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Antony Viagulam Fernando, Through His Power of Attorney Augustine Vs. the Authorised Officer (Land Reforms) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ209
AppellantAntony Viagulam Fernando, Through His Power of Attorney Augustine
RespondentThe Authorised Officer (Land Reforms)
Cases ReferredDelhi v. Employees of
Excerpt:
- s. nainar sundaram, j.1. antony viagulam fernando--the landowner within the meaning of tamil nadu land reforms (fixation of ceiling on land) act, lviii of 1961, hereinafter referred to as the act, is the petitioner in this revision. the landowner held an extent of 25.49 ordinary acres. he had a son by name selvakumar, who held an extent of 43.09 ordinary acres. the landowner has a wife by name celia costa. the landowner has an unmarried daughter by name marina. out of the total extent of 25.49 ordinary acres, the landowner executed a deed of settlement on 30th september, 1970, giving his unmarried daughter marina an extent of 7.53 ordinary acres. on the same day, the mother of the landowner and the grandmother of marina settled on marina an extent of 7 ordinary acres. the son selvakumar.....
Judgment:

S. Nainar Sundaram, J.

1. Antony Viagulam Fernando--the landowner within the meaning of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, LVIII of 1961, hereinafter referred to as the Act, is the petitioner in this revision. The landowner held an extent of 25.49 ordinary acres. He had a son by name Selvakumar, who held an extent of 43.09 ordinary acres. The landowner has a wife by name Celia Costa. The landowner has an unmarried daughter by name Marina. Out of the total extent of 25.49 ordinary acres, the landowner executed a deed of settlement on 30th September, 1970, giving his unmarried daughter Marina an extent of 7.53 ordinary acres. On the same day, the mother of the landowner and the grandmother of Marina settled on Marina an extent of 7 ordinary acres. The son Selvakumar died on 16th November, 1967. He is said to have a left a will dated 30th May, 1967 under which the lands held by him of an extent of 43.09 ordinary acres, have been bequeathed in equal moieties to the mother Celia Costa and to one Francis Baldans, stated to be a close associate of Selvakumar. Proceedings under the Act have been taken by the Authorised Officer (Land Reforms), Koviloatti, in respect of the above holdings. All the lands viz., 25.49 ordinary acres which stood in the name of the landowner, including 7.53 ordinary acres gifted away to his daughter Marina; 43.09 ordinary acres which stood in the name of Selvakumar, the Revenue Registry in respect of which is transferred in the name of the mother Celia Costa subsequently; and 7 ordinary acres gifted to Marina by her grandmother, have been pooled for the purpose of the Act and the Authorised Officer passed orders under Section 9(2)(b) of the Act. The Authorised Officer declined to give effect to the Will and did not take note of the settlements in favour of the daughter, Marina.

2. Aggrieved by the order of the Authorised Officer, the landowner preferred an appeal C.M.A. (L.T.) No. 2 of 1976 which was heard and disposed of by the Land Tribunal (Subordinate Judge), Tuticorin and the Land Tribunal except with regard to the settlements in favour of the daughter Marina, found no justification for interference and dismissed the appeal. In respect of the lands covered by the settlements in favour of the daughter Marina, the Land Tribunal directed that the matter could be agitated in the course of the enquiry under Section 10(5) of the Act. The present revision is directed against the judgment and decree of the Land Tribunal.

3. Mr. K. Parasaran, learned Counsel appearing for the petitioner impeaches the judgment of the Land Tribunal on four grounds. It must be noted that the submissions of the learned Counsel are only on the very same four grounds on which the Land Tribunal would not countenance the claims of the landowner. The first ground on which the Land Tribunal declined to countenance the will dated 30th May, 1967, said to have been executed by the son Selvakumar is that, the said will come within the mischief of Section 213 (1) of the Indian Succession Act, (XXXIX of 1925.) Section 213 (1) reads as follows:

