PETITIONER:
KATTITE VALAPPIL PATHUMMA & ORS.
Vs.
RESPONDENT:
THE TALUK LAND BOARD & ORS.
DATE OF JUDGMENT: 19/02/1997
BENCH:
K.S. PARIPOORNAN, S.P. KURDUKAR
ACT
HEADNOTE
JUDGMENT
JUDGMENT
Paripoornan, J.
This appeal by special leave is filed against the judgment of vision Bench of he Kerala High Court, rendered in C.R.P. No. 1894 of 1988 dated 18.7.1994. The appellants are the legal representatives of T. Mammad, the ’declarant’ under the Kerala Land Reforms Act, 1963 (hereinafter referred to as ’the Act’). The declarant had three wives. He filed a declaration regarding the land held and possessed by him before the Taluk Land Board, Taliparamba (hereinafter referred to as ’the Board’). In his statement, he had opted his wife Pathu (first wife) and here minor children as his "statutory family" by exercising the option specified in explanation I to section 82 of the Act. The Board, by order dated 28.8.1986 directed the declarant to surrender 190.54 acres of land held by him excess of the ceiling area. In revision, C.R.P. No. 2131 of 1986 the High Court set aside the order of the Board and ordered a remit. Thereafter the Board by order dated 28.6.1988 passed a fresh order determining 97.16 acres as surplus land and, therefore, the declarant was directed to surrender the remaining area. The order so passed by the Board was assailed in revision before the High Court of Kerala in CRP No. 1894 of 1988. The declarant and after his demise his legal representatives contended that the declarant having three wives and ten children in the three wife and her children shall be deemed to be a separate family under explanation I to section 82 of the Act and, therefore, the ceiling area in respect o each family has to be deducted from the total holding of the declarant. This plea was repelled by the High Court. The High Court held thus:-
"The properties of the husband, the
wife named by him and their
unmarried minor children will be
taken into account for the purpose
of determining the ceiling area as
if they constitute one family.
Regarding the other family
constituted by the other wife and
her unmarried minor children, the
ceiling provisions are to be
enforced as if they constituted a
separate family and their
properties alone will be taken into
account for that purpose. In other
word, the properties of the husband
will not be taken into account for
the purpose of fixing the ceiling
area of the family constituted by
that wife and her children. This
position has been made clear by the
explanation, the intention of which
was to confine the family to the
husband and one of the wives and
their unmarried minor children for
the purpose of the ceiling
provisions of the Act.
(Emphasis supplied)
The High Court observed further :-
" When the husband and one of the
wives and their children constitute
one family the ceiling area has to
be determined on the basis of the
properties possessed or owned by
them and not by the other wife or
wives as the case may be. The
properties possessed or owned by
the other wife or wives are not
taken into account for the purpose
of determining the ceiling area of
the family constituted by the
husband, the wife named by him and
their children."
(emphasis supplied)
It was noticed by the High Court that the order passed by the court in CRP No. 1891 of 1988 to exclude an extent of 15 acres was not given effect to by the Board. So, an extent of 15 acres directed to be deleted by the order in CRP No. 1891 of 1988 was directed to be excluded from the properties mentioned in part D of the order showing the lands to be surrendered. The revision filed by the declarant was allowed in part. Since the declarant is no more the legal representatives have come up in appeal against the said order passed in revision by the High Court dated 18.7.1994 modifying the order of the Board. 2. We heard counsel. The submission made before High Court was repeated before us. Counsel contended that the declarant having three wives and ten children by the said three wives each wife and the children by her shall be deemed to be separate family under the explanation i to section 82 of the Act, and, therefore, the ceiling area in respect of each family has to be deducted from the total holdings of the declarant. It was argued that the other wives and their minor children shall be deemed to be separate families and so the ceiling area in respect of each such family has to be deducted from the total holdings of the declarant so that the other two wives and their minor children shall not be deprived of their legitimate right to get a larger area. On the other hand, counsel for the respondent-State submitted that on a fair and proper reading of section 82 along with the explanations, it will be evident that when a declarant husband has plurality of wives and children, by exercise of the option under explanation I, the husband can be a member of only one such family and not of all the families simultaneously and only the lands owned by the husband and the family so chosen by him will be taken into account for calculating the ceiling area of a family. It was argued, that the lands owned of possessed by the other wives and members of their families will not be taken into account for the purpose of fixing the ceiling area in respect of the family constituted by the husband, one o his wives and unmarried minor children in that wife, which constitute the statutory family for the purpose of computing the ceiling area. section 82 was understood and interpreted in the light by the High court of Kerala ever since the Act came into force and the High Court in the impugned judgment has only given effect to the said legal position. A different view is not warranted specially at this state when the law laid down by the High Court and followed in the impugned judgment has held the field for more than two decades. 3. On hearing the rival pleas, we are of the view that the judgment of the High Court does not call for any interference. 4. Section 2(14) of the Act defines ’family’. It States:-
" "Family" means husband, wife and
their unmarried minor children or
such of them as exist."
