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V. Kalyana Rama Iyer Etc. Vs. the State of Madras Represented by the Collector of Thanjavur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1972)1MLJ81
AppellantV. Kalyana Rama Iyer Etc.
RespondentThe State of Madras Represented by the Collector of Thanjavur
Cases ReferredManki Bai Ammal v. State of Madras
Excerpt:
- .....of ihe family for purposes of fixation of ceiling. once the 'family' is defined as a 'person, his wife, minor sons and unmarried daughters for the purpose of treating it as a unit for fixing the ceiling area, the object of treating the family as a unit will stand defeated if the separate properties of the members are excluded and if the joint properties of the members of the family alone are to be taken into account. the definition of 'family' is intended to apply not only to hindus but to all persons governed by various faiths. there is no question of members owning joint property in a mohammadan family or in a christian family, except in rare cases where there is a joint purchase in the name of all the members of the family. if the construction urged by the petitioners were to be.....
Judgment:
ORDER

G. Ramanujam, J.

1. As both the civil revision petitions raise common questions of law, they are dealt with together.

2. The petitioner in C.R.P. No. 2079 of 1965, his wife Sivakamasundari and two minor sons Rajaraman and Venkataramani constituted a family as defined in Section 3(14) of Madras Act LVIII of 1961. The petitioner had obtained extensive properties from his father out of which, he settled an extent of 49.76 acres in favour of his wife, Sivakamasundari by document dated 16th November, 1954, absolutely as an ante-nuptial arrangement. She in her turn sold some of the lands so settled on her by her husband and settled the rest of the properties an extent of 27-7 acres in favour of her minor son, Rajaraman on 7th November, 1959. Her action in disposing of the lands both by a sale to an outsider and by settlement in favour of her minor son, Rajaraman, was ratified by the petitioner by executing a document styled 'partition release deed' dated 28th April, 1960, under which the petitioner had relinquished all his rights over the lands settled by his wife in favour of their son, Rajaraman. When proceedings were initiated in respect of the petitioner's holding under the said Act, it was contended by the petitioner before the Authorised Officer that, in view of the alleged partition release deed dated 28th April, 1960, the minor son Rajaraman should be treated as a divided member of the family as coming within the explanation to Section 3(14). The Authorised Officer was not inclined to treat the said document as a deed of partition for the minor Rajaraman got the property by virtue of a settlement deed dated 7th November, 1959, from his mother and not from the father as a result of a partition. The Authorised Officer therefore included the said minor son Rajaram as a member of the petitioner's family and calculated the ceiling area by clubbing the property obtained by him under the settlement from the mother within the holding of the family. The petitioner had produced before the Authorised Officer an agreement dated 7th November, 1959, said to have been entered into by the petitioner and his wife wherein they had agreed to recognise the settlement deed executed by the petitioner's wife in favour of one of the minor sons as a partition arrangement. The said unregistered agreement was rejected by the Authorised Officer on the ground that no reliance can be placed on that document especially when the existence of such an agreement has not been referred to in the subsequent release deed dated 28th April, 1960. As against the decision of the Authorised Officer treating the entire hands held by the petitioner and his minor son Rajaraman as the holding of the family and fixing the ceiling limit on that basis, an appeal was filed before the Land Tribunal. The Land Tribunal also agreed with the view taken by the Authorised Officer that there has been no partition between the petitioner and his minor son Rajaraman either as a result of the settlement deed dated 7th November, 1959 or as a result of the so-called partition release deed dated 28th April, 1960. This revision is directed against the concurrent view of the lower authorities.

3. Two contentions have been advanced on behalf of the petitioner in this case : (1) that minor Rajaraman should not be included as a member of the family of the petitioner as the combined effect of the settlement deed dated 7th November, 1959, and the partition release deed dated 28th April, 1960 makes him a divided member of the family and (2) that even if he is treated as a member of the petitioner's family, his individual holding obtained by him through his mother under the settlement deed dated 7th November, 1959, should not be taken to be a part of the holding of the family for purposes of fixing the ceiling area under Section 5 of the Act.

