STATE OF KERALA AND ORS.

DR. ARVIRAH POULOSE (DEAD)

SEPTEMBER 25, 1992

[R.M. SAHA!, B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.]

Kera/a Land Reforms Ac4 1963 :

Sections 82, 83 and 84-Detennination of Ceiling area--Voluntary C transfer of land after publication of the Bill-Exclusion of-Whether valid.

Interpretation of Statutes :

Heading of a Section-Not Conclusive of interpreting a provision-- Could be taken help of in understanding the provision.

The family of the declarant-Respondent had 20.46 acres of land out of which 8 acres was exempted land. Since ceiling limit was 12 acres, an area of 46 cents was found surplus by the Land Board as per the provisions of Kerala Land Reforms Act, 1963. The Respondent challenged E the order before the High Court and it determined the total al"ea of land held by the declarant as on 1st June, 1970, the material date, to be the total area minus the area which was transferred between 1963 and 1970.

It held that since the declarant family had only 20.46 acres of which neal"ly 14 acres had been transferred, only 7 acres remained, the ceiling area

F being 12 acres, the transaction was valid to that extent and invalid to the extent of 2 acres .. The two figures arrived at, that is 7 acres and 2 acres were added together and as it did not exceed 12 acres, the declarant was held to be possessed of no surplus land.

Aggrieved against the High Court's judgment, the State Government G preferred the present appeal.

Allowing the appeal, this Court,

HELD: 1. To cover up the delay between introduction of the Kerala Land Reforms Bill, 1963 and the imposition of ceiling limit in 1970 and H to avoid any effort on the part of owners to escape the provisions of the 856

STATEOFKERALA v. DR.ARVIRAH 857

Act, Section 84 by a non obstante clause declared, all voluntary transfers A effected after the publication of the said Bill to be invalid. Effect of the statutory prohibition was that all such land was deemed by operation of law, to belong to the declarant on 1st June, 1970 thus liable to be included in his area for determination of ceiling limit. Any other construction would defeat the provisions of the Act and nullify the objective it sought B to achieve. Exceptions to such inclusion have been provided in the Section itself. Nature of the provision is clear from the heading which reads "certain voluntary transfers to be null and voiif'. Although heading of the Section is, normally, not conclusive for interpreting a provision but it can be taken help of for understanding it. The word 'null and void' does not C appear to have been used anywhere but when the section says that such transactions are Invalid then the nature of Invalidity having been indi cated in the beading to be null and void it cannot be taken as valid. If some transactions bas been statutorily declared to be null and void then It does not survive. The invalidity attaches only for purposes of determln Ing ceiling area of a declarant. So far as Land Reforms Act is concerned, D or atleast so far as the operation of Chapter III thereof Is concerned, any voluntary transfer as provided in sub section (1) of Section 84 cannot have any other meaning except that such transaction is invalid and it cannot be excluded from consideration while determining the ceiling area of the declarant. [859 CH; 860 A-Bl E

2. Instead of one determination the High Court proceeded to make determination twice. First It determined the ceiling area excluding the area covered by sale deed. Aller arriving at this it proceeded to determine if the area covered by sale deed was in excess of ceiling limit. Such was neither the ratio of the Full Bench decision relied on by it, nor does the provision permit such exclusion. [860 DE]

Kesven Nambooderi v, State of Kerala, 1970 KlJ 42 and Ramanatha Reddiar v. Ta/uk Land Board, 1985 Kerala Law Times 412, referred to.

3. The question as Co wbr.ther the voluntary transfers were in fact gill deeds which were liable to be excluded while determining ceiling area of the declarant in view of sub-section (1) of Section 84 of the Act was not examined by the High Court as it was inclined to grant relief on assuming

the transfers to he sale deeds. The High Court is therefore directed to H

A decide this question afresh. [860 GH; 861-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2619 of 1982.

From the Judgment and Order dated 11.6.1981 of the Kerala High B Court in C.R.P. No. 16481 of 1979.

Viswanatha Iyer and M.T. George for the Appellants.

K.R. Nambiar, R. Sathish and S. Balakrishnan for the Respondent.

C The Judgment of the Court was delivered by

R.M. SAHAI, J. The short question of law that arises for considera tion in this appeal directed against judgment and order of the Kerala High Court, is if voluntary transfers by a decljll'ant, prohibited under Section 84 D of the Kerala Land Reforms Act (for brief the Act) are to be ignored and land covered by it is to be taken to belong to declarant or have to be taken into account only after determination of the ceiling area on material date for purposes of addition only that area from the voluntary transfers which was found in excess of the ceiling area notified under Section 83 of the Act.

E Relevant facts necessary for determination of the legal issue as found by the High Court were that on !st June, 1970 the material date for determining ceiling area in the State of Kerala the declarants family was possessed of 20.46 acres. Out of this 8 acres was exempted land since ceiling limit was U acres the declarant was found to have 00.46 cents as F surplus. Against this determination the declarant approached the High Court which held that the Land Board in treating the entire transaction as invalid and including it as land held by the declarants family acted in disregard of the ratio of Full Bench decision in Kesven Nambooderi v. State of Kera/a, 1970 KU 42 that such transactions were valid to the extent to G which they were within ceiling limit.

