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PETITIONER: A.G. VARADARAJULU & ANR.

       Vs.

RESPONDENT: THE STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       23/03/1998

BENCH: K. VENKATASWAMI, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                 THE 23RD DAY OF MARCH, 1998 Present:             Hon’ble Mr. Justice K. Venkataswami             Hon’ble Mr. Justice M. Jagannadha Rao S. Sivasubramaniam, Sr. Adv., and T. Raja, Adv. with him for the appellants. M.A. Krishna Moorthy, Adv. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered: M. JAGANNADHA RAO. J.      Leave granted      This appeal  is preferred  by the two appellants namely A. G.  Varadarajulu  and  Srimati  V.  Jayalakshmi  who  are respectively. husband  and wife, against the order passed by the  Tamilnadu  Land  Reforms  Special  Appellate  Tribunal, Madras in  TRP No.  82 of  1994 dated  25th April, 1995. The case arises  under the  Tamil Nadu  Land Reforms(Fixation of Ceiling on land) Act, 1961 (hereinafter called the Act).      The 1st appellant is the declarant. The 1st appellant’s plea is  that land  of an  extent o  acres 36.74 allotted in favour of his wife, the second appellant Smt. V. Jayalakshmi in a  partition Deed  dated 25.9.1970  executed between  the appellant’s  son.  Balaguruswamy  and  his  wife  should  be excluded from  his (the  1st  appellant)  holding  as  being ’Stridhana land’ of his wife. Within the meaning of the said expression in  Section 3(42)  of  the  Act,  to  the  extent permissible under section 5(4) of the Act.      The following are the facts:      There was  a partition deed between the first appellant and his  son Balaguruswamy  in the year 1959. Under the said document, each  of them  was allotted  certain extent of the joint family  property. on  the basis  that the  wife of the first appellant  was not  allotted any  property towards her right to  maintenance against  the  joint  family  property, another partition  deed dated 24.9.1970 was executed between the minor  son. the  said Balaguruswamy and his mother. i.e. wife of  first appellant,  Under this  document towards  the right to  maintenance, the said Balaguruswamy allotted acres 36.74 in  favour of  his mother. At the time of execution of said partition  deed dated 24.9.1970. the son Balaguruswamy,