Section 82 of the Act along with explanation is as follow:-
"82. Ceiling area -(1) The ceiling
area of land shall be,-
(a) In the case of an adult
unmarried person or a family
consisting or a sole surviving
member, five standard acres, so
however that the ceiling area shall
not be less that six and more than
seven and a half acres in extent:
(b) In the case of family
consisting of two or more, but not
more than five members, ten
standard acres, so however that the
ceiling area shall not be less than
twelve and more than fifteen acres
in extent;
(c) In the case of a family
consisting of more than five
members, ten standard acres
increased by one standard acre for
each member in excess of five, so
however that the ceiling area shall
bot be less that twelve and more
than twenty acres in extent; and
(d) In the case of any other
person, other than a joint family,
ten standard acres so however that
the ceiling area shall not be less
than twelve and more that fifteen
acres in extent.
(2) For the purposes of this
Chapter, all the lands owned or
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 owned or held by
the family.
(3) In Calculating the extent of
land owned or held by family or an
adult unmarried person, the shares
of the members of the family or the
adult unmarried person, as the case
may be, in the lands owned or held-
(a) by one or more of such members
jointly with any person or persons
other than a member or members of
such family or by such adult
unmarried person jointly with any
other person or persons; or
(b) by a co-operative society or a
joint family, shall be taken into
account.
Explanation - For the purposes of
this sub-section, the share of a
member of a family or an adult
unmarried person in the land owned
or held jointly or by a co-
operative society or a joint family
shall be deemed to be the extent of
land which would be allowed to
such member or person had such
lands been divided or partitioned,
as the case may be, on the date
notified under section 83.
(4) Where, after the commencement
of this act, any class of land
specified in Schedule II has been
converted into any other class of
land specified in that Schedule or
into a plantation, the extent of
land liable to a surrendered by a
person owning or holding such land
shall be determined without taking
into consideration such conversion.
(5) The land owned or held by a
private trust or a private
institution shall be deemed to be
lands owned or held by the person
creating the trust or establishing
the institution, or, if he is not
alive, by his successors-in-
interest.
(6) In computing the ceiling area,
lands exempted under section 81
shall be excluded.
Explanation I - For the purposes of
this section, where a person has
tow or more legally wedded wives
living, the husband, one of the
wives named by him for the purpose
and their unmarried minor children
shall be deemed to be one family
and the other wife or each of the
other wives and her unmarried minor
children shall be deemed to be a
separate family.
Explanation II - For the purposes
of this section, and adult
unmarried person shall include a
divorced husband or divorced wife
who has not remarried:
Provided that if such divorced
husband or divorced wife is the
guardian of any unmarried minor
child, he or she together with such
unmarried child shall be deemed to
be family."
(emphasis supplied) 5. Section 82 of the Act came up for consideration before a Division Bench of the High Court of Kerala in Kesava Menon vs. State of Kerala and another (1976 KLT 408). The facts of the case, the plea put forward and the decision are neatly stated in paragraphs 1 to 3 of the judgment thus:-
"One Kesawa Menon who has two wives
owns extensive lands. While he has
no issue through his first wife he
has issues through the second put
their number is not more than four.
In the statement he filed under
section 85(2) of he Act regarding
excess land he treated his two
wives as members of two different
families and named the first wife
as a member of his family. The
Taluk Land Board treated his first
wife as a member of his family and
fixed the ceiling area of his lands
accordingly as for one family,
namely 14.91 acres, and directed
him to surrender the excess portion
of 67.44 acres. It is the
correctness of the order that is
challenged in these revision
petitions, one of which is filed by
Kesava Menon and his two wives and
the other by the heirs of a
transferee of some of his lands.
