IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 CRP.No. 382 of 2005() --------------------- AGAINST THE ORDER DATED 18.11.2004 IN TLB.1210/1973/Kas of TALUK LAND BOARD, KASARGOD REVN. PETITIONER: LEGAL REPRESENTATIVES OF NO.1 OF DECLARANT: LAXMI NARAYANA MOODITHAYA, S/O. VASUDEVA MOODITHAYA, RESIDING AT PANDIYADKA IN KAYYAR VILLAGE AND POST, KASARAGOD TALUK. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: LEGAL REPRESENTATIVES NOS.2TO 6 OF DECLARANT&STATE 1. SHANKARANARAYANA MOODITHAYA, S/O. VASUDEVA MOODITHAYA, RESIDING AT 26/1, OFFICERS QUARTERS, MYSORE, PAPER MILL, BHADRAVATHI POST, KARNATAKA STATE. 2. SOORYANARAYANA MOODITHAYA, S/O. VASUDEVA MOODITHAYA, RESIDING AT SRI PADMA HOUSE, NEAR S.K. D.B. HOSTEL, KODIALBAIL, MANGALORE-3. 3. SMT.VIJAYALAXI, W/O. ASHOKA S.KADAMBAR, RESIDING AT PADDIYADKA, KAYYAR VILLAGE AND POST, KASARAGOD TALUK. 4. SMT.VIDYA LAXMI, W/O. DURGADAS, (C/O.DURGADAS, DEVELOPMENT OFFICER, NEW INDIA INSURANCE COMPANY, BATTUGUDDE, BIJAI, MANGALORE, D.K.) 5. SMT.MAHALAXMI S.HEBBAR, W/O. SURESHA HEBBAR(C/O. SURESHA HEBBAR, MANAGER, KARNATAKA BANK, DEVARAJ, MYSORE ROAD BRANCH, P.O. MYSORE, KARNATAKA STATE). 6. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. P.A. SALIM-R6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1073 OF 2005 IN C.R.P. NO.382 OF 2005. DISMISSED 20.6.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 382 OF 2005 -------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The revision petitioner is the son of the declarant in Ceiling Case No.TLB. 1210/73/Kas before the Taluk Land Board, Kasaragod. The revision is directed against the proceedings of the Taluk Land Board dated 18.11.2004. The ceiling case relates to the liability of the father of the revision petitioner late Vasudeva Moodithaya to surrender excess land under the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act"). Originally, the Taluk Land Board by proceedings dated 25.9.1975 ordered that the declarant had no land to surrender under the Act. Subsequently, the matter was reopened under Section 85(9A) of the Act to verify the correctness of the claim that 14.36 acres of land in various survey numbers are in the possession of tenants. After enquiry, the Taluk Land Board by its proceedings dated 27.1.1994 provisionally concluded that the declarant is liable to surrender 2.33 acres of land. After examining the objections filed by the declarant and after obtaining the C.R.P. NO.382/2005 2 report of the authorised officer dated 23.12.1994, the Taluk Land Board again considered the matter. The authorised officer had reported that the revision petitioner was a major even prior to 1.1.1970 and hence eligible to retain an extent of 5 standard acres equivalent to 7.50 ordinary acres. It was also reported that the declarant had partitioned his property among his children in 1973 as per Document No.69/73 of S.R.O., Manjeshwar. The authorised officer recommended that the declarant held 14.80 ordinary acres and after exempting an extent of 0.47 acres, the total extent held by the declarant was found to be 14.33 acres. The authorised officer thus reported that the declarant is liable to surrender 2.33 acres. On the basis of the above report, the Taluk Land Board issued draft statement to the declarant directing him to surrender 2.33 acres. The same was objected to by the declarant contending that his son, the revision petitioner, was a major as on 1.1.1970 and that his share in the family property namely 1/4th share, is liable to be excluded from the account of the declarant. On enquiry by the authorised officer supported by the school records, the authorised officer reported that the revision petitioner was eligible to retain 5 standard acres. The Taluk Land Board after quoting Section 82 of the Act held that the revision petitioner cannot claim exemption of 1/4 th share of the property and that being a member of the family, he is entitled to exemption only under Section 82(c) of the Act. C.R.P. NO.382/2005 3 2. The Taluk Land Board went wrong in applying Section 82(c) of the Act. Explanation to Section 82 of the Act quoted by the Taluk Land Board shows that the share of a member of a family or an adult unmarried person in the lands owned or held jointly or by a co-operative society or a joint family shall be deemed to be the extent of land which would be allotted to such member or person had such lands been divided or partitioned, as the case may be, on the date notified under Section 83 of the Act. The section is very clear on the point. If there is a major member of the joint family entitled to a share in the family property, his share shall be reckoned as on 1.1.1970. The Taluk Land Board should have ascertained the exact share of the revision petitioner out of the property held by the members of the joint family and exclude such share from the account of the declarant. Instead of doing so, the Taluk Land Board relied on Section 82(c) of the Act which is not applicable to a member of the family who was a major as on 1.1.1970. 3. In view of the reasons stated above, the order under challenge is set aside. The Taluk Land Board is directed to reconsider the matter afresh in accordance with law on the basis of the observations and findings stated above. C.R.P. NO.382/2005 4 The Civil Revision Petition is disposed of as above. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.382/2005 5 HAURN-UL-RASHID, J. C.R.P. NO. 382/2005 O R D E R 20th June, 2008