IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1290 of 2000(G)
1. K.CDHELLAPAN NAIR
... Petitioner
Vs
1. TALUK LAND BOARD
... Respondent
For Petitioner :SRI.N.N.SUGUNAPALAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/11/2007
O R D E R
K.T. SANKARAN, J.
...................................................................................
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
...................................................................................
Dated this the 21st November, 2007
O R D E R
C.R.P.No. 1290 of 2000 is filed by the declarant in LB. No. 372 of 1973 of the
Taluk Land Board, Palakkad challenging the order dated 11.04.2000. The Civil
Revision Petition was admitted and an interim order dated 16.06.2000 was passed
which reads as follows:
“There will be a stay of dis-possession of the petitioner from 4.52 acres
of property covered by gift deed of the year 1968. Regarding the
balance extent, the petitioner can exercise his option and the same will
be considered. “
2. The Taluk Land Board passed an order dated 19.12.2000 exempting an
extent of 4.52 acres under the misapprehension that this court had finally disposed of
C.R.P. 1290 of 2000. The order dated 19.12.2000 is challenged by the State in C.R.P.
1730 of 2003 .
3. The Revision Petitioner/declarant filed a statement under section 85 A of the
Kerala Land Reforms Act , 1963 (hereinafter referred to as ‘Act’). He has shown his
wife and five children as members of the statutory family. In the draft statement
issued to the declarant, the total extent of the land held by the declarant was shown
as 29.71 acres; exemption was granted for an extent of 62 cents; ceiling area was
fixed at 12 acres and the declarant was directed to surrender an extent of 17.09 acres .
After considering the objections filed by the declarant and the claim petitions made by
several persons, the Taluk Land Board passed the final order dated 17.11.1982, by
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
2
which it was held that the declarant is liable to surrender an extent of 8.32 acres .
Challenging the order passed by the Taluk Land Board , the declarant filed C.R.P. No.
20 of 1983 , which was disposed of by this court as per order dated 05.02.1987. This
court held that though many points were raised in the revision, the only point urged at
the time of hearing was about exercise of option. An opportunity to exercise option was
granted in favour of the petitioner .
4. There was litigation pending before the civil court between the declarant and
his brother Madhavan Nair. The legal heirs of Madhavan Nair filed C.R.P.No.17 of
1983 challenging the order dated 17.11.1982. The declarant opted to surrender the
land over which Madhavan Nair had laid claim. It was brought to the notice of the court
in C.R.P. 17 of 1983 that the revision filed by the declarant was disposed of earlier
granting liberty to exercise fresh option. However, in C.R.P. 17 of 1983, as per
judgment dated 11.01.1988, the High Court took the view that the matter requires re-
consideration and the order passed by the Taluk Land Board dated 17.11.1982 was
vacated. It was held that only on a proper determination of the disputes involved in the
appeals pending before the civil court the question of surplus land to be surrendered by
the declarant and the option to be exercised by him in that behalf would arise. The
Taluk Land Board was directed to re-consider the case after the disposal of the appeals
pending before the civil court.
5. Challenging the order dated 17.11.1982, some of the claimants had filed
C.R.P.No. 2982 of 1984. That revision was also disposed of on 11.01.1988 holding
that the extent of 3 acres and 47.25 cents claimed by the claimants cannot be deleted
from the total extent as all the transactions in favour of the claimants are after
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
3
01.01.1970 . Accordingly, C.R.P.No. 2982 of 2004 was dismissed.
6. After the decision of the appeals by the Sub Court, Palakkad, in respect of
the disputes between the declarant and Madhavan Nair, Second Appeal No. 174 of
1990 was filed by the declarant before the High Court. The High Court as per the
judgment dated 09.12.1997 reversed the decree of the lower appellate court and a
decision was rendered in favour of the declarant in respect of 2.46 acres of land.
7. After the disposal of the Second Appeal, the Taluk Land Board considered
the matter afresh. At that time, the declarant put forward a new contention that an
extent of 4.52 acres of land was gifted by him in favour of his minor children in the year
1968. The Taluk Land Board rejected this contention put forward by the declarant that
the extent of land covered by the gift deed should be excluded from the ceiling limit.
