ReferredBashyam v. State of Madras
Excerpt:
.....they have been enjoying the lands separately, they will have to be treated only as 'association of persons'.even assuming that they have separately cultivated portions of the land, as claimed by them it would make no defference because, their rights would not be anything larger than what their father could have claimed on the notified date. hence, they would have to be treated as statutory tenants only in respect of the extent of lands which their father was entitled to hold on the notified date under tamil nadu act lviii of 1961. beyond the ciling limit, whatever be the manner in which they have enjoyed the lands, they would be bound to surrender the excess extent to the state......october, 1962, i.e., notified date. subsequent to the notified date, if a cultivating tenant who held lands earlier to that date dies, the determination would be with reference to the tenancy that existed on 2nd october, 1962, and his heirs would derive benefit only of the extent of what would have been available to the cultivating tenant, on that date. in respect of such of those cultivating tenants, who may acquire a larger extent after the notified date, section 69 envisages returns to be filed. the determinative date would be the date on which he has exceeded the limit. therefore, it cannot be stated that no specific date is fixed for determination of the ceiling limit or that in the event of death of a cultivating tenant holding excess of lands on 2nd october, 1962, there is no.....
Judgment:

T. Sathiadev, J.

1. The two petitioners are tenants and the present revision is filed against the order of the Land Tribunal, Thanjavur, which directed the petitioners to deliver an extent of 2.64 standard acres, which they are holding in excess of the ceiling limit fixed under Tamil Nadu Act of LVIII of 1961. The Tribunal confirmed the order passed by the Authorised Officer, while disposing of an appeal filed before it under section 78 of the Act LVIII of 1961.

2. The Authorised Officer initiated action under the Act on the application of the Ian d owners to resume their lands in Karuvelangulam village of an extent of 3.8 acres from the petitioners herein, on the ground that they are jointly cultivating the lands beyond the ceiling limit. The first petitioner herein filed a petition stating that he is not a member of an undivided Hindu family as claimed and that, even during the lifetime of their father late Lakshmana Servai, there was an oral partition, which took place 9 years back and that each one of them is holding lands within the ceiling limit. It is not in dispute that Lakshmana Servai was the lessee of the land till he died in 1971. Both the petitioners claimed that they have inherited the leasehold right of their father, and after his death, they have divided the lands and that the two petitioners are holding 4.87 and 5.08 acres respectively.

3. In the records maintained under Tamil Nadu Act X of 1969, an extent of 9.96 ordinary acres was registered in the name of late Lakshmana Servai.

4. The Authorised Officer, while passing the order rejected the claim of oral partition, since no material was placed about any partition having been effected and held that the two petitioners have been cultivating the land as 'association of persons' and therefore, the extent of f.64 standard acres will have to be surrendered. The crucial date for determination was taken as 2nd October, 1962.

5. The concurrent findings arrived at by the two authorities are to this effect. There is directly no material placed regarding partition having taken place as pleaded and of the two petitioners enjoying the lands independently. The attempt made to file Exhibit A-1, the lease deed, dated 1st January, 1964 had miserably failed, in that, though the date is noted therein as 1st January, 1964, the lease transaction related to the year 1974-75, and therefore, the year had been wrongly noted as 1964 instead of 1974. This conclusion had been arrived at based on Exhibit A-2, the receipt issued by the land owner for measuring paddy in the year 1974. It is the earliest document produced in support of the case of the petitioners. Exhibits A-2 to A-5 are receipts issued by one Mohamed Anwar, landlord of some other lands for measuring lease paddy during the years 1974-75, 1976 and 1979. The very same extent - Rajagopalan and Angappan were not parties to the said suit, O.S. No. 290 of 1949 - the first covered by Exhibit A-1 was involved and therefore, it was concluded that the two brothers have enjoyed the lands as a unit, and that they were joint tenants.