No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

The will is stated to have been executed by the deceased Selvakumar in Ceylon. There is no dispute that with regard to the will in question no Court of competent jurisdiction in India has granted probate of the same or granted letters of administration with the Will or with a copy of an authenticated copy of the will annexed within the meaning of Section 213 (1) of the Indian Succession Act. The submission of Mr. K. Parasaran on this question is, the Authorised Officer functioning under the Act is neither a 'Court' nor a 'Court of justice', so that it could be stated that the satisfaction of Section 213 (1) of the Indian Succession Act is mandatory for the purpose of establishing the rights under the will. According to the learned Counsel, the Authorised Officer functions for a specifed purpose adumbrated in the Act and he cannot be equated to a Court or a Court of Justice, so as to say that before the will could be pressed into service to show the devolution of the rights in the properties covered by the will, it ought to have been probated within the meaning of Section 213 (1) of the Indian Succession Act. This submission of the learned Counsel is not without substance. Mr. K. Venkataswami, learned Additional Government Pleader appearing for the respondent, does not dispute the proposition that if the Authorised Officer is not a 'Court' or a 'Court of justice' within the meaning of Section 213 (1) of the Indian Succession Act, the satisfaction of the requirements under that section cannot be insisted upon before the devolution of the rights in the properties as set out in the w ill could be countenanced. The bar to the establishment of the rights under Section 213 (1) of the Indian Succession Act is only for its establishment in a 'Court of justice' and not its being referred for to and relied on in other proceedings before administrative or other tribunals. Hence, the question that comes up for consideration is as to whether the Authorised Officer functioning under the Act is a 'Court' or a 'Court of justice' within the meaning of Section 213 (1) of the Indian Succession Act. Halsbury's Laws of England, Fourth Edition, Volume 10, Paragraph 701 deals with the meaning of 'Court' as follows: --

701. Meaning of 'Court'. Originally the term 'Court' meant, among other things, the Sovereign's palace. It has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the Sovereign. All tribunals, however, are not Courts, in the sense in which the term is here employed. Courts are tribunals which exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction. Thus, arbi rators committees of clubs and the like, although they may be tribunals exercising judicial functions, are not 'Courts' in this sense of that term. On the other hand, a tribunal may be a Court in the strict sense of the term even though the chief part of its duties is not judicial. Parliament is a Court. Its duties are mainly deliberative and legislative, the judicial duties are only part of its functions. A coroner's Court is a true Court although its essential function is investigation.

4. Again, at paragraph 702, as to what is a Court in law is set out in the following terms:

702. What is a Court in law? The question is whether the tribunal is a Court, not whether it is a Court of justice, for there are Courts which are not Courts of justice. In determining whether a tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that it has no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial especially if the statute setting it up prescribes a penalty for making false statements; elements to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.

A tribunal is not necessarily a Court in the strict sense of exercising judicial power merely because (1) it gives a final decision; (2) it hears witnesses on oath; (3) two or more contending parties appear before it between whom it has to decide; (4) it gives decisions which affect the rights of subject; (5) there is an appeal to a Court; and (6) it is a body to which a matter is referred by another body.

5. In R.M Seshadri v. Second Additional Income-tax Officer : [1954]25ITR400(Mad) a Division Bench of this Court consisting of Satyanarayana Rao and Rajagopalan, JJ., had occasion to consider the question as to whether the Income-tax Appellate Tribunal, constituted under the Income tax Act, is a 'Court'. The learned Judges, after elaborately discussing a number of authorities throwing light on this question, answered the question in the negative. The following passage in the judgment of the learned Judges, at page 808, is useful to assess the question in the present case also:

A definition of Court is to be found in Stroud's Judicial Dictionary in which it is stated that a Court is a place where justice is judicially administered. The difficulty at the present juncture is created on account of the establishments of administrative Tribunals, which are vested with jurisdiction to decide certain matters of a quasi-Judicial nature. It is often a very difficult task to draw the line, and distinguish a Court from an administrative tribunal exercising quasi-judicial functions. Merely because the administrative Tribunals have the trappings of a Court, they are not Courts in the sense of exercising judicial power.

6. With regard to the application of the provisions of the Limitation Act to proceedings before the Authorities who are creatures of statutes, Courts, including the highest in this land, have uniformly held that such statutory functionaries are not 'Courts' so as to attract the provisions of the Limitation Act. In Athani Municipality v. Labour Court, Hubli : (1969)IILLJ651SC the Supreme Court declined to apply the provisions of the Limitation Act to an application under Section 33-C (2) of the Industrial Disputes Act. At page 1343 of the report, the relevant passage reads as follow:

One factor at least remains constant and that is that the applications must be to Courts to be governed by the articles in this division. The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than Courts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not Courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure.