4. The petitioner in C.R.P. No 1029 of 1966, (C.A.K. Rathnasabapathy) his wife and six minor sons constituted a family as defined in Madras Ace LVIII of 1961. The petitioner did not possess substantial properties. But his wife and minor children are owners of several items of properties under various gifts and settlement deeds dated 19th April, 1958, 1 st January, 1957, 2nd January, 1957 and 21st June, 1930, from various relations. The Authorised Officer clubbed all the properties obtained by the minor children and the petitioner's wife from various persons under the said settlement deeds in the holding of the family and fixed the ceiling area on that basis. The petitioner contended before the Authorised Officer that the minor children should be treated as divided members of the family as having become divided from the father and that in any event, the separate properties obtained by the wife and minors under the various settlement deeds should not be clubbed together and brought within the holding of the family. The Authorised Officer rejected the petitioner's contention that the minor children have divided from him as there was no registered deed of partition within the explanation to Section 3(14). He also rejected the petitioner's contention that the separate properties of the minors and their mother have to be excluded from the holding of the family for purpose of the ceiling. That view of the Auhorised Officer was also upheld by the Land Tribunal on appeal. Hence the main question that arises in this revision is whether the separate properties of the wife and minor sons of the petitioner are to be excluded from the holding of the family for fixing the ceiling area under Section 5 of the Act.

5. As regards the first contention in C.R.P. No. 2079 of 1965, it is submitted by the learned Counsel for the petitioner that the settlement deed dated 7th November, 1959, executed by the petitioner's wife in favour of her minor son, Rajaraman should be construed in the light of the agreement entered into between the petitioner land his wife on the same day and if it is so construed the gift made under the settlement deed dated 7th November, 1959, should be taken to be in lieu of the minor's share in the joint family property and the subsequent document dated 28th April, 1960, made it abundantly clear that the petitioner ratified the settlement deed earlier executed by his wife on 7th November, 1959 only as a partition arrangement and not as independent gift of the properties by his wife. It is seen that by the earlier document dated 6th November, 1954 the petitioner settled 48 acres and odd in favour of his wife absolutely and no rights have been reserved for the settlor thereunder and that the settlee in her turn sold some of the properties as owner and settled the rest of the properties in favour of her minor son, Rajaraman. Therefore Rajaraman took the property under the settlement deed dated 7th November, 1959, from the mother and not from the petitioner in recognition of his right to partition in the joint family properties. The property which came to the minor by virtue of the settlement deed dated 7th November, 1959, was not the joint family property on that date and it was the property of the mother. Hence it is not possible to say that the minor Rajaraman took the property under the settlement deed as a partition arrangement in lieu of his share in the joint family properties. The so-called partition release deed dated 28th April, 1960 executed by the petitioner could not be treated as a partition deed between the petitioner and his minor son. The unregistered agreement said to have been executed between the petitioner and his wife on 7th November, 1959, cannot bind the minor as the right of a grantee-under the settlement deed dated 7th November, 1959 cannot be curtailed with reference to the recitals under the said agreement. If the petitioner and his wife wanted to treat the settlement deed dated 7th November, 1959 as allotment of properties to the minor in lieu of his share in the joint family properties, nothing prevented the petitioner or his wife from making it clear by suitable recitals in the settlement itself. The fact that there is no reference to the agreement in the latter release deed seems to throw considerable doubt as to the truth and existence of the unregistered agreement dated 7th November, 1959. I am, therefore, in entire agreement with the authorities below that the documents produced in the case did not establish that there has been a partition by means of a registered instrument between the petitioner and his minor son, so as to exclude him from the petitioner's family. It was also faintly contended by the learned. Counsel that under the personal law of the parties a mere unequivocal declaration of the intention to divide would be sufficient to effect a division in a Hindu Joint family, that in the case of a Hindu father he has himself the power to effect a division between him and his son and that in this case the registered release deed dated 28th April, 1960, executed by the petitioner can be treated as a registered partition, deed. But a perusal of the so-called partition release deed shows that it refers to a division that had taken place between the petitioner and Rajaraman on 7th November, 1959 and that their partition has become complete on the execution of the settlement deed by the petitioner's wife. But as already said, if that was the intention of the parties in executing the settlement deed in favour of the minor son, it could have been made clear even in the settlement deed itself. Further, if the parties intended to treat the settlement deed dated 7th November, 1959, as a complete partition between the petitioner and his minor son, the so-called partition release deed dated 28th April, 1960, is quite unnecessary and purposeless. Hence there is considerable justification for the comment made be the Land Tribunal that the so-called partition release deed should have been created belatedly to buttress a claim that there has been a partition at an anterior point of time, to take advantage of the explanation to Section 3(14) of the Act. As already stated the release deed dated 28th April, 1960, refers to a completed partition said to have taken place between the petitioner and his son even on 7th November, 1959 when the settlement deed was executed by the petitioner's wife in favour of her minor son. But the settlement deed executed by the petitioner's wife or the so called agreement executed by the petitioner and his wife cannot, by any stretch of imagination be construed as effecting a valid division between the petitioner and his son. I therefore reject the first contention advanced on behalf of the petitioner in C.R.P No. 2079 of 1965.

