PETITIONER:
STATE OF KERALA AND ORS.
Vs.
RESPONDENT:
K.A. GANGADHARAN
DATE OF JUDGMENT27/10/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SINGH, JASWANT
CITATION:
1977 AIR 311 1977 SCR (1) 960
1977 SCC (1) 208
ACT
Kerala Land Reforms Act 1964---Sec. 81, 83, 84, 85, 85A
and 86 Voluntary transfers made after notified date whether
valid.
HEADNOTE
The respondent held 28.4 acres of land and, therefore,
filed a return under Section 85(a) of the Kerala Land Re-
forms Act, 1964. In the return, he showed his family as
consisting of himself, his wife and 3 children. Section 84
of the Act provided that all voluntary transfers effected
after publication of the Kerala Land Reforms Bill, 1963,
except certain transfers which were excepted shall be
deemed to be transfers calculated to defeat the provisions
of the Act and invalid. The Act was amended by Act 35 of
1969’ which came into force on 1-1-1970. By virtue of the
said amendment, 1-1-1970 was declared as the notified date.
Section 83 provides that with effect from the notified
date no person shall be entitled to own, hold or to possess
land in excess of certain acres of land. Section 85(1)
provides that any person holding land in excess on notified
date shall surrender the excess. Section 85 and 85A are
the sections laying down the procedure for surrender of the
excess land. Section 86 provides that on determination of
the excess land under section 85 the same will vest in the
State. On 1-1-1970, the respondent had one major child and
two minor children. One minor child attained the age: of
majority in 1971 and another attained majority in 1973. In
March, 1973, 3 gift deeds were executed one in favour of
each one of the children. The respondent was called upon to
hand over the excess land on. the ground that the transfers
executed after 1-1-1970 in favour of the children who were
minor on 1-1-1970 will be ignored and the land will be
treated as land owned by the respondent. The respondent
filed his objections and contended that he and his wife were
the only members of the family and that if the transfers
were excepted he did not hold land in excess of the ceiling.
The Land Board came to the conclusion that out of the 28.4
acres of land held by respondents 3.9 acres were exempted
under section 81 and that the land measuring 3.8 acres
gifted to the major child was a valid gift and in addition
the respondent was entitled to hold 12 acres of land. He
came to the conclusion that the respondent was holding
excess land to the extent of 8.78 acres. The respondents
filed a Revision Petition in the High Court which allowed
the same.
In an appeal by Special Leave the respondent
contended:
(1) Section 83 is relevant only for fixing
ceiling. It does not say that a person or a
family loses his title on the notified date.
(2) Donees were not minors on the date of
gift. That would not constitute the members
of the family.
961
(3) Gifts in the present case are saved by
the last exception to section 84 which permit-
ted gifts to any person out of natural love
and affection or, at any rate, they are saved
by Amendment Act 17 of 1972 by which the
exception to Section 84 was made effective
from 16-8-1968, in favour of transfers by way
of gifts in favour of son or daughter or other
near relations.
(4) Sections 85 & 85A lay down the proce-
dure’ for surrendering the excess land.
Section 86 vests the excess land in the State.
The vesting takes place after the procedure
under sections 85 and 85A is over and till
then the respondent was the legal owner and
could have and in fact validly gifted the land
in question.
The appellants contended:
(1) The gifts made after 1-1-1970 were not
saved by exception to section 84.
(2) The view taken by the Single Judge has
been over-ruled by a Division Bench and Full
Bench of the same High Court.
Allowing the appeal,
HELD: (1,) The provisions of the Act dearly
establish the dominant legislative intent of
the imposition of the ceiling on laud holdings
and the consequential obligation to surrender
laud owned or hold in excess of the ceiling
area on the notified date, namely, 1-1-1970.
Section 84 was enacted because the Legislature
anticipated transfers with a view to. circum-
vent the provisions of law. Transfers between
15-8-1963 and 1-1-1970’ will be valid if
within the exceptions provided by section 84.