The Taluk Land Board held that this is a new claim put forward by the declarant and as
per the order passed by the High Court in Revision earlier, such a plea cannot be
entertained.
8. The Taluk Land Board found, as per the order dated 11-4-2000, that an
extent of 7.32 acres of land was taken possession of by the Tahsildar. An extent of
one acre in Sy.No. 18/5 was acquired by the Government and that extent of land was
taken as surrender of excess land by the Taluk Land Board. As per the order passed
by the Taluk Land Board, the declarant was directed to surrender an extent of 8.32
acres . The order of the Taluk Land Board would indicate that the said extent was
already taken possession of.
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
4
9. The learned counsel for the declarant submitted that the Taluk Land Board
should have considered the contention put forward by the declarant that an extent of
4.52 acres of land was gifted to his minor children and should have deleted this extent
from the ceiling area. The gift deed is dated 17.11.1968. The learned counsel for the
petitioner submitted that one of the donees had attained majority as on 01.01.1970 and
therefore, the gift deed is valid. I am not inclined to accept this contention put
forward by the learned counsel. Section 84(1A) of the Act provides that
notwithstanding anything contained in sub-section (1) of Section 84 , or in any
judgment, decree or order of any court , any voluntary transfer effected by means of a
gift deed executed during the period commencing on the first day of January 1970 and
ending with the 5th day of November, 1974 by a person owning or holding land in
excess of the ceiling area in favour of his son or daughter or son or daughter of his
predeceased son or daughter shall not be deemed to be or ever to have been invalid,
provided that the extent of land comprised in the gift deed does not exceed the ceiling
area and if it so exceeds to the extent of the ceiling area. The proviso to sub-section
(1A) provides that the said sub-section shall not apply to a transfer in favour of a
person who was an unmarried minor on the first day of January, 1970. In the case on
hand, the gift deed was not executed during the period mentioned in sub-section (1A).
It is also not proved that as on 01.01.1970 , the donee had attained majority. The
Taluk Land Board was justified in rejecting the contention put forward by the petitioner.
10. The learned counsel for the declarant submitted that the extent covered by
the gift deed could still be excluded from the purview of the ceiling case in view of the
Kerala Land Reforms (Amendment) Act, 2005 (Act 21 of 2006) (hereinafter referred to
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
5
as Act 21 of 2006 .) By the Amendment Act, Section 7E and sub-section (4) of
Section 84 were inserted. The provisions so inserted read as follows:
“7E. Certain persons who acquired lands to be deemed
tenants: Notwithstanding anything to the contrary contained in S.74 or
S. 84 or in any other provisions of this Act, or in any other law for the
time being in force or in any contract, custom or usage, or in any
judgment, decree or order of any court, tribunal or other authority , a
person who at the commencement of the Kerala Land Reforms
(Amendment )Act, 2005, is in possession of any land, not exceeding
four hectares in extent, acquired by him or his predecessor-in-interest
by way of purchase or otherwise on payment of consideration from
any person holding land in excess of the ceiling area, during the period
between the date of the commencement of the Kerala Land Reforms
Act, 1963 (1 of 1964) , and the date of commencement of the Kerala
Land Reforms (Amendment )Act, 2005, shall be deemed to be a
tenant”.
Amendment of S. 84:
“(4) Notwithstanding anything contained in sub-ss (1), (1A) or (2), or in
any judgment, decree, or order of any court, tribunal or other authority,
no acquisition of land referred to in S.7E shall be deemed to be invalid,
or ever to have been invalid by reason only of the fact that the land so
acquired was found included as, or forming part of, the land liable to
be surrendered by the transferor as excess land under the provisions
of this Act and no suit or other proceedings including proceedings for
eviction relating to the said land shall be instituted, maintained or
continued in any court or tribunal against any person who is a deemed
tenant under S.7E and every such suit or proceedings pending shall
stand abated.
Provided that no ceiling cases wherein excess land has been
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
6
physically taken over and distributed to landless labourers or reserved
for public purposes as provided in this Act shall be re-opened.
