Research › Browse › Judgment

Kerala High Court · body

1977 DIGILAW 89 (KER)

MALAN v. TALUK LAND BOARD

1977-04-04

K.BASKARAN

body1977
Judgment :- ORDER: 1. Could Viswamohan, the adopted son of Malan, the declarant under S.85A of the Kerala Land Reforms Act, for short the Act, be treated as a member of his statutory 'family' as defined in S.2 (14) of the Act? This question was answered in the negative by the Taluk Land Board, Palghat, in its order dated 2-7-1976 made in Ceiling Case No. L. B. 313/73, whereunder the revision petitioner, the declarant, was directed to surrender an extent of 7.43 acres of land determined to be the extent of land held by him, as the sole surviving member of the family, in excess of the ceiling area as specified under the Act; and that has given rise to this revision under S.103 of the Act at the instance of the declarant. 2. The Taluk Land Board took the view that on a true interpretation of S.2 (14) of the Act, the adopted son has no place in the statutory family of the revision petitioner, inasmuch as the 'family 'in terms of the definition means "husband, wife and their unmarried minor children or such of them at exist;" 3. It is true that the definition in S.2 (14) of the Act is silent about the status of the adopted children; however, in the absence of exclusion of an adopted child from the ambit of S.2 (14) of the Act, it has to be construed that all the rights and obligations flowing from the legal fiction created by S.12 of the Hindu Adoptions and Maintenance Act, (Act 78 of 1956) are attributable to adopted children in relation to family' as defined in S.2 (14) of the Act also. S.12 of the Hindu Adoptions and Maintenance Act reads as follows : "An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child id the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family" One of the important results of adoption is that it transfers the adopted boy or girl from his or her natural family to the adoptive family. The adoptee is deemed to be the child of his or her adoptive father or mother for all purposes. The adoptee is deemed to be the child of his or her adoptive father or mother for all purposes. In this view I am of the opinion that the Taluk Land Board was in error is not admitting Viswamohan, the adoptee, into the family of the revision petitioner for the purpose of determining the ceiling area. By denying the right to have him included in the family of the revision petitioner, The Taluk Land Board has refused to accept the well recognised principle that adoption confers on the adoptee the same rights and privileges in the family of the adoptee as the legitimate natural born child for all the purposes. Such denial of the right would also create a vacuum in regard to the status of the adoptee inasmuch as from the date of adoption all the ties of the child in the family of his or her birth are to be deemed to have been severed and replaced by those created by the adoption in the adoptive family. I have, therefore, no doubt in my mind that the Taluk Land Board should have treated the family of the revision petitioner as one consisting of himself and his adopted son, and they should have been allowed to retain 10 standard acres, so however that it shall not be less than 1 ordinary acres and not more than 15 ordinary acres. 4. 'The counsel then submitted that the Taluk Land Board granted only 25 cents in Sy. No. 181/2A for the Ayyappan temple against a claim for 50 cents; only 40 cents as house site as against a claim for 61 cents in Sy. No. 185/ B-4; only 10 cents as burial ground in Sy. No 133A/5 as against a claim for 40 cents; and only 37 cents as against a claim for 68 cents as house site in Sy. No. 186/B8. In all these masters, the extents required, or allowed, being a question of fact, I do not propose to interfere with the decision of the Taluk Land Board on these questions. 5. No 133A/5 as against a claim for 40 cents; and only 37 cents as against a claim for 68 cents as house site in Sy. No. 186/B8. In all these masters, the extents required, or allowed, being a question of fact, I do not propose to interfere with the decision of the Taluk Land Board on these questions. 5. For the foregoing reasons the revision is allowed in part, the impugned order of the Taluk Land Board shall stand set aside to the extent indicated: below, and the matter is remanded to the Taluk Land Board for determining the extent of land the revision petitioner is entitled to retain, treating his statutory family as one consisting of himself and his adopted son Viswamohan. On this basis the Taluk Land Board shall work out the extent to be retained by the revision petitioner's statutory family and the extent required to be surrendered by him. The extent, if any, required to be surrendered, shall, as far as possible be carved out from the properties indicated by the revision petitioner in his statement, in the true spirit of the provisions contained in S.85 (6) of the Act, allowing, as far as possible, the revision petitioner to retain the lands of his choice unless there are some legal impediments or practical difficulties in doing so. The revision is disposed of as above. There will be no order as to costs.