6. As regard s the second question in C.R.P. No. 2079 of 1965 and the only question in C.R.P. No. 1029 of 1966 as to whether the properties obtained by the minors under the settlement deed can be included in the family holding of the petitioner in both the revisions, it is contended by the learned Counsel for the petitioners that the minors having obtained the property from the mother and their relations by settlement deeds, they should be treated as their separate properties and as such their separate properties cannot be included in the family's holding even if they are held to be members of the family. To substantiate the said contention, the learned Counsel make reference to the definition of 'person' in Section 3(34) which is as follows:

'person' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not.

It is urged that the words 'trust, company, firm, society or association of individuals' have all been used to denote a collection of persons having common interest, that the word 'family' having regard to the setting in which it occurs should be construed ejusdem generis with the words occurring before and after it, that if so construed, the family will connote a collection of individuals referred to in Section 3(14) that is, the father, the mother, minor sons and unmarried daughters owning properties collectively or jointly and that when Section 3(7) defines 'ceiling area' as meaning the extent of land which a person is entitled to hold under Section 5, it can have relevance only to the lands collectively or jointly held by the members of the family and not to the separate property of the individual members of the family. It is also urged that if the word 'person' occurring in the definition of 'ceiling area' is equated to a family then, the ceiling area of that family must be with reference to the holding by such family and not to the separate properties of the individual members of the family and that while fixing the ceiling area under Section 5 for a family the separate properties of the individual members of the family have to be excluded as they are not held by the family as such. In other words the contention is that the members of the family as such must hold land collectively or jointly before the family is treated as a unit for the purpose of fixing the ceiling area and that the joint ownership of the properties by the family is a sine qua non for treating the family as a unit. It is also contended that the definition of 'family' in Section 3(14) though it makes no reference to any joint property held by the members of the family, should be deemed to have been used to refer to an association of individuals having joint interest as any other interpretation would lead to considerable anomalies. Various types of illustrations were given to show the anomalies and absurdities to which it will lead if the definition of 'family' is construed to mean a mere collection of individuals without joint ownership of the property. One of the illustrations pointed out is the case of a husband, wife and their minor children and the wife having minor children by a former husband. It is stated that it will be anomalous to construe the minor children by the former husband as members of the present husband's family and to include the separate properties of their children as the property of the family headed by the present husband. It is further pointed out that the statute gives an artificial definition of 'family' and in construing such an artificial definition all possible absurd constructions should be avoided and that the Act being an expropriatory legislation the definition of 'family' has to be construed in favour of the subject and against the State.

7. The learned Counsel refer to the decision in Bharat National Bank v. Bhagwan Singh A.I.R. 1943 Lah. 140, wherein a Full Bench has expressed the view that the rule of ejusdem generis applied as much to associated words in one sentence as to terms or phrases appearing in parts of the same section or in different sections in the same chapter and that the expression 'determination of any question' in the second sentence of Section 2(2) of the Code of Civil Procedure has been used ejusdem generis with the phrase 'conclusively determines' in the first. Relying on that decision the learned Counsel wants me to construe the word 'family' occurring in Section 3(34) in the light of the words preceding and following thereto, that is trust, company, firm, society or association of individuals every one of which has common or joint ownership of property. It is stated that though the word 'family' has been denned without reference to any joint property held by all the members of the family, read in the light of Section 3(34), it would only refer to a collection of the individuals referred to in Section 3(14) owning joint interest in some properties. The observations of the Supreme Court in P.J.P. Thomas v. I.T. Commissioner Calcutta : [1963]49ITR97(SC) were invoked in support of the contention that an artificial definition has to be strictly construed. In that case the scope and effect of Section 16(3)(a)(iii) of the Income-tax Act of 1922 came up for consideration in respect of a transfer of certain shares held by the assessee in favour of one Mrs. Knight who became his wife later. It was argued that at the time the transfer was made by the assessee in favour of Mrs. Knight, the latter was not the wife of the assessee and therefore Section 16(3)(a)(iii) which talks of 'assets transferred, directly or indirectly to the wife by the husband' has no application. The Supreme Court expressed the view that the said section creates an artificial income and as such must be strictly construed and on such a strict construction it held that on a proper reading of Section 16(3)(a)(iii) it is clear enough that the relationship of husband and wife must also subsist when the transfer of assets was made and that the condition that the transfer was directly or indirectly to the wife by the husband was not fulfilled. The principle laid down in that decision that an artificial definition has to be strictly construed cannot be taken exception to. But the question is whether the definition of 'family' in Section 3(14) has to be so construed as to have a limited application only to cases of persons having a joint interest or ownership of land or persons having unity of title. On a due consideration of the matter I am afraid I cannot accept the contention put forward on behalf of the petitioners.