Having explained the legal position the High Court first determined the total area held by the declarant on !st June 1970 to be the total area minus the area which was transferred between 1963 to 1970. Since the declarant had only 20.46 acres of which nearly 14 acres had been trans H ferred he was possessed of 7 acres only. In respect of transfers the court

STATE OF KERALA v. DR. ARVIRAH [SAHA!, J.] 859

held that ceiling area being 12 acres the transaction was valid to that extent A and invalid to the extent of 2 acres. The two figure thus arrived that is 7 acres and 2 acres were added together and as it did not exceed 12 acres the declarant was held to be possessed of no surplus land.

Restriction on ownership and possession of the land in excess of ceiling area in the State of Kerala is dealt by Chapter III of the Land B Reforms Act. What shall be ceiling area in case of different class of persons has been provided by Section 82 of the Act. From what date such restriction shall operate was left to be notified by the Government under Section

83. Thus power was exercised and the cut off date was notified to be !st June, 1970. But the bill for ceiling limit was introduced in 1963. To cover C up this delay between introduction of bill and imposition of ceiling limit and to avoid any effort on part of owners to escape provisions of the Act Section 84 by a non obstante clause declared, all voluntary transfers effected after the publication of Kerala Land Reforms Bi!J 1963 to be invalid.

Effect of the statutory prohibition was that all such land, was deemed by D operation of law, to belong to the declarant on !st June, 1970 thus liable to be included in his area for determination of ceiling limit. Any other construction would defeat the provisions of the Act and nullify the objective it sought to achieve. Exceptions to such inclusion have been provided in the Section itself. Nature of the provision is clear from the heading which E reads "certain voluntary transfers to be null and void'. Although heading of the Section is, normally, not conclusive for interpreting a provision but it can be taken help of for understanding it. The word 'null and void' does not appear to have been used any where but when the section says that such transactions are invalid then the nature of invalidity having been indicated in the heading to be null and void it cannot be taken as valid it F

is not necessary to express any opinion on the correctness of the Full Bench decision of Keshwan where by help of the proviso it was held that the expression invalid should be understood in a restricted sense i.e. the transfers would be invalid to the extent they would operate to defeat the provisions of the Act. As stated earlier, if some transaction has been G statutorily declared to be null and l'oid then it does not survive. We may however, add that the invalidity attaches only for purposes of determining ceiling area of a declarant. We do not express any opinion if it may be valid for other statute but so far Land Reforms Act is concerned, or atleast so H

A far operation of Chapter III is concerned, any voluntary transfer as provided in sub-section (1) of Section 84 cannot have any other meaning except that such transaction is invalid and it cannot be excluded from consideration while determining ceiling area of the declarant.

B Even assuming it could be valid for the part which was not in excess of ceiling limit the method adopted by the High Court was completely erroneous. What was laid down by Full Bench was that any transfer made by a' declarant which would otherwise have been liable to surrender shall be determined to be invalid to the extent of excess ouly. But what the High Court has done is that it has assumed the voluntary transfer to be valid C and has determined the ceiling area of the declarant first by excluding the sale deed, which it could not under the provisions of the Act, and then determined the excess area from out of the voluntary transfers independently. In other words, instead of one determination the High Court proceeded to make determination twice. First it determined the ceiling D area excluding the area covered by sale deed. After arriving at this it proceeded to determine if the area covered by sale deed was in excess of ceiling limit. Such was neither the ratio of the Full Bench nor the provision permits such exclusion. It has not been accepted as correct by a Full Bench of the High Court itself which overruled the decision in Ramanatha Red- E diar v. Taluk Land Board, 1985 Kerala Law Times 412. The Bench held 'to put it in a simple way, the Land Board would not take not of the transfers effected after 15.9 .1%3, while deciding the question of the extent of the land, if any, to be surrendered by a person who held land in excess of the ceiling area which he was not entitled to own, hold or possess after 1.1.1970 F by the operation of Section 83 of the Act.'

One of the contentions raised on beh"lf of the respondent before the High Court was that the voluntary transfers were in fact gift deeds which were liable to be excluded while determining ceiling area of the declarant as sub-section (1) of Section 84 itself provides that a voluntary transfer G which is liable to be excluded should be other than by way of gift. This question was not examined by the High Court as it was inclined to grant relief on assuming the transfers to be sale deeds. Therefore, it appears appropriate to direct the High Court to decide this question afresh.

H In the result this appeal succeeds and is allowed. The order passed

STATEOFKERALA v. DR.ARVIRAH[SAHA!, J.] 861

by the Kerala High Court is set aside. But it is directed to decide if the A voluntary transfers made by declarant during 1963 and 1970 were gift, and whether they were liable to be excluded.

Appellant shall bear their own costs.

G.N.

Appeal allowed.