The same view has been reiterated in Nityanand v. Life Insurance Corporation of India : (1969)IILLJ711SC

7. In Nagireddy v. Khandappa : AIR1970Kant166 a Division Bench of the Mysore High Court, dealt with the questions as to the applicability of Section 5 of the Limitation Act to an application filed before the Munsif under Rule 17 of the Mysore Village Panchayats (Election of the Chairman and the Vice Chairman) Rules, 1959 The Bench held that the Munsif, functioning under the Rules is only a persona designata and hence the provisions of the Limitation Act cannot be invoked. In Bandoo Banaji v. Bhaskar Balaji : AIR1972Kant311 another Division Bench of the Mysore High Court held that the Tribunal under the Mysore Land Reforms Act, 1961 is not a 'Court' and the Division Bench relied on the decisions of the Supreme Court referred to above.

8. In Ganapathy v. Kumaraswami (1975) 2 M.L.J. 197 the question posed before Cokulakrishnan, J., was as to whether the provisions of the Limitation Act could be invoked for the purposes of proceedings before the Appellate Authority under the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960). The learned Judge, after considering the provisions of Act XVIII of 1960 in the light of the judicial pronouncements, found that the Appellate Authority is a creature of statute and he is only a persona designata and hence the provisions of the Limitation Act cannot be applied to proceedings before him.

9. In Commissioner of Sales Tax v. Parson Tools and Plants : [1975]3SCR160 the Supreme Court held that the Appellate Authority and the Judge (Revisions), Sales Tax, exercising jurisdiction under the Sales Tax Act are not 'Courts' but are merely administrative tribunals.

10. In Sushila Devi v. Romnandan Prasad : [1976]2SCR845 the Supreme Court was concerned with an application under Section 3 of Kosi Area (Restoration of ands to Raiyats) Act (XXX of 1951). On the question as to the applicability of Section 5 of the Limitation Act to such an application, the Supreme Court observed as follows (at page 182):

We do not see how Section 5 could be invoked in connection with the application made on 17th October, 1975 by the first respondent. Under Section 5 of the Limitation Act an appeal or application 'may be admitted after the prescribed period if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period'. The Collector to whom the application was made was not a Court, though Section 15 of the Act vested him with certain specified powers under the Code of Civil Procedure; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise.

11. In Nachimuthu Gounder v. Kanagarathnam C.R.P. No. 838 of 1975 (1977) T.L.N.J.393 Ramaprasada Rao, J., as he then was, was meeting the argument that in respect of an application for restoration under Section 4(5). of the Tamil Nadu Cultivating Tenants' Protection Act (XXV of 1951), Section 5 of the Limitation Act can be taken aid of, the learned Judge found that the Revenue Divisional Officer or Revenue Court is not a 'Court', even though it has the trappings of a Court in that certain provisions of the Code of Civil Procedure are made applicable to a proceeding before it. In that view, the learned Judge negatived the plea for application of the Limitation Act to such proceedings before such forums.

12. Coming to the present Act, the constitution of the Authorised Officer under Section 3(5) of the Act seems to be on terms similar to the constitution of the Controller under the Tamil Nadu Buildings (Lease and Bent Control) Act (XVIII of 1960). Section 3(5) of the Act reads as follows:

Authorised Officer' means any Gazetted Officer authorised by the Government by notification to exercise the powers conferred on, and discharge the duties imposed upon, the Authorised Officer under this Act for such area as may be specified in the notification.

The scope of the powers conferred on the Authorised Officer does not make them judicial and the decisions which he has to give under the provisions of the Act cannot be equated to judicial decisions of Courts. The following passage in Cooper v. Wilson (1937) 2 K.B. 309 succinctly lays down the position as to what would constitute a true judicial decision.

A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, then the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.

13. In this context, it would be pertinent to refer to Section 11 of the Act with regard to the scope of the powers of the Authorised Officer to decide questions of title in certain cases. It says that he has got powers to decide such questions summarily and that summary order could be the subject-matter of a regular suit under Sub-section (3). Whenever the decision involves a substantial question of law or of fact, the Authorised Officer is enjoined to refer the matter to the Land Tribunal for its decision. This is embodied in Sections 11 (2), 16 (3)(a)(iv) and 51 (3) of the Act. This definitely does not satisfy the fourth requisite contemplated in Cooper v. Wilson (1937) 2 K.B. 309 It is brought to my notice that Rule 11 of the Rules framed under the Act invokes certain provisions of the Code of Civil Procedure, to govern the procedure to be followed by the Authorised Officer. This would not alter the position. There is no warrant for holding that a statutory functionary, who is not a 'Court' would become a 'Court' merely because some or the other of the procedural provisions of the Code of Civil Procedure would govern the conduct of proceedings before it. As pointed out in Sushila Devi v. Ramnandan Prasad : [1976]2SCR845 and Nachimuthu Gounder v. Kanagarathnom C.R.P. No. 838 1975 ; (1977) T.L.N.J. 393 merely because the satutory functionary has the trappings of a 'Court' by the investiture of the procedural powers under the Code of Civil Procedure, it cannot be equated to a 'Court'. It is significant to note that Rule 11 lavs down that the proceedings of the Authorised Officer shall be summary. Section 20 of the Indian Penal Code defines 'Court of justice' as under:

The words 'Court of justice' denote a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.

