STATE OF ORISSA AND ORS.

A ~

v. '

K. SRINIVASA RAO (DEAD) THROUGH LRS.

APRIL 18, 2001

[M.B. SHAH AND K.G. BALAKRISHNAN, JJ.] B

Tenancy and Land Laws:

Orissa Land Reforms Act, 1960 (as amended by Presidents Act 17 of """' 1973): Sections 2(21), 37-A, 37-B and 37(b). c

Land-Ceiling on-Married woman-Ceiling in respect of -Held: lvfarried woman is an individual-If she is holding land she would be regarded as a separate unit-Hence, she has to file a separate declaration in respect of her holdings-ff.er landholdings cannot be clubbed with that of her D parents-Even a divorced or separated woman staying with her parents is not a member of her parents' family for the purposes of land ceiling laws.

"Family"-Major married son and daughter-Held: A major son, after marriage, does not automatically cease to be a member of his parents' family-Whereas, after marriage, a daughter ceases to be a member of her E parents' family.

Majority of son-Marriage and separation before cut-o/J date i.e. 26.9.1970-Exclusion of from the definition of "family "-Benefit of-Held: In order to get the benefit of exclusion from "family" it does not matter whether a son marries before or after separation-The only requirement of exclusion F clause is that before the cut-off date such son should be a major, married and separated by partition or othenvise.

Inte1pretation of Statutes:

Rule of construction-Notions of justice and norms of fair 'play- G Principles-Applicability of-Held: A provision of a statute should be interpreted.as far as agreeable to justice and reason.

Words and Phrases:

"Family"-Meaning of-In the context of S.37{b) of the Orissa Land H 61

A Reforms Act, 1960 (as amended by President's Act 17of1973).

"Person under disability"-Meaning of-In the context of S.2(21) of the Orissa Land Reforms Act, 1960 (as amended by President's Act 17 of 1973).

In CA Nos. 3190-92 of 1996, the following questions arose before this Court :-

(a) Can a married woman be termed as a child and thereby a member of her parents' family? or

(b) Whether she is a member of her husband's family?

In CA No. 2873 of 2001 the following question arose before this Court:-

Whether majority of a son, his marriage and separation for the purpose of the definition "family" in Section 37(b) of the Orissa Land Reforms Act, D 1960 (as amended by President's Act 17 of 1973) acre to be taken into consideration inde11endently of each other to have ha11pened before the cut-off date i.e. 26.9.1970 or the separation is required to be as a ma.jor married son?

Dismissing Civil A11peal Nos. 3190-92of1996and allowing Civil A11peal E No. 2873 of 2001, the Court

HELD : 1. As per Section 37-B of the Orissa Land Reforms Act, 1960 (as amended by President's Act 17 of 1973), no person is entitled to hold any land in excess of the ceiling areas. "Person" includes family. So, a 'family' is not entitled to hold land in excess of the ceiling area and family in relation F to an indhidual would mean husband or wife as the case may be, and their children. However, where such family is consisting of more than five members then the ceiling area in respect of such family is to be increased by two standard acres for each member in excess of five but that ceiling area shall not exceed eighteen standard acres. As per the Explanation to Section 37-B, G all lands held individually by the members of a family or jointly by some or

all the members of a family are deemed to be held by the family. Further, in case where land is held by a family, the question - as to whether the holding of the family was in excess of the ceiling area has to be decided in reference to the state of affairs as it existed on and from the commencement of the Orissa Land Reforms (Amendment) Act, 1973i.e. 2nd October, 1973.

.(67-E-GJ

, .. ; .

...

...

...f

.,...

STATE v. K. SRINIVASA RAO 63

Dibyasingh Malana v. State ofOrissa, [1989) Supp. 2 SCC 312, referred A to.