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being a  minor, was  represented by  his father,  the  first appellant, as guardian.      The land  ceiling authorities started proceedings under the Act  for computing  the admissible  ceiling  area  which could be  allocated to  the first  appellant under  the Act. While doing  so, the  Authorised officer  by his order dated 13.9.1985 held  that even  though the  partition deed  dated 24.9.1970  was  a  ’valid’  document  having  been  executed between 15.2.1970 and 2.10.1970 as permitted by Section 21A. Still inasmuch as the second appellant was not in possession of this  allotted land  at the  time of commencement of this Act on  15.2.1970 as  required by  section 3(42),  the  same could not be treated as her ’stridhana’. It was consequently held that no part of it could be excluded from the ’holding’ of the  first appellant  even to  the  extent  permitted  by section 5(4)  of   the Act.  This was  the decision  of  the Authorised officer made on 18.9.1985.      A preliminary statement to that effect was published in the Gazette  in Form  7 on  18.9.1985.  No  objections  were received  from   the  appellants.   A  final  statement  was published in  the gazette  on 22.1.1986  under section 12 of the Act and thereafter a final notification was published in the Gazette on 12.2.1986 under section 18(1) of the Act.      Against the  said final  notification, a  revision  was preferred  by   both  the   appellants   before   the   Land Commissioner at  Madras  .  The  revision  was  rejected  on 25.9.1986 holding  again that the above-said extent allotted to  the   second  appellant  in  the  partition  Deed  dated 24.9.1970 could not be treated as ’stridhana’ inasmuch as it was snot  in her  possession at  the time of commencement of the Act i.e. 15.2.1970 as required by section 3(42) and that it was  not sufficient  that she had a pre-existing right of maintenance as on 15.2.1970. It was held that it was rightly included in  the holding  of  the  first  appellant  by  the Authorised officer.      Against the  said order  of the Land commissioner dated 25.9.86 W.P. No. 11055/86 was filed in the Madras High Court which was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal,  after its  Constitution and numbered as TRP No.  82/94. After  the TRP  was dismissed by the Special Tribunal by  its judgment dated 25.4.95, the appellants have preferred this appeal against the said judgment.      We have heard learned Senior counsel for the appellants Sri S.  Sivasubramaniam and  the learned  counsel   for  the respondents Sri M.A. Krishna Moorthy.      Learned senior  counsel for  the  appellants  submitted that the  Tribunals had  accepted that  the  partition  Deed dated 24.9.1970  executed between  the second  appellant and her son  Balaguruswamy was   a  valid document,  - as it was executed between  25.2.1970 and 2.1.1970 during which period such partitions  were permitted  by the  section 21A. It was argued that  if the  said partition deed was to be deemed to be valied  under section  21A, then  it must  be  held  that because of  the non-obstante  clause  in  section  21A.  The conditions laid  down in section 3(42) for treating the land as stridhana  land could not apply and therefore it was snot necessary that  the eland  covered  by  the  partition  deed should be  ’held’ by the female as on 15.2.1970, the date of commencement of the Act.      Alternatively, it  was argued  for the appellants t hat the facts  of the case fit into the definition of ’stridhana land’ in section 3(42) inasmuch as t he allotment of land to the  second  appellant  on  24.9.1970  by  her  son  was  in satisfaction of  her right  to maintenance  under Hindu law, which was  in existence  even  on  15.2.1970,  the  date  of

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commencement of  the Act.  It must,  therefore, be held that she was  holding this  land even  from 15.2.1970 even though such right  to maintenance  crystalised in  to the  land  on 24.9.1970.      On the  other  hand,  learned  counsel  for  the  State contended that  merely  because  the  partition  deed  dated 24.9.1970 had  been  accepted  as  a  valid  document  under section 21A, the land could not be excluded from the holding of the  first appellant.  The non-obstante clause in section 21A  does   not  override  section  3(42).  The  alternative submission of  the appellants  based on  section 3(42) could not also  be accepted  because the mere existence of a right to maintenance  against the  joint  family  property  as  on 145.2.1970. the  date of  commencement of  the Act,  was not sufficient for the purpose of  treating the said property as "held" by  the 1st appellant’s wife on that date and it must be established  that she  was in  possession of  the land as owner and  in her  own name  as on  15.2.1970. Reference was made to section 3(19) of the Act which defines the words ’to hold land’.  it was argued that the allotment of the land on 24.9.1970. Under the partition deed with her son, even if it be in  recognition of  the  right  of  maintenance  was  not sufficient to  satisfy the  conditions laid  down in section 3(42).      We shall  initially refer to the relevant provisions in Sections 3(19),  3(42),5(4)(a), and  21A as they stood after the amendment  by Amending  Act 17/70 (which came into force on 15.2.1970)  and before the Amending Act 37/72 (which came into force on 1.3.1972).      "Selection 3(19)  : to  hold  land’      with  its   grammatical  variations      land cognate  expressions means  to      own as owner or to possess or enjoy      land as  intermediary or  in one or      more of t hose capacities. "      "Section          3(42)           :      Stridhana land’ means any land held      on the  date commencement  of  this      Act by  any;  female  member  of  a      family in her own name."      "Section 5  (4) (a): Subject to the      provisions  of   sub-section   (5),      where the  stridhana land  held  by      any  female   member  of  a  family      together with  the other  land held      by all  the members of that family.      is in  excess of  15 standard acres      the  female  member  concerned  may      hold. in  addition to the extent of      land which  the family  is entitled      to hold    under  sub-section  (1),      Stridhana  land  not  exceeding  10      standard acres:           Provided that where any extent      of stridhana  land held by a female      member is included in the extent of      land which  the family  is entitled      to hold  under sub-section  91) and      in  case   where  the   extent   so      included is --           (i)  10   or  more   than   10      standard acres,  she shall  not  be      entitled to hold any stridhana land      in  addition   to  the   extent  so      included: or