Transfers made after 1-1-1970 even of the
excepted varieties are to be ignored and
obligation to surrender the excess land on
1-1-70 cannot be excepted by voluntary
transfers made subsequent to.the notified
date. [964 G-H, 965 C-D]
(2) Notified date is 1-1-1970. That is the
relevant date for fixing ceiling. Subse-
quent changes in the constitution of
family are irrelevant- [965 H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1177 of 1975.
(From the judgment and order dated 10-10-1974 of the
Kerala High Court in Civil Revision Petition No. 734/74).
K.T. Harindranath, and K.M.K. Nair, for the appellants.
T.C. Raghavan and P.K. Pillai, for the respondent.
The Judgment of the Court was delivered by
RAY, C.J.--This appeal is by special leave from the judg-
ment dated 10 October, 1974 of the High Court of Kerala.
The respondent in the High Court challenged the order
of the Land Board directing him to surrender 8.78 acres of
land. The High Court declared on a revision petition that
the respondent was not liable to surrender the lands speci-
fied in the order of the Land Board.
The respondent flied a statement under section 85(a)
of the Kerala Land Reforms Act 2964 hereinafter called the
Act and showed there that the statement related to the
family consisting of himself, his wife and children. Two of
his children were minors on 1 January, 1970. The ceiling
area allowed under section 82(1) of the Act for a family
consisting of two or more but not more than five members is
10 standard acres which should not be less than 12 and more
than 15 ordinary acres in extent. On this footing the
respondent would be entitled to have not less than 12 acres
on the notified date, namely, 1 January, 1970. He was found
to have a total area of 28.38 acres. He alone was the owner
of all the lands. Out of 28.38 acres 3.87 acres were ex-
empted under section 81. Excluding 3.87 acres and another
12 acres for the ceiling area the excess land was 12.51
acres. A statement showing the determination was served on
him and his wife. They were asked to file objections.
Two of the respondent’s children a daughter and a son
who were minors on 1 January 1970 attained majority in 1971
and 1973 respectively. On 28 March, 1974 the respondent
executed three deeds of gift transferring a total extent of
12.83 acres to his three children. To the eldest of them a
daughter, who was a major on 1 January, 1970 he transferred
3.84 acres. To the second daughter who became a major in
1971 he transferred 3.85 acres and to his son who became a
major in 1973 he transferred 5.14 acres.
The respondent flied an objection on 5 April, 1974
stating that he and his wife who were the remaining members
of the statutory family did not hold more than the ceiling
area available to the family and therefore he was not
liable to surrender any excess land. The Land Board recog-
nised the gift to the eldest daughter who was a major on 1
January 1970 and required the respondent to surrender 8.78
acres which was the subject matter of the other two deeds of
gift.
The respondent’s contention which was accepted by the
High Court was repeated here. The contentions were these.
The donees were not minors on the date of the gift. There-
fore, the son and the daughter would not constitute members
of the family. Section 82 of the Act only fixes the. ceil-
ing area. The ceiling is 5 acres for an unmarried person of
a family consisting of one sole surviving member. The
ceiling is 6 acres for a family of two to five members, 12
acres for a family of more than 5 members, 10 acres in-
creased by one acre for each member in excess of 5 etc. The
respondent emphasises that the status or nature of the
person or the family is relevant. If a person is a single
member family on the relevant date, he cannot claim a
larger ceiling on the ground that he became a two member or
five member family later. Under section 83 of the Act the
notified date is 1 January, 1970. This notified date is
relevant only for fixing such ceiling. Section 83 does not
say that the particular person or family loses its title to
the excess land on that date. Section 84 of the Act has two
parts. The first part contains body of the section. The
second part contains exceptions. Therefore, it is said by
the respon-
963
dent that all voluntary transfers of excess land failing in
the body of the section shall be deemed to be transfers
calculated to defeat the provisions of the Act and shall be
invalid. The gifts in the present case are said by the
respondent to fall under the last exception of section 84
of the Act and it is said that the transaction is saved by
the last exception.