6. Mr. Kumar, learned Counsel for the petitioners, would first contend that the concept of 'association of persons' has been wrongly applied and that when statutory right is inheritable after the death of late Lakshmana Servai, each of the petitioners has to be treated as a tenant entitled to hold 5 acres of land and therefore, whatever might have been the extent held by late Lakshmana Servai, in so far as the petitioners are concerned, when there ha d been a partition in the family, the determination of the ceiling limit, cannot still be considered as what was obtaining on 2nd October, 1962, but only as Was obtaining in 1971. In support of this contention, he refers to the decision in Damadilal v. Parashram : AIR1976SC2229 wherein, while dealing with the pro visions of Madhya Pradesh Accommodation Control Act (XLI of 1961) it was held that-

The concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one rests on different foundation.

It must therefore be held that the predecessor-in-interest to the present respondents had an inheritable interest in the premises. Consequently, the respondents had a right to prosecute the appeal in the High Court. An objection was taken that, after the death of the original tenant, the tenancy right therein enured to the heirs of the statutory tenant. Relying en this decision, he would plead that, after the death of late Lakshmana Servai, each one of the petitioners is entitled to a half share, and, therefore, the ceiling limit should be determined as on the date of the death of the father, even assuming that the oral partition pleaded during the lifetime of Lakshmana Servai is not accepted and acted upon.

7. He then refers to the decision reported in Rasappa Gounder v. G.N. Ramaswami : AIR1975Mad386 Thanikodi Servai v. Balasamier and Anr. (1981) T.L.N.J. 98 N. Devarajan v. Munirathnam (1981) 94 L.W. 435 : (1981) 2 M.L.J. 97. Based on these decisions, he states that under no circumstances the two brothers can be treated as an 'association of persons'.

8. Mr. Varadachari, learned Counsel for the respondents states that these two petitioners are recalcitrant tenants and to demonstrate it, he would state that in the year 1969 late Lakshmana Servai defaulted in payment of rent, and in 1970-71, he had to pay rent, but died in 1971. A petition had to be filed for eviction of his heirs for rent arrears, and a suit (O.S. No. 655 of 1971) had to be filed for recovery of arrears of rent. Tamil Nadu Act XXI of 1972 stayed proceedings and till 30th April, 1981, the petitioners could not be evicted. In 1972, another petition was filed for eviction, and a suit was filed in O.S. No. 437 of 1973 for recovery of arrears of rent. Once again under Act XXI of 1972, this suit was also stayed. Subsequent petitions were filed between 1975-80for eviction and O.S. Nos. 111 of 1976, 330 of 1976, 148 of 1977 and 396 of 1979, had to be filed from time to time and it was only in 1979 rent could be collected through Court. Due to passing of several Acts by Tamil Nadu Government eviction proceedings were stayed till 1978. It was on 21st October, 1975, a petition was filed before Authorised Officer under Section 17 of the Act. He would also submit that the records maintained under Act X of 1968 still contain the name of Lakshmana Servai and not that of the two petitioners as if they are holding the lands separately for different extents.

9. To repel the claim ma de by Mr. Kumar that the determination of the ceiling limit would depend upon the death of the statutory tenant or the successors in interest from time to time, is a concept wholly unprovided for under Act LVIII of 1961 he refers to Section 60-A of Act, which states that in respect of Chapter VIII dealing with the cultivating 'tenants' ceiling area, the date of publication of the Act and the notified date are respectively 2nd May, 1962 and 2nd October, 1962 and under section 61 of the Act, every cultivating tenant is to submit a return. Under section 60 of the Act, the ceiling area of a cultivating tenant is 5 standard acres held by any person partly as cultivating tenant and partly as owner or wholly as cultivating tenant. Section 62 enables the Authorised Officer to take possession of the Ian din excess, and for such determination, he would have to depend upon the extent of the land held by the cultivating tenant on the notified date. He, therefore, contends that, once a notified date is specified under the Act, since under Section 3(31) the notified date would mean the date 'specified by the Government in a notification which shall be a date after the date of the publication of this Act', it would not be open to any tenant to plead that any different date can be taken into account for determination of ceiling limit. No provision is made under the Act for fixing the ceiling limit based on any different date, other than the notified date. The intention of the legislature was to take away the excess land held by cultivating tenants on the notified date, and whoever may succeed later on to the interests of the cultivating tenant as on the notified date would be bound by the statute. When the Act had contemplated taking over of excess lands from owners of lands, it has equally provided for taking over of the excess lands from cultivating tenants also, beyond the ceiling limit fixed under the Act. Therefore, the contention now raised as if after the death of the cultivating tenant, who was alive on the notified date, it would be obligatory on the part of the Authorised Officer to fix the ceiling limit as on the date of the death of the statutory tenant is a contention which is unprovided for under Act LVIIIof 1961. According to him, the only method to be adopted is to determine the ceiling extent as on the notified date, and in so far as the heirs of the deceased statutory tenant are concerned, they would be treated as joint tenants or association of individuals which is also envisaged under the Act in dealing with the definition of a 'person' in Section 3(34) of the Act. Section 3(34) defines 'persons'-