Provided further that if the Taluk Land Board is satisfied that
the transfer of land made by a person, in possession of excess land is
calculated to defeat the ceiling provisions, it may take into account the
land so transferred in determining his ceiling area, and may direct him
to surrender such extent of land held or possessed by him.
Provided also that no ceiling cases or proceedings in which any
land has already been surrendered by or assigned from a person as
excess land before the commencement of the Kerala Land Reforms
(Amendment) Act, 2005, shall be re-opened. ”
11. In order to attract Section 7E and to hold that a person is a deemed tenant , the
following conditions must be satisfied:
(a) At the commencement of the Amendment Act, 2005, the person concerned
is in possession of land not exceeding 4 acres in extent;
(b) the said land was acquired by him or by his predecessor-in-interest from a
person holding land in excess of ceiling area;
(c) such acquisition by him was by way of purchase or otherwise;
(d) such acquisition must be on payment of consideration; and
(e) the acquisition must be between the date of commencement of the Kerala
Land Reforms Act 1963 (Act 1 of 1964) and the date of commencement of
Amendment Act, 2005 (Act 21 of 2006).
A gift deed executed by the declarant would not come within the purview of Section 7E.
A specific condition stipulated in Sec. 7E is that the acquisition must be on payment of
consideration. Learned counsel for the declarant submitted that a gift deed is
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
7
supported by consideration and the consideration is love and affection; and therefore,
even a gift deed is covered by Section 7E. I am not inclined to accept this contention.
The expression used is payment of consideration. Evidently, there cannot be any
`payment’ in the matter of love and affection. The purpose sought to be achieved by
the introduction of Section 7E is to protect bonafide transfers for consideration where
a third party has come into possession of lands, acquired by him from a
declarant/assessee . It is not intended to protect donees of declarants/assesses and to
exclude the lands covered by such gift deeds from the purview of the ceiling
provisions.
12. There is yet another reason to reject the contention put forward by the declarant.
On a careful analysis of Sec. 7E, I am of the view that the person who is entitled to the
benefit of Section 7 E must be a stranger and not a member of the statutory family
which holds lands in excess of the ceiling area. The Kerala Land Reforms Act provides
for the ceiling area in respect of adult unmarried person, family consisting of a sole
surviving member, family consisting of two or more but not more than five members , a
family consisting of more than five members and any other person other than a joint
family. Section 82 of the Act provides for Ceiling area . Sub-sections (1 ) and (2 ) of
Section 82 are as under:
“”82. Ceiling area:- (1) The ceiling area of land shall be ,-
(a) in the case of an adult unmarried person or a family consisting of a
sole surviving member, five standard acres, so however that the ceiling
area shall not be less than six and more than seven and a half acres in
extent;
(b) in the case of a 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.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
8
(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 not be less than
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 than 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. ”
Section 2(1) of the Act defines “adult unmarried person” as an unmarried person who
has attained 18 years of age. Section 2(14) of the Act defines “family” as husband,
wife and their unmarried minor children or such of them as exist. “Joint family” is
defined under section 2 (20) of the Act as a Hindu undivided family, a
Marumakkathayam tarwad or tavazhi, an Aliasanthana Kudumba or Kavaru or a
Nambudiri Illam. In the case of a family, the ceiling area is fixed taking into account
the number of members of the family. When such ceiling area is fixed, there cannot
be any further benefit given to such family by excluding the property sold or gifted or
otherwise demised by a member of that family in favour of another member of that
family. If it were to be held so, the provisions of the Kerala Land Reforms Act could
be easily defeated. Such a transaction is not sought to be protected by Section 7E.
What is intended is to protect bonafide purchaser for value. The second proviso to
sub-section (4) of Section 84 introduced by the Amendment Act would make the
position clear. As per the second proviso, if the Taluk Land Board is satisfied that the
transfer of land is intended to defeat the ceiling provisions, such land shall also be
included for determining the ceiling area. I am of the view that a member of the
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
9
statutory family who purchased land from another member of the statutory family, is not
entitled to claim the benefit of Section 7E.
13. From the proceedings it is seen that in respect of 3 acres and 47.25 cents,
strangers had preferred claim petitions. In the revisions filed by them, their
contentions were rejected only on the ground that the acquisition was after 01.01.1970.