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         (ii)  less  than  10  standard      acres. She  may hold in addition to      t he  extent so  included an extent      of stridhana  land. Which  together      with the  extent so included. Shall      not exceed 10 standard acres.           (b)  where   the   extent   of      stridhana land  held  under  clause      (a)  by  any  female  member  of  a      family consisting of more than five      members........................      21-A:   Certain    partitions   and      transfers   to    be    valid    --      Notwithstanding any thing contained      in  section  22  or  in  any  other      provision of  this Act  and in any;      other law  for the  time  being  in      force, where,  after  the  date  of      commencement of this Act but before      the notified date.      (a)  any  person  has  effected  by      means of  a registered instrument a      partition of  his holding  or  part      thereof: or      (b) ...............................      (c) ...............................      such partition or transfer shall be      valid.      ................................... the section.  In Aswini Kumar Vs. Arabinda Bose [AIR 1952 SC 369] Patanjali  Sastri. J  observed: "The enacting part of a statute must,  where it  is clear,  be taken  to control the non-obstante clause where both cannot be read harmoniously". In Madhav  Rao Scindia  Vs. Union  of India [1971 (1) SCC 85 139] Hidayatullah.  CJ observed that the non-obstante clause is no  doubt a  very potent clause intended to exclude every consideration arising  from other  provisions  of  the  same statute or  other statute but "for that reason alone we must determine the  scope" of  that provision  strictly, when the section containing  the said  clause does  not refer  to any particular provisions  which  it  intends  to  override  but refers to the provisions of the statute generally, it is not permissible to  hold that  it excludes  the  whole  Act  and stands all  alone by itself. "A search has, therefore, to be made with  a view to determining which provision answers the description and which does not".      It  will   be  noticed   that  Section   21  A   refers specifically to  Section 22  of the  Act but  with regard to other provisions  of the  Act, it  is silent.  It says  that certain  partitions   and  transfers   are   to   be   valid notwithstanding any  other provision  of the Act. Therefore, basically, section  21A is  intended to  treat as valid such partitions or transfers as are mentioned in section 21A even if such  partitions or  transfers would  otherwise have been invalid. Now  section 3942) does not deal with invalidity of partition or  transfers but  deals with  stridhana land. The subject matter  of the enacting part of section 21A does not have nay  connection with  subject matter  of Section 3(42). Hence it  is clear  that the  non-obstante clause in section 21A was not intended to override any thing in section 3(42).      Learned counsel  for the appellants has placed reliance on the judgment of this Court in Sushila Devi Ammal & others vs. State  of Madras  [1993 Supp. (1) SCC 462]. That case no doubt dealt  with section 21A and held that if the case fell within section 21A, then section 23 would not be applicable,