Section 19 of the Indian Penal Code defines 'Judge' as follows:

The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, Civil or Criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons which body of persons is empowered by law to give such a judgment.

The following passage in Brajnandan Singh v. Jyoti Narain : 1956CriLJ156 is also elucidative on the point:

The pronouncement of a definitive judgment is thug considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.

In view of the provisions of the Act, it is not possible to hold that the Authorised Officer gives any definitive judgment on substantial questions of law or of fact.

14. The only conclusion which could emerge from the preceding discussion is, the Authorised Officer under the Act cannot be equated to a 'Court' or a 'Court of Justice for the purposes of Section 213 (1) of the Indian Succession Act. If this position is accepted, then it would not be proper to insist upon the satisfaction of the requirements under Section 213 (1) of the Indian Succession Act with regard to the will in question.

15. The second ground on which the Land Tribunal declined to accept the will is that under Section 68 of the Evidence Act, the will must be proved before the Authorised Officer, by calling at least one attesting witness. The argument of Mr. K. Parasaran, learned Counsel appearing for the petitioner, is that the Authorised Officer could not also fall within the definition of a 'Court' under the Evidence Act and hence, to invoke the provisions of the Evidence Act for the purpose of proof of the will in question is a misconception. I am not able to appreciate and accept this submission of the learned Counsel in view of the implications of the provisions of the Evidence Act. Section 1 of the Evidence Act states that the Act applies to all judicial proceedings in or before any Court. Section 3 of the Evidence Act defines 'Court' in the following terms:

Court' includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.

It has been pointed out by the Supreme Court in Brajnandan Singh v. Jyoti Narain : 1956CriLJ156 that the definition of 'Court' in Section 3 of the Evidence Act is not exhaustive, but framed only for the purpose of that Act and is not to be extended where such an extension is not warranted. This clearly indicates that the Evidence Act has got a purpose to serve and to serve that purpose persons who are legally authorised to take evidence, can come within the meaning of 'Court' under Section 3 of the Evidence Act. As pertinently pointed out by the Division Bench in State of Uttar Pradesh v. Ratan Shukla : AIR1956All258 the words 'legally authorised' contemplate a positive authorisation.

16. It is true that the right to receive evidence is not an incident of any forum, judicial or otherwise. But, if the statute which constitutes the forum, confers a power on it to receive evidence, that would definitely bring the forum within the meaning of 'Court' under the Evidence Act. In the course of proceedings before the Authorised Officer, the adducing of evidence before him is contemplated. Section 9(2)(6) of the Act enables the person concerned to make his representation and adduce evidence; and this representation and evidence will have to be the subject-matter of consideration under Section 10 of the Act by the Authorised Officer In this context, Rule 11 framed under the Act, when it says that the provisions of the Code of Civil Procedure with regard to the examination of parties and witnesses shall govern the proceedings of the Authorised Officer, cannot be lost sight of the considerations which should weigh for the purpose of finding out as to the applicability or otherwise of the Evidence Act to a particular proceeding, will be different from those for the purpose of finding out as to whether a particular forum is a 'Court' or a 'Court of Justice' or not within the meaning of Section 213(1) of the Indian Succession Act. The definition of a 'Court' for the purpose of the Evidence Act, as embodied in Section 3 thereof appears to be wider in scope. It can take in persons legally authorised to take evidence.

17. Under Section 11(3) of the Industrial Disputes Act, 1947, every Board, Court, and Tribunal constituted under that Act has been granted the same powers as one vested in the civil Courts under the Code of Civil Procedure, when trying a suit, in respect of enforcing the attendance of any person and examining him on oath. Construing the above provisions, Sinha, J., in Burrakar Goal Co., Ltd. v. Labour Appellate Tribunal : (1958)IILLJ580Cal held that an Industrial Tribunal is a 'Court' within the definition of Section 3 of the Evidence Act. The learned Judge placed reliance on the following dictum of Mahajan, J., in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd, Delhi : (1950)NULLLLJ921SC with reference to the provisions of the Industrial Disputes Act:

It is difficult to conceive in view of those provisions that the Industrial Tribunal performs any functions other than that of a judicial nature.