xxxx xxx xxxx
The Contention of the petitioners
in these tow Revision Petitions is
that if a person who owns lands has
tow wives and they have not lands,
as regards his lands the ceiling
limit is that for two families and
that is justified by Explanation I"
(emphasis supplied)
Delivering the judgment on behalf of the Bench Narayana Pillay, J. Stated the Law thus:-
"If a person has tow wives,
including them and his children
through them, as a matter of fact
in the ordinary sense there is only
one family. But Explanation I has
introduced a fiction by which he is
allowed to treat the two wives with
their children as constituting tow
separate families. Along with the
granting of that privilege a
restriction is also placed by the
Explanation. The restriction is
that he can be a member of only one
of such families to be chosen by
him and not of both the families
simultaneously. That the husband
can be a member of only one of the
families is an integral part of the
Explanation. While cub section (1)
has fixed the ceiling area
subsection (2) has prescribed the
lands to be taken into account in
calculating the ceiling area of a
family. Sub Section (2) says that
in calculating the lands owned by a
family those owned individually and
jointly by the members of that
family should be taken into account
and Explanation I is a explanation
to the entire section including sub
Section (2). The result is that
although nationally the second wife
of Kesava Menon and her issues
constitute a separate family, as he
is not a member of that family his
lands cannot be taken into account
in fixing the ceiling area of that
family. Otherwise it would lead to
the absurd consequence of having to
take into account the lands of a
stranger to a family also in fixing
the ceiling of the family. If the
husband cannot be a member of both
the families at the same time it
inevitably follows that his lands
can be taken into account only in
calculating the ceiling area of the
family to which he is deemed to
belong. It was the same conclusion
that was reached by our learned
brother, Viswantha Iyer J, in
Kuttan V. State of Kerala and
Others, 1976 KLT 49. In the present
case the Taluk Land Board was right
in fixing the ceiling area of the
lands held by Kesava Menon as 14.91
acres and directing him to
surrender 67.44 acres as excess
land."
(emphasis supplied) 6. In a later decision in Mavilammal vs. Taluk land Board (1984 KLT 962) the declarant having tow wives , opted to treat the second wife and children as member constituting his family. The question arose as to whether the other wife and children should be treated as another family entitling them to share the properties for purpose of ceiling limits. Bhaskaran, Acting Chief Justice, held thus:-
"It was argued on behalf of the
petitioner that unless the first
wife and her children also are
treated as a separate family
entitled to the properties of the
declarant in the ceiling
proceedings, it would cause
hardship as far as the first wife
who is not named by the declarant
to be his wife for the purpose of
the ceiling provisions, and the
children born to the declarant in
that wife. He submitted that the
purpose of the Explanation is a
ensure that where the declarant has
more wives than one, then each wife
with her minor children should be
treated as persons who are entitled
to claim share in the property for
the purpose of the ceiling area. In
other words, according to him, it
is only after setting apart
sufficient land permitted for two
families, the extent depending upon
the number of persons constituting
each family, that the balance area
should be ordered to be
surrendered. The scheme of the Act,
According to me does not permit his
interpretation inasmuch as the
declarant could be a member of one
of the families only: and the
determination of the ceiling area
has to be made with reference to
his statutory family which includes
himself, if any, born in that wife.
For that matter even the major sons
and daughters might fall out of the
ambit of the statutory family."
(emphasis supplied)
We are of the view that the aforesaid decisions lay down the law correctly. The High Court was justified in holding that only the lands owned by the husband and the family chosen by him (as per explanation I to section 82 of the Act) will be taken into account for calculating the ceiling area of a family. The land owned and possessed by the other wives and members of their families will not be taken into account for the purpose of fixing the ceiling area in respect of the statutory family constituted by the husband as aforesaid. It is not permissible to treat the other wives and their children as separate families and then to deduct the ceiling area for each of such family from the total holding of the declarant husband. We concur with the reasoning and conclusion of the High Court. We are further of the view, that even if another view is possible, we are not inclined to take a different view at this distance of time. Interpretation of the law is not a mere mental exercise. Things which have been adjudged long ago should be allowed to rest in peace. a decision rendered long ago can be over-ruled only if this Court comes to the conclusion that it is manifestly wrong or unfair and nor merely on the ground that another interpretation is possible and the court may arrive at different conclusion. We should remember that the law laid dow by the High Court in the above decision has not been doubted so far. The Act in question is State enactment. These are weighty considerations to hold that even if different view is possible, if it will have the effect of upsetting or re-opening past and closed transactions or unsettling titles all over the State, this Court should be loathe to take a different view. On this ground as well, we are not inclined to interfere with the judgment under appeal. 7. The judgment of the High Court of Kerala rendered in C.R.P. No. 1894 of 1988 is affirmed. The appeal is dismissed. There shall be no order as to casts.