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1977 DIGILAW 39 (KER)

GOVINDA PILLAI v. TALUK LAND BOARD, PARUR

1977-02-08

GOPALAN NAMBIYAR, KOCHU THOMMEN

body1977
Judgment :- 1. These revision petitions have been referred to the Division Bench in view of the importance of the question raised. They are directed against the common order of the Taluk Land Board, Parur, on the ceiling return filed by the petitioner in C. R. P. No 3214 of 1976. The extent of land ceiling of the petitioner under the provisions of the Land Reforms Act, was calculated after including lands held under a usufructuary mortgage dated 29101965 executed in favour of the Petitioner and lands covered by certain sales effected by the petitioner between 1965 and 1970 which were treated as invalid under S.84 of the Act. The calculation was effected as follows: The total extent of lands of the petitioner was 18.55.889 acres. Out of this, 1.57. 500 acres were treated as exempted from the ceiling area under S.81 of the Act. That left a balance of 16.98.389 acres. The land ceiling in respect of the petitioner was 13.85.002 acres. Therefore he was asked to surrender 3.13.387 acres. Among the lands possessed by the petitioner an extent of 4.36.475 acres was possessed under a usufructuary mortgage dated 29th October, 1965. The mortgagor is the petitioner in CRP No. 4405 of 1966 It was the contention of the revision petitioners in both these cases that the mortgaged lands could not be counted for reckoning the ceiling limit, and excluding the same, the balance was 12.62.014 acres. Of this, 3.28.250 acres was sold by the petitioner between 1965 and 1970. The sales were treated as invalid by the Taluk Land Board under S.84 of the Act and the extent sold was added to the area in possession. It was on this basis that the liability of the petitioner to surrender excess land was calculated. 2. Arguments were advanced by Counsel for the petitioner in C.RP No. 3214 of 1976 whom we will describe as the mortgagee. They were supported by Counsel in CRP. No. 4405 of 1976, the petitioner therein being the mortgagor. 3. The contentions advanced in CRP. 2. Arguments were advanced by Counsel for the petitioner in C.RP No. 3214 of 1976 whom we will describe as the mortgagee. They were supported by Counsel in CRP. No. 4405 of 1976, the petitioner therein being the mortgagor. 3. The contentions advanced in CRP. No. 3214 of 1976 were: (1) that the petitioner was not affected by S 84 of the Act as he did not, on proper computation have lands in excess of the ceiling limit and therefore there was no scope for invoking S.84; and (2) that lands held by him as usufructuary mortgagee had to be left out of account in reckoning the ceiling limit and if so, left out of account, the petitioner cannot be said to either own or possess lands in excess of the ceiling area. We may notice the relevant Sections of the Act which have application in order to appreciate the arguments advanced. S, 2, clause (59) of the Act defines the term 'to hold land' as follows: "to bold land" means to be in possession of land as owner or as tenant or partly as owner and partly as tenant; or, in respect of any land owned by the Government, to be in occupation either as lessee or otherwise." Next we turn to S.84, which, in so far as it is relevant, is as follows: "84 (1) Notwithstanding anything contained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise then (i) by way of partition; or (ii) x x x x (iii) in favour of a person who was a tenant of the holding before the 27th July. 1960, and continued to be so till the date of transfer; by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area or otherwise than by way of gift in favour of his son or daughter or the son or daughter of his pre-deceased son or daughter, by any person owning or holding land in excess of the ceiling area shall be deemed to be transfers calculated to defeat the provisions of this Act and shall be invalid:" The next provision to be noticed is S.85 clause (9) which reads as follows: "85 (9) The Taluk Land Board may, if it is satisfied that the extent of lands surrendered by, or assumed from a person under S.86 is less than the extent of lands which he was liable to surrender under the provisions of this Act, or that the lands surrendered by, or assumed from, a person were not lawfully owned or held by him, set aside its order under sub-section (5) or sub-section (7), as the case may be, in respect of such lands and shall proceed afresh under that sub-section:" S.82 and S.83 of the Act were stressed. The expression "lands owned or held" occur in sub-clauses (2), (3) and (5) of S 82. On the other hand, in S.83 we get the expression "to own or hold or to possess under a mortgage". This Section was stressed to show that even possession under a mortgage was comprehended within its terms and that where the legislature felt it necessary to do so, it had used clear and express language to that effect. Prima facie the argument of Counsel for the petitioner would seem acceptable as the definition of 'owner' in S.2, clause (40), and "to hold land" in S 2 (59), together would take in only three different types of holding viz., (1) holding as owner; (2) holding as tenant; and (3) holding partly as owner and partly as tenant, owner, roughly, being an absolute proprietor. It would therefore be seen that holding as a mortgagee is excluded from the scope of the definition. Being so, wherever the expression "held" is used in the Act, relating it to the definition of "hold" in S.2 clause (59), it can only be understood as referring to possession of an owner or a tenant and not of a mortgagee. It would therefore be seen that holding as a mortgagee is excluded from the scope of the definition. Being so, wherever the expression "held" is used in the Act, relating it to the definition of "hold" in S.2 clause (59), it can only be understood as referring to possession of an owner or a tenant and not of a mortgagee. So ran the argument. 