2. A married woman is an individual and as JJer the definition of the word 'family', her family would consist of herself, her husband and their child1-en whether major or minor. This would also be in consonance with the general understanding of the word 'family' as well as status of a married B woman in the society. If she is holding land, she would be regarded as a separate unit who will have to file a separate declaration in respect of her holding and that of her family under the Act. As per normal feature in the society, she wouM be a member of her husband's family and not that of her parents. [68-H; 69-A) c 3.1. Further, considering the definition of the words "person under disability" in Section 2(21) of the Act even if a married woman who has sep:i.rated from her husband by a decree or order of a court or under any custom or usage having the force of law and staying along with her parents, it would be difficult to hold that she is a member of her parents' family. After D marriage, she loses the status of being a member of her parents' family. As against this, a major son after marriage would not automatically cease to be a member of his 11arents' family. Therefore, the phrase 'children, whether major or minor' as mentioned in the definition of the word 'family' is required to be given a reasonable meaning as understood in the po1mlar sense of the word. That a11pears to the reason why the Legislature has not made any E prO\ision either excluding or including a married daughter's landholdings in her parents' family, otherwise the definition of the word 'family' would not be workable. For the married son, the Legislature has fJrovided that his holdings of the land would not be clubbed if he is a major married son who had separated by partition or othenvise before the cut-off date i.e. 26.9.1970. F This also appears to be a normal JJhenomenon with regard to the family in the society. [69-B-E]

3.2. Prior to the substitution of Section 37 and introduction of Sections 37-A and 37-B by Act 29of1976, 'person' included a company or any other corporate body or a 'joint Hindu Mitakshara family'. The legislative intent G for this amendment appears not only to include the family, which is known as joint Hindu Mitakshara family, but also to include other families, which may not be covered by the concept of Hindu Mitakshara family and non-Hindu families. But, it would be difficult to presume that the Lerislature ever intended to cover married daughter, whose family is that of her husband, for the pur11ose of clubbing her landholdings with that of her parents. If the H

A contention of the appellant-State is accepted, holdings of a married daughter would be required to be included in her parents' family as .well as in the holdings of her husband and her children and this would lead to absurdity and unintended injustice to a woman. The ob, ject and reaimn for substituting Section 37 and incorporating Sections 37-A and 37-B is with a ''iew to imposing a ceiling on the aggregate area of land held by all the members of B a family. For achieving that ob, ject, it is not necessary to include a married daughter's holdings in the holdings of her parents by stating that she is a ma, jor child of her flarents. For the lmipose of 'family' she becomes a part an.d parcel of her husband's family and that is the common notion and understanding. [69-F-H] c

4. The inteqlretation given by the High Comi is just and reasonable. It is also an established rule of inteqffetation of a statute that the com1 will inteqlret a statute as far possible, agreeable to .iustice and reason, and avoid imputing to the Legislature, an intention to enact a 1mwision, which flouts notion of justice and norms of fair fllay unless a contrary intention is manifest D from the words plain and unambiguous. [70-B-C]

Madhav Rao Scindia v. Union of India, Am (197'1) SC 530, referred tO.

5. The impugned jud:,,'lllent of the High Court excluding married daughters from the conce1lt of 'family' of the her llarents is based on E inteqlretation of the term 'family' given in the local law which is thereafter

consi!i1ently followed and, therefore, at the fag end of the im1dementations of the Orissa Land Reforms Act, it would not be lffOller to disturb the course of decisions by inter1ffeting that provision differently. A different view would not only introduce an element of unce11ainty and confusion but it would also F have the effect of unsettling orders and/or transactions which might have been entered into on the faith of those decisions. [70-lll)

6. It is nowhere laid down that for getting the benefit of the exclusion clause in the definition of 'family' in Section 37(b) ofth1~ Orissa Land Reforms Act, 1960 (as amended by President's Act 17of1973) a son must be first G major, thereafter he should get married and subseque.ntly should get himself se1larated by partition or otherwise prior to the cut-off date i.e. 26.9.1970. In some cases, son may be major, he may get himself separated prior to the cutoff date and he may get himself married subsequently before the specified date. That would not mean that he is not entitled to get the benefit of the said provision. The only requir.ement of exclusion clause is that before the cut-off H date, such son should be ma, jor, married and se1, arated by pa11ition or

othern'ise. In short, for the 11uq1ose of the land holding under the Act, the A term 'family' does not include such a son, who is ma.ior, married and se{larated by {latiitiOn or othemise 1nior to the cut-off date i.e. 26.9.1970. [71-B, G-H]

Nityananda Guru v. State ofOrissa, AIR (1983) Ori 54 (FB), referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3190 of 1995.

From the Judgment and Order dated 19.4.89 of the Orissa High Court in O.J.C. No. 2197 ofl981.