Learned counsel for the petitioner submitted that the Taluk Land Board may be
directed to consider the question whether the extent of 3 acres and 47.25 cents could
be excluded from the ceiling case, the land being those held by the strangers under
registered assignment deeds executed by the declarant. Though it is stated in the
order dated 11.04.2000 that an extent of 7. 32 acres of land was taken possession of by
the Tahsildar and an extent of 1 acre has been adjusted from out of the land acquired
by the Government , it is relevant to note that as per the subsequent order dated
19.12.2000 passed by the Taluk Land Board, the Tahsildar was directed to re-convey
to the declarant an extent of 8.32 acres which was already taken possession of by the
Tahsildar. It is true that the third proviso to Section 84 (4) of the Act states that no
ceiling cases or proceedings in which any land has already been surrendered by or
assigned from a person as excess land before the commencement of the Kerala Land
Reforms (Amendment) Act, 2005, shall be re-opened. But in the present case, the
Taluk Land Board has passed an order dated 19.12.2000 directing the Tahsildar to
reconvey to the declarant an extent of 8.32 acres of land. Though the State filed
revision against the order dated 19.12.2000, no stay petition was filed and evidently no
stay was granted. Therefore, I am of the view that the third proviso to Section 84 (4) of
the Act would not stand in the way of a direction being issued to the Taluk Land Board
to consider the question whether the extent of 3 acres 47.25 cents covered by the
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
10
assignment deeds executed by the declarant could be excluded from the ceiling area.
The Taluk Land Board shall issue notices to all the claimants who had filed claim
petitions earlier and who claimed under registered documents executed before the date
of commencement of the Kerala Land Reforms (Amendment )Act 2005 . The Taluk
Land Board shall dispose of the case in respect of 3 acres and 47.25 cents as
expeditiously as possible, after hearing all the persons concerned.
14. The order dated 19-12-2000 passed by the Taluk Land Board, which is
challenged by the State in C.R.P.No. 1730 of 2003, is wholly without jurisdiction. The
Taluk Land Board had earlier disposed of the case as per the order dated 11-4-2000.
That order was challenged by the declarant in C.R.P. No. 1290 of 2000. The High
Court had granted only an order of stay in C.R.P. No. 1290 of 2000 and even that stay
order was confined to an extent of 4. 52 acres. The Taluk Land Board erroneously
thought that the High Court had finally disposed of C.R.P. No. 1290 of 2000. On that
erroneous impression, the Taluk Land Board, as per the order dated 19-12-2000,
exempted the extent of 4.52 acres from the ceiling area. C.R.P.No. 1730 of 2003 filed
by the State is liable to be allowed and the order dated 19-12-2000 passed by the Taluk
Land Board is liable to be set aside.
In the result:
(i) C.R.P.No. 1290 of 2000 is partly allowed and the order dated 11.04.2000
is modified to the extent that the Taluk Land Board shall consider the question whether
the claimants who preferred the claim petitions earlier in respect of 3 acres 47.25 cents
would be entitled to the benefit of Section 7E of Act 21 of 2006 and whether that much
extent of land is liable to be excluded from the ceiling case. The Taluk Land Board shall
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
11
issue notice to the declarant as well as the claimants and afford an opportunity of being
heard to them. The lands shall be inspected and verified with relevant documents by
the authorised officer.
(ii) The finding of the Taluk Land Board that the declarant and his statutory
family are not entitled to claim any exclusion in respect of 4.52 acres of land covered
by the gift deed is confirmed.
(iii) Excluding the extent of 3 acres 47.25 cents, the Taluk Land Board will be
free to take possession of the balance extent.
(iv) C.R.P.No. 1730 of 2003 filed by the State is allowed and the order dated
19-12-2000 is set aside.
K.T. SANKARAN,
JUDGE.
lk
C.R.P. Nos. 1290 OF 2000 & 1730 OF 2003
12
K.T. SANKARAN, J.
………………………………………………..
C.R.P. Nos. 1290 OF 2000
& 1730 OF 2003
…………………………………………………
Dated this the 21st November, 2007
O R D E R