4. We think the argument is unfounded. The definition clause viz. S.2, opens with the usual terms that it was to apply only'unless the context otherwise requires'. As the learned Advocate General rightly pointed out, the presence of such a clause which is usually in the definition section does not make any material difference; and even in cases where the definition is exhaustive, it has been held to cover cases not expressly stated by understanding the definition against the background and the circumstances that gave rise to the legislation of the statutory provision, (vide The Vanguard Fire and General Insurance Co. Ltd. Madras v. M/s. Fraser and Rose and another AIR. 1960 SC. 971, The Commissioner of Expenditure-tax, Gujarat v. Darshan Surendra Parekh AIR 1968 SC. 1125). The same principle has also been stated by the House of Lords in Knights bridge Estates Trust Ltd. v. Byrne & Others (A.E.R.1948 (2), 401, at 405). It has been ruled therein that the words "unless the context otherwise requires" are to be implied in almost every statute. The learned Advocate-General referred to S.83 of the Act, which prohibits the owning, holding or possessing under a mortgage lands in the aggregate, in excess of the ceiling area. This is the basic provision with respect to which the liability to surrender and the extent of lands to be surrendered had to be decided. It is for the purpose of reckoning this ceiling area that transfers are avoided under S 84. After avoiding such transfers and bringing to account the transferred lands, the total extent of land owned or possessed by a person is calculated; and, in the light of the ceiling provisions of the Act, the excess lands are caused to be surrendered and to vest in the Government under S.86 of the Act. After avoiding such transfers and bringing to account the transferred lands, the total extent of land owned or possessed by a person is calculated; and, in the light of the ceiling provisions of the Act, the excess lands are caused to be surrendered and to vest in the Government under S.86 of the Act. It will thus be seen that the provision as to ceiling area, the declaration of unlawfulness of possession or ownership of lands in excess of the ceiling area, the vesting of lands in excess of the same and the liability to surrender lands in excess of the ceiling area, are all part of an integrated scheme under the Land Reforms Act of enforcing the ceiling provisions to determine the extent of lands which a person is lawfully entitled to retain and to enforce the vesting and surrender of the excess lands. It would, in the nature of things, defeat the very object of these provisions and of the Act, if the possession of a mortgagee were to be taken into account for the purpose of some of the Sections and left out of account for the purpose of the others We do not think such would have been the intendment or purpose of the Act; and except for compelling reasons, would be reluctant to conclude that a mortgagee's possession is covered by some of the Sections, but not by S.84 or S 85(9). It appears to us that the context requires that the definition of the term'held' given in S.2 clause (59) cannot regulate or govern S.84 or 85 clause (9) of the Act. For the purpose of these sections we think the expression 'hold' must be given a wider meaning and connotation. The learned Advocate General invited our attention to the meaning of the expression'to hold' in Budhan Singh by his L. Rs. and Another v. Babi Bux and Another (AIR. 1970 SC 1880 Para.6 & 12). The expression ‘hold' in its stymological meaning has a wide import and to achieve the object and purpose of this Act, we think it should be so understood for the purpose of giving effect to the ceiling provisions of the Act. The learned Advocate General drew our attention to Explanation IV to S.85, clause (2). The expression ‘hold' in its stymological meaning has a wide import and to achieve the object and purpose of this Act, we think it should be so understood for the purpose of giving effect to the ceiling provisions of the Act. The learned Advocate General drew our attention to Explanation IV to S.85, clause (2). That explanation speaks of lands in excess of the ceiling area "including lands mortgaged to the Government or to a Co-operative Society etc." There is here an indication that lands mortgaged also enter into the computation, despite the definition in Clause.59 of S.2. Provisions to the same or similar effect are to be found in S.87, 88(4) (i) & (ii), S.91, clause (2), and so on. These indicate that mortgagee's possession enters into the reckoning for various purposes connected with the enforcement of the ceiling provisions of the Act. Besides, even the definition of the term "to hold land" under S.2 clause (59) of the Act cannot be said to be wholly unrelated to the possession of a mortgagee. The definition no doubt refers only to the possession as owner or as tenant or partly as owner and partly as tenant. But when we turn to the definition of the word 'tenant' under S.2(57) it includes a large variety of 'deemed tenants' under S.4A, 5, 6, 6A, 6B and so on. Under many of these Sections, mortgagees of a particular brand and subject to certain requirements, are brought in. S 4A for instance deals with the mortgages with possession. S.6 deals with mortgagees in possession in the Cochin area. In the light of these provisions, the mortgagees are paraded or made to masquerade as tenants and their possession is taken into account for the purpose of the Act We are therefore of the opinion that although expressly the definition of 'to hold land' under S.2 clause (59) is related only to lands held as owner or as tenant, it is not to be understood in this restricted sense for the purpose of working out the ceiling provision of the Act, which we have sketched earlier. In this view, we can find no illegality in the order of the Land Board which calls for interference. We dismiss these revision petitions but in the circumstances without costs. Dismissed.