WITH

Civil Appeal Nos. 3191, 3192of1995 and C.A. No. 2873 of2001.

Mukul Rohtagi, Additional Solicitor General and R.S. Jena for the

Appellants.

B. Kanta Rao, P. Vittal Rao, Ms. Sudha Gupta, A.V. Rangam, A.

Ranganadhan, J.R. Das, D.P. Mohancy, Debasis Mohant)', G.S. Chatterjee (NP) and Raj Kumar Mehta for the Respondent.

The Judgment of the Court was delivered by

SHAH, J.

CIVIL APPEAL Nos. 3190, 3191AND3192 ofl995:

-Can a married woman be termed as child and thereby member of her F parents family?

-Whether she is member of her husband's family?

-As per normal feature in the Society - she would be member of her husband's family and not that of her parents.

However, it is the contention of the State Government that she would

be member of her parents' family for the purpose of land ceiling under the

Orissa Land Reforms Act, 1960 (hereinafter referred to as "the Act") on the H

A basis of definition given to the word 'family' in Section 37(b) of the Act. The Full Bench of the High Court negatived the same by holding 1thus (Para 13):-

" ... .I am inclined to take the view that while defining 'family', the legislature was conscious of the position of married daughters and in view of the rural and agricultural set QP in this part of the country, it was perhaps thought that ipso facto they, on being married away, ceased to be members of the parents' family and become members of the husbands' family and therefore no provision was thought necessary to be made. Giving this interpretation to the statutory definition of the expression 'family' would not work out any violation either of the scheme of the legislation or injustice to a daughter exposing her to double jeopardy, once by aggregating her properties with her father's holdings and then with her husband's holdings if her husband happens to be a land holder as such."

That order is under challenge in these appeals.

For appreciating and deciding the controversy, we would refer to the relevant provisions of the Act which have bearing on the questions involved.

"37-A. Ceiling area-The ceiling area in respect of a person shall be ten standard acres:

Provided that where the person is family consisting of more than five members, the ceiling area in respect of such person shall be ten standard acres increased by two standard acres for each member in excess of five, so however, that the ceiling area shall not exceed eighteen standard acres.

37-B. Persons not entitled to hold land in excess of ceiling area- On and from the commencement of the Orissa Land Reforms (Amendment) Act, 1973 (President's Act 17of1973), no person shall, either as landholder or raiyat or as both, be entitled to hold any land in excess of the ceiling area.

Explanation-For the purposes of this section all lands held

individally by the members of a family or jointly by some or all the members of a fan1ily shall be deemed to be held by the family.

37. Definitions-In this Chapter- -

(a) "person" includes a company, family, association or other body of

.. '

(.-

individuals, whether incorporated or not, and any institution capable A of owning or holding property;

(b) "family" in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor, but does not include a major married B son who as such had separated by partition or otherwise before the 26th day of September, 1970."

Prior to the amendment by Act No.29 of 1976, Section 37 was as under:- c "37. (1) No person shall hold after the commencement of this Act lands as land-holder or raiyat under personal cultivation in excess of - the ceiling area determined in the manner hereinafter provided.

Explanation-For the purposes of this Chapter a person includes a company or any other corporate body or a joint Hindu Mitakshara D

family.

(2) ........ ,,

As per Section 37-B, no person is entitled to hold any land in excess of ceiling area. "Person" includes family. So, a 'family' is not entitkd to hold E

land in excess of ceiling area and family in relation to an individual would mean husband or wife as the case may be, and their children. However, where such family is consisting of more than five members then ceiling area in respect of such fan1ily is to be increased by two standard acres for each member in excess of five but that ceiling area shall not exceed eighteen . F standard acres. As per the explanation to Section 37-B, all lands held individually by the members of a family or jointly by some or all the members of a family are deemed to be held by the fan1ily. Further, in case where land is held by a family, the question-as to whether the holding of the family was in excess of the ceiling area has to be decided in reference to the state of G affairs as it existed on and from the commencement of the O.rissa Land

"""" Reforms (Amendment) Act, 1973 i.e. 2nd October, 1973.