The respondent further contends that on 1 November, 1972
the Amendment ’Act 17 of 1972 deleted two exceptions in
section 84 of the Act with effect from 16 August, 1968. The
two deleted exceptions were first a transfer on account of
natural love and affection and second a transfer in favour
of a religious charitable or educational institution. The
Amendment Act of 1972 added an exception with effect from 16
August 1968. The exception is a transfer by way of gift in
favour of his son or daughter, or the son or daughter of his
predeceased ’son or daughter by any person owning or holding
land in excess of the ceiling area.
The respondent contends that in the present case the two
impugned gifts to a daughter and son respectively, and,
therefore, they come directly under the newly added excep-
tion introduced by Act 17 of 1972 and the exception is
deemed to be effective from 16 August, 1968. The respond-
ent further contends that section 85 and section 85A of the
Act lay down the procedure for surrendering the excess
land. Section 86 of the Act vests the excess land in the
Government. The vesting happens both on the determination of
the extent and other particulars of the lands, the ownership
or possession or both of which is or are to be surrendered.
The respondent contends that until then namely the vesting
of the land the owner of the land i.e. the respondent in
this case is the legal owner and his ownership or possession
is not diverted. He can therefore deal with the land in
legal valid manner. A gift under the last exception not
being hit by the invalidity contemplated by section 84 of
the Act is a valid gift, which the respondent was competent
to make.
The respondent contends that it is incorrect to say that
a gift coming within the last exception of section 84 is
ineffective after 1 January, 1970 inasmuch as such a
contention will make section 84 a dead letter after 1 Janu-
ary, 1970. It is said that it could not have been the
intention of the legislature which added the exception only
on 1 November, 1972. The exceptions introduced by the
Amendment Act of 1972 to section 84 are three. The first
is partition. The second is transfer to a person who has
been a tenant from 27 July 1960 up to the date of transfer.
The third is a transfer to a son or a daughter or a grandson
or grand daughter by a predeceased son or daughter. The
respondent submits that the intention of the legislature is
that in all these cases a person can transfer until he is
divested of his ownership under section 86. The respondent
further contends that the scheme of the Act and of the
Amendment Act of
964
1972 regarding gift is this. Until 16 August 1968 a gift to
any person is valid if the gift was out of natural love and
affection. After that date namely the amendment Act of 1972
only gifts to sons daughters and grand children of prede-
ceased children are valid.It is said that there is nothing
in the Act which says that an owner like the respondent
cannot deal with his land in a lawful and valid manner as
long as he is the owner thereof or as long as ownership is
vested in him. Section 87 of the Act says that where any
person acquires any land after the date notified under
section 83 by gift, purchase, mortgage with possession,
lease, surrender or any other kind or transfer inter vivos
or by bequest or insistence or otherwise and in conse-
quence thereof the total extent of land owned or held by
such person exceeds the ceiling area, such excess shall be
surrendered to such authority as may be prescribed.
Section 87 according to the respondent indicates that after
the notified date 1 January, 1970 valid gifts are possible,
as such gifts are saved by exceptions to section 84.
The Kerala Land Reforms Act Of 1964 came into force on 1
April 1964. On 1 January, 1970 the Kerala Land Reforms Act
as amended by Act 35 of 1969 came into force. The respond-
ent made gifts of his excess land on 28 March, 1974. On 5
April, 1974 the Land Board served notice on the respondent
saying that’ the gifts were invalid and directed the re-
spondent to surrender the excess Land in excess of the
ceiling area as found on 1 January, 1970.
On behalf of the State it is contended that the view taken
by the Single Judge in the present case has been over-ruled
by a Division Bench of the Kerala High Court in a decision
reported in 1975 K.L.T. 171. It is also said by the appel-
lant that the decision of the Division Bench is affirmed
by the Full Bench of the Kerala High Court in the Judgment
reported in 1976 K.L.T. 362.