18. The duty enjoined on the Authorised Officer to take evidence if offered and consider the same under Sections 9(2)(6) and 10 (1) of the Act read with Rule 11 framed under the Act, bring the proceeding before the Authorised Officer within the complex of judicial proceedings. Such evidence cannot, but be legal evidence'

19. Hence, I am inclined to hold that the Authorised Officer will definitely come within the definition of 'Court' under Section 3 of the Evidence Act. The term 'judicial proceeding' occurring in Section 1 of the Evidence Act has not been defined by the said Act. Section 2(i) of the Code of Criminal Procedure, 1973, corresponding to Section 4(m) of the Code of Criminal Procedure, 1898, defines 'judicial proceeding' as follows:

Judicial proceeding' includes any proceeding in the course of which evidence is or may be legally taken on oath;

If, in the course of a proceeding evidence is permitted to be taken and the decision in the proceeding is to rest on such evidence, the proceeding will come within the definition of 'judicial proceeding'. For all the reasons stated above, it must be held that the application of the Evidence Act cannot be eschewed for the purpose of proceedings before the Authorised Officer under the Act. The truth, genuineness and validity of the will in question in the eye of law, before it could be accepted for the purpose of the present proceedings, need not be over-stressed. They have got to be proved before the Authorised Officer, before he could be called upon to accept and act upon them. The Authorised Officer points out that the attesters of the will are also residents of Ceylon and in spite of the opportunities given to the landowner's power agent he could not offer adequate proof of the will' Since it has now been held that obtaining probate within the meaning of Section 213 (1) of the Indian Succession Act need not be insisted upon before the will could be acted upon and accepted for the purpose of the proceedings before the Authorised Officer, I am inclined to grant a further opportunity to the landowner to prove the truth, genuineness and validity of the will in the eye of law before the Authorised Officer and for this purpose, the matter will have to be remitted back to the Authorised Officer for a fresh consideration.

20. The third ground which has weighed with the Land Tribunal on the question of the will is that the will has not been acted upon. May be, after the death of the son Selvakumar, the Revenue Registry was transferred in the name of the mother Celia Costa. But, on that ground the Court cannot hold that the will has not been acted upon If once the willing accepted as a genuine and true document, the rights of the parties under the will have got to be given effect to and it is not possible to ignore the incidence of devolution of rights under the will on the ground that the will has not been acted upon, unless such rights are put an end to in any manner known to law I find that the statement that the will has not been acted upon, cannot be sustained because the order of the Authorised Officer clearly states that both the mother Celia Costa and Francis Baldans, the other legatee submitted separate returns on 12th December, 1975 and 18th December, 1975 respectively, showing equal moieties in the properties and they have agitated their rights by engaging a general power agent. Hence, this reasoning of the Land Tribunal cannot be sustained.

21. The fourth aspect of the case is with reference to the extents covered by the settlement deeds dated 30th September, 1970 in favour of the daughter Marina. The Tribunal accepts that the said settlements could survive in view of the provisions of Section 21-A (b) read with Section 3(14), Explanation II (b) of the Act. Having found a warrant for countenancing such settlements, the Tribunal wants to relegate the questions of their consideration to the stage of enquiry under Section 10(5) of the Act on the ground that this point has not been discussed by the Authorised Officer in his order in appeal before it. This approach cannot be sustained for the simple reason that a matter which is borne out by records could as well be decided at the earliest stage of the proceedings under the Apt and it is not conducive to relegate it to a later stage. In view of the position in law which warrants the exclusion of the extents covered under those two settlement deeds, the proceedings against the landowner cannot include those extents.

22. For the reasons set out above, this revision is allowed and the matter is remitted back to the Authorised Officer (Land Reform), Kovilpatti, for the purpose of adjudicating and deciding about, the truth, genuineness and validity of the will dated 30th May, 1967 said to have been left by Selvakumar, the son of the landowner and in the light of the above decision to further decide the tenability or otherwise of the proceedings under the Act. The landowner will be at liberty to adduce evidence and place materials before the Atthorised Officer in proof of the genuineness, truth and validity of the said will in the eye of law and the Authorised Officer will gave the landowner sufficient and reasonable opportunity and time for the said purpose. The Authorised Officer may exclude the extents covered by the two settlements dated 30th September, 1970 in favour of the daughter Marina from the holdings of the landowner. There will be no order as to costs in this revision.


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