8. There is a specific definition of 'family' in Section 3(14) and that definition does not import the notion of joint ownership of lands by the members of the family. The petitioner's contention is that the definition of 'family' should be construed in the light of the definition in Section 3(34) where the word 'family' occurs after the words trust, company and is succeeded by the words firm, society or association of individuals. It is true that the rule of ejusem generis would apply to the word 'family' occurring in the definition of the ' person ' in Section 3(34) and the word 'family' therein will connote a group of individuals having a joint interest or unity in title. But once the statute uses a definite definition of 'family' it is not possible to restrict its scope with reference to the definition of 'person' in Section 3(34) or the definition 'ceiling area' in Section 3(7) and to say that the 'holding' by the family as such of properties should be the basis for fixing the ceiling limit. The definition of 'family ' has to be construed in the light of the other sections of the Act. Section 5(1)(a) provides for fixing the ceiling area in the case of every person or of every family consisting not more than 5 members, that it shall be 30 standard acres and Section 5(1)(b) provides that the ceiling area in the case of every family consisting of more than five members shall be 30 standard acres together with an additional five acres for every additional member of the family in excess of five. It is, therefore, clear that the statute treats a person or a family as two units for the purpose of fixing the ceiling area. When the 'family' is treated as a unit for the purpose of the Act it is not possible to import the definition of 'the person' into 'the family' so as to bring in notions of joint ownership or of unity of title within the definition of 'family.' The opening words of the definition in Section 3 'unless the context otherwise requires' indicate that the definitions given in that section have to be construed in the context in which they are used and when the statute talks of two separate units for fixation of the ceiling, one dealing with 'every person' including trust, company, firm society or association of individuals and the other dealing with 'family' it is not possible to say that the word 'family' when taken as a unit should have the same meaning ascribed to it in Section 3(34). Section 5(2) makes the position still more clear. It states that for the purpose of fixing the ceiling area under Section 5 for the family all the lands 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 held by the family. This clause will be meaningless if it is to be held that the factual existence of joint ownership or a joint interest is a sine qua non for the existence of a family as contemplated in the Act. The learned Counsel wants me to construe Section 5(2) as referring to the family properties taken in the individual names of one or other of the members and not to refer to the separate properties of the members as such. In my view it is not possible to construe that sub-section in the manner suggested by the learned Counsel. The alleged anomalies and absurdities pointed out by the learned Counsel do not pose any problem. If the father is treated as the head of the family, his wife and all his minor sons and unmarried daughters will constitute one unit and in such a case the children by the former husband cannot be taken to be members of the family. But on the other hand, if the wife is taken as the head of the family, her husband and her children including the children born of her former husband will become the members of her family. When the legislative intention to make a family as unit and to make all the lands held individually by the members of the family or jointly by some or all of the members of such family as the holding of the family is clear, it is not possible to restrict the scope of the definition of 'family' with reference to possible anomalies or absurdities in given set of facts. It is contended by the learned Counsel that if 'family' is construed to refer to the members of the family without any joint ownership or unity of title in respect of their holding it will result in the section itself being illegal or ultra vires. The contention is that no law can treat the property of one as the property of another and that if the separate properties of the individual members of the family are treated as the holding of the family that will be unconstitutional. Reference is made to the decision in Jadap Singh and Ors. v. Himachal Pradesh Administration and Anr : [1960]3SCR755 , where it has been held that the Legislature is not empowered to treat the property of one as the property of another under any of the legislative entries in the Constitution. But the question is whether the Legislature in this case had treated by enacting Section 5(2) the property of one as the property of another. While fixing the ceiling limit, it has taken the family as a unit and has fixed the ceiling limit of 30 standard acres if the family consists of five members and allowed five acres more for each additional member. It is only for the purpose of fixation of ceiling the separate property of the members are treated as the holding of the family. Individual ownership has not been altered or interferred with by the statute.