Section 82 of the Act lays down the principles governing
the fixation of the land ceiling area in respect of differ-
ent categories of persons. Section 83 of the Act states
that with effect from the notified date no person shall be
entitled to own or hold or to possess under a mortgage
lands in the aggregate in excess of the ceiling area. Sec-
tion 84 of the Act provides that all voluntary transfers
effected after the publication of the Kerala Land Reforms
Bill 1963 in the Gazette, namely, 15 September 1963, other-
wise that in certain modes specified in section 84, shall be
deemed to be transfers calculated to defeat the provisions
of the Act and shall be invalid. Section 85(1) lays down
that if any person owns or holds land in excess of the
ceiling area on the notified date, such excess shall be
surrendered as provided in the section. Section 86 lays
down that on determination by the Land Board of the extent
and other particulars of the lands to be surrendered by the
person under section 85 the ownership or possession or both,
as the case may be, of the lands shall vest in the Govern-
ment free from any encumbrance. Section 87 deals with
cases where persons have acquired lands after the notified
date by transactions inter vivos, such as gift, purchase,
mortgage with possession
965
lease, surrender or by bequest, or inheritance etc. and in
consequence thereof the total extent of land owned or held
by such person exceeds the ceiling area, such excess lands
should also be surrendered to the prescribed authority and
that such land shall also vest in the Government under
section 86.
These provisions in the Act establish the dominant
legislative intent of the imposition of the ceiling on land
holdings and the consequential obligation to surrender lands
owned or held in excess of the ceiling area on the noti-
fied date, namely, 1 January 1970. The legislature noticed
the possibility that after the proposal to introduce the
Kerala Land Reforms Bill 1963 published in the Gazette on
15 August, 1963, there might be transactions of transfers
with a view to circumventing the provisions of the contem-
plated legislation. It is to meet the said situation that.
section 84 of the Act lays down that all such voluntary
transfers that have taken place subsequent to the date of
publication of the Bill, namely, 15 August 1963, otherwise
than in the limited modes specified in the said section,
shall be deemed to be transfers calculated to. defeat the
provisions of the Act and shall be invalid. It is apparent
that section 84 was enacted with a view to making the provi-
sions of sections 83 and 85 effective. For purposes of
calculation of the ceiling area and the determination of the
extent of the excess land to be surrendered by persons
account will be taken not merely of the land actually owned
and possessed by him on the notified date, namely, 1 January
1970, but also of land voluntarily transferred by him
subsequent to the date of publication of the Bill in the
Gazette on 15 August 1963 by transactions not falling within
the certain categories mentioned in section 84. Section 84
prohibits persons from transferring their excess lands
after 15 August, 1963 except as provided in that section.
The effect of sections 83 and 85 has been noticed by
this Court in the decision dated 20 August, 1976 in Civil
Appeals No. 907-909 of 1974 and Civil Appeals No.. 1354 and
1355 of 1975 (State of Kerala & Ors. v. Philomina(1). It
has been held there that the prohibition against ceiling
area under section 83 of the Act and the surrender of the
excess land under section 85 of the Act are both to be
determined with reference to the position as on the noti-
fied date under section 83 of the Act. The crucial date for
determining and surrendering the surplus land is 1 January
1970 and not any earlier date.
Transfers which have been effected between 15 August
1963 and 1 January 1970 will be treated as valid provided
they come within the excepted categories enumerated in
section 84 of the Act. The lands covered by such valid
transfers will be treated as properties belonging to. the
transferors on the notified date for purposes of determining
a ceiling area and the extent of excess land to be surren-
dered by him. In respect of transfers effected after 1
January 1970 the ceiling area applicable to a person and
the extent of his liability to
(1) [1977] 1 S.C.R. 273.
966
surrender, which became crystallised on 1 January 1970, will
determine the excess land to be surrendered. The obligation
to surrender the excess land owned or possessed by person as
on 1 January 1970 cannot be affected by voluntary transfers
even of the excepted varieties mentioned in section 84 of
the Act subsequent to the notified date. The transferor
will continue to be liable to surrender to the Government
the full extent of the excess land that was in his posses-
sion as on 1 January 1970.
The High Court erred in holding that the respondent was
not to surrender the land. The appeal is accepted for the
foregoing reasons and the judgment is set aside. Parties
will pay and bear their own costs.
P.H.P.
Appeal allowed.
967