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N. Bashyam and anr. Vs. the State of Madras Represented by the District Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1970)1MLJ510
AppellantN. Bashyam and anr.
RespondentThe State of Madras Represented by the District Collector and ors.
Cases ReferredI. T. Commissioner v. Smt. Indira
Excerpt:
- .....act 1961 defines ' cultivating tenant's ceiling area' as meaning 5 standard acres held by any person partly as cultivating tenant and partly as owner or wholly as cultivating tenant. section 3 (10) of the same act defines ' cultivating tenant' as meaning a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied, and including any such person, who continues in possession of the land after the determination of the tenancy agreement, and other persons as provided under section 3 (10) (ii) of the act. section 3 (34) defines ' person' including any trust, company, family, firm, society or association of individuals, whether incorporated or not. reading section 60.....
Judgment:

P.S. Kailasam, J.

1. This petition, is filed by two persons who took on lease an extent of 12.68 acres, for revising the order of the Land Tribunal (Subordinate Judge), Tiruchirapalli at Pudukottai holding that there was an association of persons and that both the petitioners together are entitled to cultivate only 5 standard acres. The Authorised Officer (Land Reforms), Tiruchirapalli in his proceedings, dated 27th December, 1965 held that both the cultivating tenants could hold only 5 standard acres and that the excess over 5 acres was the surplus available with them. He issued a notice in Form 32 for proceeding with the surplus extent available. The tenants took the matter on appeal to the Land Tribunal (Subordinate Judge), Tiruchirapalli, and the Land Tribunal agreed with the view taken by the Authorised Officer (Land Reforms) and dismissed the appeal. Hence this revision by the cultivating tenants.

2. Section 60 of the Madras Land Reforms (Fixation of Ceiling on Land) Act 1961 defines ' cultivating tenant's ceiling area' as meaning 5 standard acres held by any person partly as cultivating tenant and partly as owner or wholly as cultivating tenant. Section 3 (10) of the same Act defines ' cultivating tenant' as meaning a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied, and including any such person, who continues in possession of the land after the determination of the tenancy agreement, and other persons as provided under Section 3 (10) (ii) of the Act. Section 3 (34) defines ' person' including any trust, company, family, firm, society or association of individuals, whether incorporated or not. Reading Section 60 along with Sections 3 (10) and 3 (34) , the purport of the definition of 'cultivating tenants ceiling area ' will have to be determined. Cultivating tenant is defined as meaning a person, and a person under Section 3 (34) includes an association of individuals. If the two brothers, who have taken on lease the lands, fall within the scope of the expression ' association of individuals,' then they will be treated as having come within the definition of' person ' and both of them together will be falling within the definition of' cultivating tenant' and the cultivating tenant's ceiling area for a person, that is an association of persons, will be only 5 standard acres. Mr. Champakesa Ayyangar, the learned Counsel for the petitioners, submitted that a cultivating tenant as contemplated in Section 60 as well as Section 3 (10) would mean only a tenant and if there are more cultivating tenants than one, each one of them will be entitled to the ceiling area of 5 standard acres. He referred to the definition of' cultivating tenant's ceiling area' itself, which means 5 standard acres held by any person partly as cultivating tenant and partly as owner or wholly as cultivating tenant, and contended that it would indicate that each cultivating tenant would be entitled to hold 5 standard acres and they could not be treated as an association of persons. Section 3 (42) of the General Clauses Act (Central) defines ' person' as including any company or association or body of individuals, whether incorporated or not. Section 3 (22) of the Madras General Clauses Act, 1891, defines ' person ' as including any company or association of individuals whether incorporated or not. Section 2 (31) of the Income-tax Act, 1931 defines ' person' as including (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses. Section 2 (q) of the Madras Agricultural Income-tax Act, 1955 defines ' person ' as meaning any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, etc. Thus it will be seen the expression ' association of individuals ' is used in the several enactments referred to above. The Supreme Court has construed the scope of the expression ' association of persons ' in three decisions. Dealing with the definition of ' association of persons ' occurring in Section 3 of the Indian Income-tax Act, in Income-tax Commissioner v. Smt. Indira : [1960]39ITR546(SC) , the Supreme Court quoted with approval the decisions in In re, B. N. Elias : [1935]3ITR408(Cal) and In re, D. Warkanath Harishchandra : [1937]5ITR716(Bom) Derbyshire, C.J., pointed out that the word ' association' means, according to the Oxford dictionary, ' to join common purpose, or to join in an action ' In Commissioner of Income-tax, Bombay v. Laxmidas Devidas Smt. Indira : AIR1960SC1172 , summed up the position as follows:

There is no formula of universal application as sto what facts, how many of them and of what nature, are necessary to come to a conclusion that there is an association of persons within the meaning of Section 3; it must depend on the particular facts and circumstances of each case as to whether the conclusion can be drawn or not.

In Mohamed Noorullah v. Commissioner of Income-tax : [1961]42ITR115(SC) , the Court reiterated its view expressed in I. T. Commissioner v. Smt. Indira : AIR1960SC1172 . Applying the test in I. T. Commissioner v. Smt. Indira : AIR1960SC1172 , the Supreme Court held that in the case before it the appellants the co-heirs were rightly assessed as an association of persons and that the co-heirs were sharers, who inherited the business carried on by one Khan Sahib Mohamed Oomer Sahib. In M. M. Ipoh v. I. T. Commissioner, Madras : [1968]67ITR106(SC) , the Supreme Court affirmed the view it expressed in I. T. Commissioner v. Smt. Indira : AIR1960SC1172 , and held that a minor also will be a member of an association of persons. The test laid down in the case cited was that an association of persons must be one in which two or more persons joint in a common purpose or common action. In this case there can be no doubt that the two Petitioners jointed together for the purpose of taking the property on lease and making profits out of the income from the property. This would, in my opinion, satisfy the test laid down in I. T. Commissioner v. Smt. Indira : AIR1960SC1172 , the fact that they are brothers will not exclude them from the scope of the definition. It was submitted that the purpose of the legislation will be stultified if both the tenants are treated as association of persons and the limit is fixed at 5 standard acres. It was strenously contended that if any one of the persons had been partly cultivating certain extent of land and partly owning some other extent of land, not only he but other persons will be deprived of the benefit of the Act and the ceiling extent curtailed. There may be some force in this contention but that will not affect the construction to be put on the words ' association of persons'. Following the decisions cited I agree with the view taken by the Courts below and dismiss the petition with costs.


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