ANNAMMA THOMAS v. SARAMMA MATHAI — 1976 DIGILAW 157 (KER)

Judgment :- 1. These two revision petitions arise out of the two final orders allowing resumption of portions of a holding under S.16 of Act 1 of 1964 as amended subsequently. These revision petitions are connected. The original respondent, the predecessor-in-interest of the revision petitioners was holding 28 acres 14 cents of nilom under one Chandi on lease. In a settlement deed executed by this Chandi in favour of his daughters-in-law, unmarried son and unmarried daughter, portions of these properties were allotted to these persons. One daughter-in-law, Sosamma Mathai, then applied for resumption of 3 acres 65 cents out of the above mentioned 28 acres 14 cents. Another daughter-in-law filed a similar application for resumption of 3 acres 51 cents out of the abovementioned 28 acres 14 cents. These applications were filed in 1965 within the period of one year mentioned in S.18 of the Land Reforms Act. The proceedings on the basis of these applications had a chequered career. On account of periodical re-constitution of the tribunals the proceedings got protracted and finally they were transferred to the Land Tribunal, Ernakulam. The application of Sosamma Mathai was re-numbered as O. A. No. 495 of 1971 and that of the other daughter-in-law re-numbered as O.A. No 465 of 1971. The predecessor of the appellants had taken op various contentions; but for the purpose of these revision petitions, it is necessary to mention only one of them, i.e., he pleaded that he was not in possession of land in excess of the ceiling area as he had, pending these proceedings, effected a partition of the leasehold among his children, who are the revision petitioners, by Ext. R-5 udampadi dated 4 9 1967, and the extent of land in his possession is below the ceiling area as fixed by the amended S.82 of the Act. The Land Tribunal did not accept this contention, it allowed resumption on the ground that the applicants are not possessed of lands in excess of the ceiling area but the original respondent, i. e., the predecessor of the revision petitioners, possessed land exceeding the ceiling area ob the date of the applications for resumption were filed. The Land Tribunal also ignored Ext R 5 for determining the extent of the land held by and to be resumed from the original respondent. The Land Tribunal also ignored Ext R 5 for determining the extent of the land held by and to be resumed from the original respondent. The revision petitioners filed two appeals and the main point urged against the order for resumption was that the original respondent was holding only less than the ceiling area on the crucial date which, according to the appellants, is 111970. This plea was not accepted by the Appellate Authority also as, according to it, the partition Ext. R 5 effected during the pendency of the proceeding cannot affect the right of the applicants which arose when S.16 to 18 came into force on 1-4-1964. Further, according to the Appellate Authority, the crucial date for determining whether a person holds land in excess of the ceiling area for the purpose of resumption is when the right to resume accrued to the applicants. The correctness of this decision is challenged in these revision petitions. 2. The counsel for the revision petitioners contended that the right under S.16 has to he determined not with reference to the date of the application but with reference to the notified date under S.83 namely 11 1970, if not, on the date of the order finally disposing of the resumption application. In developing this contention he submitted that a person can be said to hold land in excess of the ceiling area only with reference to the notified date for surrender. If on that date the tenant held land in excess of the ceiling area applicable to him that alone can be resumed. In this case, though on the date of the application for resumption the tenant was holding land in excess of the ceiling area as provided for in S.82 then in force, there was no prohibition to voluntarily transfer any portion of the excess area by way of gift. The prohibition in S.84 of the Act did not apply to the settlement, Ext. R 5 dated 4 91967 because the transfers under that settlement came under the excepted categories mentioned in S.84 as it then stood. On 111970 the tenant had no land in excess of the ceiling area after such transfers and therefore no question of surrendering any excess land or resuming any excess land from him arises. I shall deal with this contention hereunder. On 111970 the tenant had no land in excess of the ceiling area after such transfers and therefore no question of surrendering any excess land or resuming any excess land from him arises. I shall deal with this contention hereunder. It is necessary for that purpose to refer to some of the Sections relating to the resumption and the ceiling area. 3. S.16 of the Act entitles a landlord who requires the holding bona fide for cultivation by himself or any member of his family to resume from the tenant who is in possession of land exceeding the ceiling area an extent of land which is in excess of the ceiling area applicable to the cultivating tenant in possession. This is a right which accrued to the landlord when the Act was passed and the above section was brought into force on 141964.On that date the ceiling area permitted to a person like the original respondent was larger under the original S.82 than what was subsequently provided for by the amending Act 35 of 1969. That reduction of the ceiling area by the amending Act is immaterial to find out whether the landlord was entitled to resume the land in excess of the ceiling area under S.16. By S.16 of the Act a vested right is obtained by the landlord to ask for resumption. There is a corresponding duty on the part of the tenant to surrender the extent held by him in excess of the ceiling area subject to the limitation imposed on the landlord by S.16 namely that he cannot ask for resumption of an extent which would exceed the ceiling area available to him. This right of resumption continued to be in force unaltered from 1-4-1964. This right is not a creature of determination by the Tribunal. The determination is only a measure of the right and only quantifies something already there depending as it does solely on pre-existing tacts. The determination is only the machinery for enforcing the obligation. S.22 of the Act provides only the procedure for resumption. This right is not a creature of determination by the Tribunal. The determination is only a measure of the right and only quantifies something already there depending as it does solely on pre-existing tacts. The determination is only the machinery for enforcing the obligation. S.22 of the Act provides only the procedure for resumption. The Land Tribunal is directed to enquire into application and pass appropriate orders wherein the extent and location of the land allowed to be resumed, the rent payable in respect of the portion that would be left after resumption, directing the landlord to make in such time as may be specified payments to extinguish the right of the cultivating tenant. If the landlord on resuming possession fails to use the land for the purpose to which it was resumed, a right is given under S.23 of the Act to the cultivating tenant to ask for restoration. 