9. Mr. Vedantachari, learned Counsel for the petitioner in one of the cases contends that Section 3(14) defining 'family' and Section 5(2) should be construed in such a way as to make it valid and constitutional. He states that the Court must adopt only such construction as will make the statutory provisions valid. The learned Counsel refers to the decision in Maharaja Shri Jayantsinghji Ramalsinghji etc. v. The State of Gujarat (1962) 2 S.C.R.411 : A.I.R. 1962 S.C. 82, wherein under the guise of changing (he definition of a permanent tenant and changing the rule of evidence the Legislature reduced the purchase price which the landholders will be entitled to receive under Section 32(H) of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended in 1956 and that was held void as being a colourable legislation. But I am not able to see how the petitioners seek support from that decision. Madras Act LVIII of 1961 cannot be said to be a colourable legislation from the mere fact that under Section 5(2) the individual holding of the members of the family was treated as the holding of ihe family for purposes of fixation of ceiling. Once the 'family' is defined as a 'person, his wife, minor sons and unmarried daughters for the purpose of treating it as a unit for fixing the ceiling area, the object of treating the family as a unit will stand defeated if the separate properties of the members are excluded and if the joint properties of the members of the family alone are to be taken into account. The definition of 'family' is intended to apply not only to Hindus but to all persons governed by various faiths. There is no question of members owning joint property in a Mohammadan family or in a Christian family, except in rare cases where there is a joint purchase in the name of all the members of the family. If the construction urged by the petitioners were to be accepted, it will mean that the family definition will have no application to Muslims and Christians. In In re Hindu Women's Rights to Property Act , while deal with the constitutional validity of the Hindu Women's Right to Property Act of 1937 the Federal Court dealt with the question whether the Act was beyond the competence of the Indian Legislature so far as its operation might affect agricultural land in the Governors' provinces and expressed that though the word 'property' used in the Act is of such wide and general import, it should be construed to have been used with reference to properties other than agricultural lands, the reason being:

The presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word 'property' as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land.

The decision also does not, in my view, compel this Court to construe the definition of 'family' in a restrictive sense and to overlook the provisions of Section 5(2). The constitutional validity of Madras Act (VIII of 1961) cannot be any longer challenged in view of its inclusion in the 9th Schedule to the Constitution and it cannot also be said that the Legislature is incompetent to constitute the family defined in Section 3(14) as a unit for the purpose of fixing the ceiling and how the separate and joint properties of the members have to be treated while fixing the ceiling limit. As already said, by restricted construction of the definition of 'family' in Section 3(14) limiting it to apply to such members of the family as are owning a common or joint property the scope of the statute will get very much narrowed down and a large section of persons such as Muslims and Christians will have to be proceeded individually while Hindus alone will have to be proceeded as a unit. Such a construction has obviously to be rejected. I am, therefore, of the view that 'family' as defined in Section 3(14) of the Act will connote all persons referred to in that definition irrespective of the fact whether there is any joint ownership of the property by them or not and that under Section 5(2) the separate property of the individual members of the family so constituted has to be deemed as the property of the family for purpose of fixing the ceiling.

10. I find Ramaprasada Rao, J., has taken a similar view in Manki Bai Ammal v. State of Madras : (1969)2MLJ572 . In that case the learned Judge has rejected the contention that the separate holding of a minor son should not be treated as the property held by the family and held that such property of the minor should be tacked on and reckoned along with the holding which other members of the family had. With respect I agree with that view.

11. In the result all the contentions raised by the petitioners in the above two civil revision petitions have to be rejected. The civil revision petitions are, therefore, dismissed, but, in the circumstances without costs.


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