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

10. In support of these contentions, he first refers to the decision in Bashyom v. State of Madras : (1970)1MLJ510 , wherein Section 3(34) ha d come up for consideration. It was a Case wherein two brothers have taken on lease the lands and they have cultivated them together, and when the question arose as to how the ceiling limit could be fixed, it was held that an association of persons-

must be one in which, two or more persons join in a common purpose or common action, and if they join together for the purpose of taking the property on lease and making profits out of the income from the property they will be treated as association of persons and not as separate tenants,

He then referred to the decision in Kesari Lal v. Sub-Divisional Officer, Ramgajmandi , wherein it was held that when proceedings for determination of ceiling area had started against the tenant who had been recorded on the notified date (1st April, 1966),and during the pendency of the proceedings, he died (in 1969), the ceiling area had to be determined with reference to the date of his death. It was held that, when there has been a mandate of the Legislature about the determination of surplus area with reference to a fixed date, it cannot be allowed to be varied depending upon the circumstances that may occur regarding the tenant and if any person dies subsequent to the notified date, by virtue of legal fiction, the determination must proceed only on the basis of the notified date and not otherwise. When the Legislature had desired that all areas in excess of ceiling limit have to be treated as taken over, it would be wrong to accept different dates to be applied for determination of ceiling limit.

11. The decision reported in Raghunath v. State of Maharashtra : [1972]1SCR48 was relied upon by the Rajasthan High Court to come to that conclusion. In dealing with the provisions of Maharashtra Agricultural Lands (Ceiling and Holdings) Act, the Supreme Court held that under the scheme of the Act, ceiling area is to be determined with reference to the state of affairs of a person on the appointed date (26th January, 1962), and that the area so fixed would not be liable to fluctuations with subsequent increase or decrease in the number of his family members. It was also held that the argument that every addition or reduction in the number of the members of a family-requires redetermination of the ceiling area of such a family, would mean an almost perpetual fixation and refixation in the ceiling area by the Revenue authorities - a state of affairs hardly to have been contemplated by the Legislature.

12. As to what would happen, if the tenant is to die leaving the heirs and whether they are to be treated as joint tenants or tenants-in-common vis-a-vis landord, it was held in the decision reported in Rambai v. Jiyaram : AIR1964Bom96 , that when a lease is granted to a Hindu who dies intestate, the succeeding heirs hold as co-tenants or co-lessees and they hold the property as joint tenants in the sense that they have a single tenancy relationship with the landlord and that they are not different tenants vis-a-vis the landlord.

13. Mr. Kumar to off-set these contentions would rely upon the decision in C.R.P. No. 66 of 1968, wherein it was held that the proper procedure for the Authorised Officer is to take proceedings against the legatees who have taken possession of the properties from the executor and fix the ceiling limit under Section 21 of the Act and not as against the executor based on the holding of the deceased person. The learned Judge had relied upon the decision in Dadarao v. State : AIR1970Bom144 , wherein while dealing with the same Act, which was dealt with by the Supreme Court in Raghunath v. State of Maharashtra : [1972]1SCR48 , it was held that the ceiling limit has to be determined with respect to what the heirs or legatees are holding and that the returns will have to be called upon from them and that they are obliged to give only individual returns and rot joint returns. The learned Judge therein further held that the Ceiling Act nowhere made a provision that the ceiling has to be determined on the state of affairs existing en 26th January, 1962.

