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Kandaswamy Goundar Vs. the Authorised Officer (Land Reforms) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1976)1MLJ380
AppellantKandaswamy Goundar
RespondentThe Authorised Officer (Land Reforms)
Excerpt:
- .....the contention of kandaswamy the petitioner herein given by the authorised officer as well as the land tribunal is that the lands were under the enjoyment of kandaswamy on 15th february, 1970 and the village account also showed that the lands were in his name and the fact that civil proceedings were pending which were initiated in the year 1973 after the publication of draft statement under section 10(1) need not be taken into account. the land tribunal was of the view that as the preliminary decree in the 'civil suit was passed after 2nd october, 1970 the preliminary decree will not be valid and the decree passed in favour of ponnammal on 12th september, 1973 in o.s. no. 411 of 1973 cannot be taken note of. the land tribunal was of the view that section 3(14)(ii) and section 21-a(a) do.....
Judgment:
ORDER

P.S. Kailasam, J.

1. This petition is filed by P. Kandaswamy Gounder against whom proceedings were taken by the Authorised Officer (Land Reforms), Coimbatore. By his order dated 20th July, 1973 the Authorised Officer found that Kandaswamy Gounder was possessed of a surplus extent of 3.560 acres. The petitioner in this Court Kandaswamy Goundar objected to the Authorised Officer finding a surplus of 3.560 acres on the ground that his mother Srimathi Ponnammal was entitled to a share in his father's property and the same has to be excluded from his holdings and that the suit filed by his mother against him for declaration of her rights is pending in the civil Court. It may be mentioned that the father of Kandaswamy Goundar and husband of Ponnammal died on 2nd November, 1948. After the Hindu Women's Right to Property Act, 1937 the mother became entitled to half share in the separate property of her husband along with her son. Subsequently the suit filed by the mother was decreed on 12th September, 1973.

2. The reason for rejecting the contention of Kandaswamy the petitioner herein given by the authorised officer as well as the Land Tribunal is that the lands were under the enjoyment of Kandaswamy on 15th February, 1970 and the village account also showed that the lands were in his name and the fact that civil proceedings were pending which were initiated in the year 1973 after the publication of draft statement under Section 10(1) need not be taken into account. The Land Tribunal was of the view that as the preliminary decree in the 'civil suit was passed after 2nd October, 1970 the preliminary decree will not be valid and the decree passed in favour of Ponnammal on 12th September, 1973 in O.S. No. 411 of 1973 cannot be taken note of. The Land Tribunal was of the view that Section 3(14)(ii) and Section 21-A(a) do not indicate that if a person has got a preexisting right in respect of certain properties and a preliminary decree is passed after the notified date such preliminary decree can be held to be valid. The Land Tribunal rejected the contention that the preliminary decree passed on 12th September, 1973 is only an adjustment of pre-existing right which Ponnammal had in respect of the properties, and that the decree must be held to be valid.

3. The provisions of law that are relied on by the Land Tribunal are Sections 3(14)(ii) and 21-A(a). Section 3(14)(ii) states that '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 minor grandsons and unmarried grand-daughters in the male line, whose father and mother are dead. In this case, the petitioner herein is the son and his family cannot include his mother. Section 3(14)(ii) cannot be availed of against the petitioner Kandaswamy. The next section that is relied on is Section 21-A(a). Section 21 relates to ceiling on future acquisition by inheritance, bequest or by sale in execution, of a decree. Section 21-A is in the form of a proviso to Section 22. Section 22 relates to transfer or partition made on or after the date of the commencement of the Act but before the notified date. It provides that the Authorised Officer may declare any transfer or partition to be void if the transfer or partition was for the purpose of defeating any of the provisions of this Act. Subsequently this section was amended but it is not material to refer to the amendment. Section 21-A which is in the nature of a proviso to Section 22 states that under certain circumstances a partition or transfer shall be valid. Section 21-A(a) which is relied on by the land Tribunal provides that 'Notwithstanding anything contained in Section 22 or in any other provision of this Act and in any other law for the time being in force, where, any person has effected by means of a registered, instrument a partition of his holding or part thereof such partition shall be valid. In order to avail the benefit, of this proviso the partition must be by a registered instrument. But in this case the petitioner Kandaswamy does not rely on any registered instrument of partition. His plea is that in law he was not entitled to 19 acres as his mother is entitled to half of his father's property. The Court below was in error in invoking the provision of Section 21-A(a). In law, on the death of the father of the petitioner Kandaswamy, after the Hindu Women's Right to Property Act came into force, the petitioner as well as his mother is entitled to half share each and this position of law was erroneously not recognised by the Authorised Officer. The suit filed by the mother and the decree that ensued only clarified the existing position of law and the rights of parties and did not effect a transfer or partition after the Act came into force. In this view, the petitioner is right in his contention that the Authorised Officer was in error in including the share of his mother. The petitioner will be entitled only to an amount less than 10 acres and therefore no question of declaration of surplus arises.

4. This petition is allowed. There will be no order as to costs.


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