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relying  upon  the  words  in  section  21A  "in  any  other provision of  this Act".  We are  here  not  concerned  with section 23  and the  above decision cannot, therefore, be of any help to the appellants. ’Stridhana land’  under Section  3(42) is not the same thing as known to Hindu law:      Appellants want  to rely  upon the right to maintenance inhering in  a female  under Hindu  Law for  the purpose  of construing the  definition of  ’stridhana land’  in  section 3(42) of the Act. Question arises whether while dealing with definitions under  Land Ceiling  laws - which are applicable to persons  governed by  different personal  laws  -  it  is permissible to  construe the  ’definitions’ in  the light of personal laws.      As  shown  below,  unless  the  ‘definitions’  in  land ceiling laws  themselves refer  to personal  laws, it is not permissible  to   resort  to   the   personal   laws   while interpreting ’definitions’  in land  ceiling laws. it may be that for  purposes of  computation of t he ceiling area, the land ceiling  law may  itself refer to t he personal laws or it may   be  necessary to refer to personal laws but that is different.      Under this  very Act,  Venkataramaiah, J.  (as he  then was) in  M. Ramakrishnan  vs. State  of Madras [1979 (4) SCC 209] stated  that the  definition  of  ‘stridhana  land’  in section 3(42) ’ is not used in the Act in the sense in which it is  used in Hindu Law. The Act is applicable to Hindus as well as  others governed by personal laws’. In that case, it was argued  that certain  land which  had  devolved  on  the declarant’s wife  on 20.4.62 upon death of one Sivagami Achi on  the  basis  of  the  letter’s  should  be    treated  as ’stridhana land’  of the  declarant’s  wife.  Under  Section 3(42) as  it then  stood, such land should have been held by the female  as  on  6.4.60,  which  was  the  then  date  of commencement of  the principal Act, 19613. Such a contention was rejected by stating that though under the personal law - the Hindu  law, applicable to the declarant’s wife, the land would have  normally been  treated us ’stridhana’, still the definition under  the  land  ceiling  law  as  to  what  was ’stridhana’ was  different. The definition required the land to be  held by  a female as on 6.4.60 in her own name and if she came  to hold  the land  on a latter date, viz. 20.4.62, then it  could  not  be  treated  as  ’stridhana  land’  for purposes of the Act.      Similarly in  Vengdasalam Pillai vs. Union Territory of Pondichery [1985  (2) SCC  91], this  Court was dealing with the definition  of ’family’  in the  pondichery Land Reforms (fixation of  Ceiling on  Land) Act,  1973, and  a plea  was raised  t   hat  once   the  minor  sons  of  the  declarant partitioned their property with their father, they could not be treated  as part  of their father’s family. Rejecting the said contention,  it was  observed that  it was erroneous to assume that  the definition  of ’family’ in the Act was used in the  sense known  to Hindu  law. It  was  held  that  the ’provisions  of   the  Act  are  applicable  to  holders  of land........ irrespective  of religions,  communities  etc.’ The lands might be held by Hindus, Christians, Muslims or by persons belonging  to other  religious faiths.  All of  them were equally  governed by provisions of the Act. The concept of joint  family was totally foreign to the personal laws of these communities.  It was,  therefore, manifestly  wrong to approach the  interpretation of sections of the Act with the preconceived notion  that in  using the expression ’family’. the Legislature  had intended to connote an undivided family as known  to Hindu  Law and  that after partition with minor