14. But, in dealing with this aspect, the Supreme Court had clearly stated that the determinative date for the purpose of that Act would be only 26th January, 1962, and no other date. Hence neither the decision in C.R.P. No. 66 of 1968 nor the decision in Dada Rao son of Kashiram and Anr. v. State of Maharashtra and Ors. : AIR1970Bom144 , would be of any assistance to the petitioners herein.

15. He also refers to the decision in Budh Sen v. Sheet Chandra : AIR1978All88 , in which it was held that when tenancy rights are held to be inheritable, they devolve on the heirs of the deceased, irrespective of the question whether some of them are inoccupation of the demised premises or not, and on the death of a tenant, his heirs succeed to his right not as joint tenants but as tenants-in-common.

16. This decision has no application to the instant case, because even in respect of tenancies which are inheritable, the heirs would derive only such rights which the statutory tenant can get under beneficial legislation, as on the notified date, under Tamil Nadu Act LVIII of 1961. When the statutory tenant could hold only 5 acres, by his death the limit cannot be enlarged, there being no provision made by the Legislature to that effect. For the purpose of the fixation of ceiling limit for cultivating tenant, the notified date being 2nd October, 1962, on which date, late Lakshmana Servai could hold only 5acres and himself having died only long thereafter in 1971, he, by his death cannot enable his heirs to derive benefits beyond what has been contemplated under the Act. If proceedings had been initiated during his lifetime, he would have lost the right in the excess extent. Therefore, merely because he died, the heirs canot ask for different dates to be fixed for determination of ceiling limit. If such contention is to be entertained, then in the event of one of the sons of the late Lakshmana Servai dying, the grand children would ask for a different date to be fixed in so far as their deceased father is concerned. When such a refixation or redetermination had not been contemplated under the Act, in the light of what has been clearly laid down in the decision reported in Raghunath v. State of Maharashtra : [1972]1SCR48 , the contention of Mr. Kumar that the two petitioners having inherited the rights of the statutory tenant they are entitled to be treated as tenants-in-common and seek for determination of ceiling limit as on 1971, cannot be entertained.

17. In Rasappa Gounder v. G.N. Ramaswami : AIR1975Mad386 , the limited question was whether one of the two lessees can surrender his interests, and it was held that such a right is available, in which case, the lessor would be entitled to call for partition of that interest alone. This decision has no application to the facts and circumstances of this case.

18. Reliance placed on Thanikodi Servai v. Balasamier (1931) T.N.L.J. 98, can have no application because, what was involved therein was the question as to whether the lands belonging to the wife can be taken into account in fixing the ceiling area of a 'cultivating tenant'. The present claim by the tenants is not of any of the lands belonging to anybody else being tagged on with what they claim t0be in possession of, but they rest their claim as heirs of their late father. They will have to be treated only as 'association of persons' as laid down in the decision reported in Bashyam v. State of Madras : (1970)1MLJ510 since the definiton of 'person' would also include 'association of persons' and ceiling area would be with reference to what a 'person' is entitled to hold. When the petitioners have failed to produce any evidence to show that they have been enjoying the lands separately, they will have to be treated only as 'association of persons'. Even assuming that they have separately cultivated portions of the land, as claimed by them it would make no defference because, their rights would not be anything larger than what their father could have claimed on the notified date. Hence, they would have to be treated as statutory tenants only in respect of the extent of lands which their father was entitled to hold on the notified date under Tamil Nadu Act LVIII of 1961. Beyond the ciling limit, whatever be the manner in which they have enjoyed the lands, they would be bound to surrender the excess extent to the State.