~ The definition of the term "family" in Section 37(b) of the Act came for consideration before this Court in Dibyasingh Ma/ana v. State o/Orissa and others, [1989] Supp. 2 SCC 312. In that case, the Court considered the H

A contention that in view of partition in families of the appellants in the year 1965, the land in ancestral property which fell in the share of the appellants could not be clubbed with those of their father. That contention was negatived on facts by observing that the main provision containing the definition of the term "family" is to be found in the first part of Section 3 7 (b) namely "family" B in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor.

Later part of Section 37(b) namely, "but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970", does not, on the face of it, contain a matter which may in substance be treated as the fresh enactment adding something to the main C provision but is apparently and unequivocally a proviso containing an exception. The Court further held thus: -

" ... Given its proper meaning the words "as such" can only be interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before September 26, 1970 as "major married son".

The Court also negatived the contention that a son who is separated by partition or othenvise from his father was himself an individual and if his land was clubbed with that of his father he will be subjected twice to the provisions relating to declaration of surplus land by holding that "land of E such son alone who does not fall within the exception is to be clubbed with that of his father and with regard to land which has been so clubbed the son obviously can not be treated as another "individual" in his own right for purposes of declaration of surplus land. Only such son who falls within the exception will be liable to be dealt with as an "individual" in his own right, F as his land has not been clubbed with that of his father." The Court further observed, "suffice it to say, so far as this submission is concerned that none of the appellants in these appeals is a married daughter and as such we do not find it necessary to go into this question". As the question-whether married daughter's holding of land could be clubbed with h1!r parents was kept opened, it has given rise to the present controversy.

G In this background, we would consi<ler the meaning of the term 'family' in relation to a married daughter as per the definition. Married woman is an individual and as per the definition of word 'family', her family would consist of her-self, her husband and their children whether major or minor. This would also be in consonance with general understanding of the word 'family' as well H as status of a married woman in the society. If she is holding land, she would

be regarded as a separate unit who will have to file a separate declaration in A respect of her holding and that of her family under the Act.

Secondly, for the purpose of the Act, definition clause Section 2(21) inter alia provides that "person under disability" means "a widow or an unmarried woman or a woman who is divorced or separated from her husband B by a decree or order of a Court or any custom or usage having the force of law". This definition would indicate that a woman is considered to be a separate entity having her own individuality and after marriage there is no question of clubbing her holdings with the family of her parents. Further, considering the aforesaid definition even if a married woman who has separated from her husband by a decree or order of a court or under any custom or c usage having the force of law and staying along with her parents, it would be difficult to hold that she is a member of her parents' family. After marriage, she looses the status of being member of her parents' family. <\s a/.'. .. inst this, a major son after marriage would not automatically cease to bt.: a member of his parents' family. Therefore, the phrase 'children, whether major or minor' D as mentioned in the definition of the word 'family' is required to be given reasonable meaning as understood in popular sense of the word. That appears to be the reason why the Legislature has not made any provision either ., excluding or including married daughter's land holdings in her parents' family, othenvise the definition of the word 'family' would not be workable. For the married son, the Legislature has provided that his holdings of the land would E not be clubbed if he is a major married son who had separnted by partition or otherwise before 26th September, 1970. This also appears to be normal phenomenon with regard to the family in the society. It is to be stated that prior to the substitution of Section 37 and introduction of Sections 37-A and 37-B by Act 29 of 1976, 'person' included a company or any other corporate body or a 'joint Hindu Mitakshara family'. The legislative intent for this F amendment appears not only to include the family which is known as joint Hindu Mitakshara family, but also to include other families which may not be .. covered by the concept of Hindu Mitakshara family and non-Hindu families .

But, it would be difficult to presume that Legislature ever intended to cover married daughter, whose family is that of her husband, for the purpose of G clubbing her land holdings with that of her parents. If the contention of the • learned counsel for the appellant is accepted, holdings of a married daughter would be required to be included in her parents' family as well as in the

\_ holdings of her husband and her children and this would lead to absurdity

~ ., and unintended injustice to a woman. The object and reason for substituting Section 37 and incorporating Sections 37-A and 37-B is with a view to H

A imposing a ceiling on the aggregate area of land held by all the members of a family. For achieving that object, it is not necessary to include married daughter's holdings in the holdings of her parents by stating that she is major child of her parents. For the purpose of 'family' she becomes part and parcel of her husband's family and that is the common notion and understanding.