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sons had  taken place  in a  Hindu joint family. there could not be  a ’family’  consisting of the father and his divided minor sons.  The land ceiling law could define a ’family’ as consisting of  the father and minor sons and such minor sons could also be divided minor sons, thought such a concept was not known to customary Hindu law.      We  are,   therefore,  of  the  view  that  it  is  not permissible  for  the  appellants  to  introduce  principles relating to  maintenance  of  a  wife  or  mother  into  the interpretation of the word ’stridhana land’ in section 3(42) of the Act.      Can it  be said that the second appellant was ’holding’ the land on 15.2.1970?      Even assuming  that the  right to maintenance of a wife or mother  as known  to customary Hindu law could be used to construe the  definition  of  ’stridhana  land’  in  section 3(42), the  question would  be whether  the second appellant could be  deemed to  be ’holding  this  extent  of  land  on 15.2.1970, the  date of  commencement of  the Act in view of the allotment  of the  land on 24.9.1970 under the partition deed  in   recognition  of  such  a  pre-existing  right  of maintenance.      We have  already referred  to section  3(19) of the Act which  defines  the  words  ’  to  bold  land’.  Under  that definition, a person is said to hold land if he owns land as owner or possesses or enjoys land as possessory mortgagee or as tenant  or as  intermediary or  in one  or more  of those capacities.  In   the  context  of  section  3(42)  defining ’stridhana land’.  a person  can be said to hold the land if she owns  as owner  or possesses  the same  with elements of title.      The word  ’hold’ or  ’held’ in  the context of Land has come up  for consideration  in  several  cases  before  this Court. In  State of  U.P. vs.  Sarjoo Devi [1977 (4) SCC 2], while dealing  with the  said word  in section  3(14) of the U.P. Zamindari  Abolition and  Land Reforms  Act,  1950,  as follows:      " The  word ’held’, occuring in the      above definition  which is  a  past      participle of the word ’hold’ is of      wide  import.   In  the  Unabridged      Edition   of   The   Random   House      Dictionary of the English Language,      the word ’hold’ has been inter-alia      stated  to   mean  ’to   have   the      ownership or use of ; keep as one’s      own ...........................      In Webster’s  New Twentieth Century      Dictionary (Second  Edition), it is      stated that  in legal  parlance the      word ’held’  means  to  possess  by      ’legal  title’  Relying  upon  this      connotation, this  Court in  Bhudan      Singh and  Another vs. Nabi Bux and      Another   [1969    (2)   SCC   481]      interpreted  the   word  ’held’  in      section   9   of   U.P.   Zamindari      abolition  and  Land  Reforms  Act,      1950 as meaning possession by legal      title." Again in State of Andhra Pradesh vs. Mohd. Ashrafuddin [1982 (2) SCC 1], it was held as follows:      " According  to  Oxford  Dictionary      ’held’ means;  to possess to be the      owner or  holder of tenant of; keep

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    possession of; occupy, Thus, ’held’      connotes both  ownership as well as      possession. and  in the  context of      the definition  it is  not possible      to interpret  the term  ’held’ only      in the sense of possession." The word  ’holds’ was  again interpreted  in  Hari  Ram  and Others vs. babu Gokul Prasad [1991 Supp. (2) SCC 608]. Where it occurs  in Section  185 91)  of the  Madhya Pradesh  Land Revenue Code, 1959, It was observed:      "The word  ’holds’ is not a word of      art. It has not been defined in the      act. It has to be understood in its      ordinary normal  meaning. According      to Oxford  English  Dictionary,  it      means, to  possess, to  be owner or      holder or  tenant of.  The  meaning      indicates that  possession must  be      backed with some right or title."      We are,  therefore, of the view that the word ’held’ in section 3(42)  is used  in the sense that the female must be in possession  of the  land as owner or with some element of title on 15.2.1970, the date of commencement of the Act. Whether mere existence of a right to maintenance as 15.2. 1970 is sufficient?      In our  opinion,  it  is  not  sufficient  that  as  on 15.2.1970, the  second appellant  had a right to maintenance under the  customary Hindu  law  against  this  property  in satisfaction of  which this  extent of  land was allotted to her on  24.9.1970. A  right  to  claim  maintenance  against certain property  of the joint family cannot be equated with ’holding’ the land as on 15.2.1970.      A point almost similar to the one before us arose under the Maharashtra Agricultural (Ceiling on Holdings) Act. 1961 (as amended  in 1975)  in Rambhau  vs. State  of Maharashtra [1995 Supp. (3) SCC 74]. In that case, the tenure holder had two  unmarried   daughters  on  the  relevant  date  and  he contended that,  while calculating  the ceiling  area of the family, the  land ceiling authorities should have taken into account the  liability of the family for the maintenance and marriage expenses  of these daughters and their share in the land should  have been  notionally worked out and so much of the area  as would  have been  found  sufficient  for  their maintenance should  have been excluded while determining the ceiling area  of the  tenure holder. This Court rejected the said contention and in that connection reference was made to section 3(3)  of the  said Act which referred to the initial requirement of  a person  who is  a member  of a  family  to ’hold’ a share in the family property which share could, for purpose of computation be notionally worked out, by applying the personal  law. It  was held  that  the  minor  unmarried daughters in  a Hindu joint family had basically no right to a share and therefore the question of notionally working out a share,  as on  the relevant date, did not arise. Sahai, J. observed (p. 76) as follows:      "An  unmarried   daughter  may   be      entitled   for    maintenance   and      marriage expenses,  but she was not      entitled to  a share  on  partition      either under  the  customary  Hindu      law  or   even  under   the   Hindu      Succession  Act,   1956  or   Hindu      Adoptions  and   Maintenance   Act,      1956. Therefore,  a daughter  being      not  entitled   to   a   share   on