19. Mr. Kumar would then contend that the provisions of Chapter VIII, if carefully scrutinised, would disclose that they do not contain any specific or express sections to exclude the right of the heirs of a deceased cultivating tenant from claiming ceiling limit to be fixed, separately for each heir and therefore, the order of the Tribunal is erroneous.

20. Chapter VIII of the Act consists of Sections 59 to 72. Section 72 states that the provisions of this Chapter shall, subject to the provisions of Section 17, have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Act. Therefore, when Chapter VIII contains self-contained provisions relating to cultivating tenants, it has to be seen whether it provides for determination of ceiling limit in respect of lands held on the notified date and of a ceiling limit to be fixed in respect of cultivating tenants who may acquire excess lands thereafter. Section 60 only defines the ceiling area of a cultivating tenant, and section 61 provides for submission of returns by cultivating tenants to hold lands in excess of the ceiling area. Having provided a notified date under section 60-A, and an obligation having been foisted on the cultivating tenant to submit a return of the lands held on the notified date, the ceiling limit of such a cultivating tenant, will ha veto be fixed with reference to what he held on 2nd October, 1962, i.e., notified date. Subsequent to the notified date, if a cultivating tenant who held lands earlier to that date dies, the determination would be with reference to the tenancy that existed on 2nd October, 1962, and his heirs would derive benefit only of the extent of what would have been available to the cultivating tenant, on that date. In respect of such of those cultivating tenants, who may acquire a larger extent after the notified date, Section 69 envisages returns to be filed. The determinative date would be the date on which he has exceeded the limit. Therefore, it cannot be stated that no specific date is fixed for determination of the ceiling limit or that in the event of death of a cultivating tenant holding excess of lands on 2nd October, 1962, there is no possibility of determination of the ceiling limit of his heirs.

21. The next contention of Mr. Kumar is that, no return could be filed after the death of a cultivating tenant. In respect of cultivating tenancy, which had existed on the notified date, nothing disables the heirs from filing the return because, even in respect of landlords the returns can be filed by the heirs, wherein different yard-sticks apply for evaluation of the lands that can be held by the heirs likewise, to protect their interests, to the extent of 5 standard acres which could be retained by them as heirs of their father, they could submit the returns and prosecute the proceedings further.

22. Mr. Kumar, would then refer to the right of the Government to take possession only after determination of the ceiling limit, and therefore, it is only when the Authorised Officer can take possession under Section 62 of the Act, the ceiling limit has to be fixed. There is nothing in Section 62 to indicate as to why the notified date under section 60-A should be overlooked, and a different date should be taken into account for fixing the ceiling limit. Sections 62, 63 and 64 refer to what has to be done after surplus lands are determined, and what consequence would flow on taking possession of the lands, and to what extent the State would be held responsible for payment of rents. Merely because possession is taken after the proceedings are concluded, there is nothing to infer that only the date of taking possession will be the relevant date.

23. He would then refer to Section 4 of Tamil Nadu Act XXV of 1955, which confers a right on a cultivating tenant to demand restoration of possession of the lands, and according to him the petitioners being cultivating tenants, their lands cannot be taken over by the State. Section 71 of the Act provides that the provisions of Act XXV of 1955, Act XXIV of 1956 and Act XXXVI of 1958 and any other law relating to tenancy shall, except in so far as they are inconsistent with any of the provisions of this Chapter continues in force. Therefore, the determination of the ceiling limit cannot be prevented by reliance upon any of the rights, which can be claimed under these Acts. When there is right to take over excess lands, to that extent, the right to claim benefits under this Act would not be available. In fact, the landowner's right to resume the lands under Act XXV of 1955 is not affected, as provided under section 68 of the Act. It is contemplated therein that for the purpose of such resumption, the Government shall be deemed to be cultivating tenant in respect of lands which had been taken possession of by it.

24. Therefore none of the contentions taken by Mr. Kumar can be entertained. There being no justifiable ground made out to interfere with the concurrent findings of the authorities below this civil revision petition is dismissed with costs.


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