Hence, in our view, the interpretation given by the High Court is just and B reasonable. It is also established rule of interpretation of a statute that court will interpret a statute as far as possible, agreeable to justice and reason, and avoid imputing to the legislature, an intention to enact a provision which flouts notions of justice and norms of fair play unless a contrary intention is manifest from the words plain and unambiguous [Re. Madhav Rao Scindia C v. Union of India, AIR (1971) SC 530].

In any case, the impugned judgment of the High Court excluding married daughters from the concept of 'family' of her parents is based on interpretation of term 'family' given in the local law which is thereafter consistently followed and, therefore, at the fag end of the implementation of Orissa Land Reforms D Act, ii would not be proper to disturb the course of decisions by interpreting that provision differently. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling orders and/or transactions which miglit have been entered into on the faith of those decisions.

In the result, these appeals are dismissed. There shall be no order as to costs.

C.A. No. 2873 Of 2001 (Arising out of SLP (C) No.6099192)

Leave granted.

In this appeal, the question which was considered by the High Court (paragraph 5 of the judgment) reads thus: -

"For getting a separate ceiling area distinct from his father, petitioner is to prove that he as a major married son had separated by partition or otherwise before 26.9.1970. Question is whether majority of petitioner, his marriage and separation are to be taken into consideration

indpendently of each other to have happened before 26. 9 .1970 or the separation is required to be as a major married son. If all the three are to be taken into consideration independently, petitioner can succeed in getting a separate ceiling by proving his marriage in 1969, as

claimed by him. If, however, majority and marriage are to precede A separation, petitioner would fail, in his claim even if his marriage in '

1969 is accepted."

The Court thereafter co.nsidered the .... decision rendered by this Court in Dibyasingh Malana (supra) and held that this Court arrived at the conclusion B that for getting benefit of exclusion clause he must be 'major married son' who as such had separated by partition or otherwise before 26th September,

1970. In the said case, the Court has approved the decision rendered by the Full Bench of the Orissa High Court in the case of Nityananda Guru v. State of Orissa, AIR (1983) Orissa 54 FB. In Nityananda s case in paragraph 2, it • has been specifically mentioned that Nityananda Guru had three sons and c three daughters; admittedly, none of the sons was major and married on the cut off date; and by a registered deed of partition dated 3 lst December, 1965, the lands were allotted to the shares of the sons and daughters. In that circumstances, the Court held that in view of the definition of 'family' contained in Section 37, the land of such sons would be clubbed with the lands held by the parents in determining the ceiling area. In Dibyasingh's case also, it D has been recorded in paragraph 3 that according to the appellants, partition in the respective families had taken place in the year 1965. Objections were

-( filed asserting inter alia that in view of the partition in the families of the appellants in the year 1965, the lands in the ancestral properties which fell in the share of the appellants could not be clubbed with those of their father.

That contention was not accepted in view of the definition by holding that E

such of the major married sons who as such had separated by partition before the cut off date as contemplated by the definition of the term 'family' were allotted separate ceiling units but so far as the appellants were concerned, their shares were clubbed with those of their father and only one ceiling unit was allotted as contemplated by the relevant provisions of the Act. In that F context, the Court decided the matter and interpreted the definition of the word 'family', but it is nowhere laid down that for getting benefit of the said exclusion clause, such son must be first major, thereafter he should get married and subsequently should get himself separated by partition or othenvise prior to the cut off date. In some cases, son may be major, he may G get himself separated prior to the cut off date and he may get himself married

~ subsequently before the specified date. That would not mean that he is not

entitled to get benefit of the said provision. Only requirement of exclusion

)-- clause is that before the cut off date, such son should be major, married and separated by partition or otherwise. In short, for the purpose of the land holding under the Act, the term 'family' does not include such a son, who H

A is major, married and separated by partition or otherwise prior to cut off date.

In this view of the matter, this appeal is allowed and the impugned judgment and order passed by the High Court is set aside. As the High Court has not decided the matter on merits, it is remitted back to the High Court for decision in accordance with law. There shall be no order as to costs.

V.S.S.

C.A. No. 3190-92/96 dismissed.

C.A. No. 2873/200 I allowed.