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    partition, the  notionally  working      out  of  her  share  under  Section      3(3)(i)    stands     legislatively      excluded."      We are  in respectful agreement with the above view and the above principle is equally applicable to the case before us. Like  section 3(3)  (i)   of the  maharashtra  Act,  the provision in  Section 5(3)  of the  Madras  act,  1961  also provides for  notional computation  of the  share of persons who basically  hold a  share in  joint family property under Hindu law.  But  such  a  provision  dealing  with  mode  of computation is attracted only to persons who, at the date of commencement  of  the  madras  Act  (15.2.1970),  ’hold’  an undivided share  in the  property of the Hindu joint family. It must,  therefore, be held that section 5(3) read with the Explanation permits  notional computation only in respect of those who  ’hold’ an  undivided interest in the joint family property at  the date  of commencement of the Act. As in the case of  unmarried daughters,  in the  Maharashtra Case, the second appellant  before us had no basic right to a share in the joint  family property  inhering in her on 15.2.1970 and she cannot  therefore be  said to  be  ’holding’  ’stridhana land’ as  on the  date of  commencement  of  the  Act,  i.e. 15.2.1970, within  section 3(42)  of the  Act. Therefore the fact that  she had,  as on 15.2.1970, a right to maintenance against this  property  which  later  crystalised  into  the allotment of this property in her favour on 24.9.1970 is not sufficient. Neither under the customary Hindu law, nor under the Hindu  Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions and Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint  family property  held her husband nor to a mother in the  joint family  property allotted  to  her  son  in  a partition.      Learned senior counsel for the appellants placed strong reliance on  certain observations  in  the  judgment  of  S. Murtaza Fazal  Ali.J. in  V. Tulasamma  & Others  vs.  Sesha Reddy (Dead)  By Lrs.  [1977 (3)  SCC 99].  In that case the Court was  concerned with section 14(1) and (2) of the Hindu Succession Act,  1956. If the land came to be ’possessed’ by the female  at the commencement of the Hindu Succession Act, 1956 in  lieu of  a pre-existing  right of  maintenance. the land would  become her absolute property under section 1491) of the  Act. For  the purpose  of holding that a female in a joint Hindu  Family had  a pre-existing right to maintenance under Hindu  law and that the case fell within section 14(1) and not  under section  14(2), Fazal  Ali. J.  in a separate judgment described  a Hindu  wife as one half of the body of her husband  and as one who could be treated as a ’co-owner’ of the property in a subordinate sense. The context in which those observations  were made  was different. Further, we do not, however.  find any  such observations  in the  majority judgment of  Bhagwati, J.  (as he  then was ) with whom A.C. Gupta, J. agreed. We are of the view, as already stated that a wife  or a   mother  in a  Hindu  joint  family  does  not basically have  a share in the joint family property and she has on a right to maintenance and the mere existence of such a right  against the  joint family  property as on 15.2.1970 could not,  in  law,  be  treated  as  being  equivalent  to ’holding’ a  share in  the joint family property, as on that date. The  fact that  land was  reduced to the possession of the second appellant on 24.9.1970, could not be equated with her possession on 15.2.1970.      For the  aforesaid reasons,  this appeal  fails and  is dismissed but in the circumstances, without costs.

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