4. The ceiling area provided for under S.82 was effective from 1-4-1964 and was being given effect to so far as right of a landlord to resume land from the tenant is concerned. It may be that until the notified date he had no obligation to surrender the excess land to the State. But that did not enable him to resist the landlord's application for resumption. That obligation fastened on him the moment the right of the landlord was exercised by him by filing an application for resumption. That statutory obligation to the landlord can be discharged only by surrendering the land to the landlord. The tenant cannot gel out of this obligation by any conduct on bis part which will be a negation of the right of the landlord to resume. Any dealing by him subsequent to the application by the landlord for resumption is of no avail and has to be ignored. Otherwise it will be defeating the provisions of the Act by a conduct of the tenant and such a dealing by the tenant which will defeat the provisions of the Act cannot be countenanced by the court or the Land Tribunal. 5. The counsel for the revision petitioners contended that they can validly transfer the land in excess of the ceiling area by voluntary transfer to those persons in whose favour a transfer is permitted under S.84 of the Act. 5. The counsel for the revision petitioners contended that they can validly transfer the land in excess of the ceiling area by voluntary transfer to those persons in whose favour a transfer is permitted under S.84 of the Act. S.84 invalidates certain voluntary transfers by persons having land in excess of the ceiling area from the date the Kerala Land Reforms Bill was published. If the transfers are in favour of persons who do not come under the excepted category, the Act itself deems such transfers as intended to defeat the provisions of the Act and they will be treated as invalid. Though the transfers in favour of persons who come under the excepted category are not statutorily deemed to defeat the provisions of the Act, if the purpose of the transfer is to defeat the provisions of the Act of the transfer will have that effect, they will be opposed to Section. 23 of the Contract Act read with S.6 of the Transfer of Property Act and are invalid. The principle followed by the Full Bench in Ayidru v. State of Kerala (1976 KLT. 362 (F. B.) ) wherein voluntary transfers of persons having land in excess of the ceiling area after the notified date in favour of persons coming under the exempted category mentioned in S.84 were held not to prevail against the statutory liability which had accrued due on the transferor on the notified date applies with equal force to the transfers effected in favour of such excepted category of persons by those having land in excess of the ceiling area which will defeat the obligation of the tenant to surrender the excess land to the landlord who had applied for resumption. In the Full Bench case the case was one of defeating the obligation to surrender the land in favour of the Government. The case in hand is one where a transfer is effected to defeat the landlord's right of resumption. The principle to be applied is the same. Therefore, reliance on Ext. R-5 to show that there was no land in excess of the ceiling area on the date the Land Tribunal disposed of the petition is of no avail. The right accrued to the landlord on the date of the application. That cannot be defeated by any transfers effected pending the proceedings for resumption before the Land Tribunal. R-5 to show that there was no land in excess of the ceiling area on the date the Land Tribunal disposed of the petition is of no avail. The right accrued to the landlord on the date of the application. That cannot be defeated by any transfers effected pending the proceedings for resumption before the Land Tribunal. Though S.52 of the Transfer of Property Act in terms will not apply, the principle embodied in that section, namely that dealings with immovable property pending the proceedings for establishment of a right thereon shall be ineffective, generally equally applied here also. 6. According to the revision petitioners' counsel, S.82 of the Act became effective only when the notified date was fixed on 111970 and therefore the question whether the tenant was holding land in excess of the ceiling area should be determined with reference to that date only and since before that date the tenant had already parted with portions of the holding validly to others, he was not holding land in excess of the ceiling area for the landlord to resume. I have tried to show that original S 82 which fixed the ceiling area came into force on 14 64. It was effective from that date so far as the right of landlord to resume the land was concerned and determination of the ceiling area at the time when the application was made. No doubt that ceiling area got reduced from 111970 when the amending Act 35 of 1969 came into force. May be that this reduction may enable the landlord to claim a larger extent than that originally claimable by him if he can amend his original application. No such situation has arisen herein. Explanation II to S.16 wherein the notified date under S.83 is mentioned has no application to the facts of this case. It does not postpone the applicability of the entire section to a future date. The reference to notified date there is only to work out the ceiling area as provided for in Explanation to Sub-section 3 of S.82. Even without resort to that sub-section (3) the tenant was having land in excess of the ceiling area under the unamended S.82. Therefore, this contention has no force. 7. No other point was pressed for consideration in these revision petitions. 8. In the result, these revision petitions are dismissed. Even without resort to that sub-section (3) the tenant was having land in excess of the ceiling area under the unamended S.82. Therefore, this contention has no force. 7. No other point was pressed for consideration in these revision petitions. 8. In the result, these revision petitions are dismissed. But, in the circumstances, I make no order as to costs. Dismissed.