http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SHARANAPPA BASAPPA DINDAWAR

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS

DATE OF JUDGMENT:       28/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATASWAMI K. (J)

CITATION:  JT 1996 (8)   247

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment and order  of the  Karnataka High Court made on November 17, 1989 in  Writ Appeal  No.1830/84. The  admitted position  is that under  Section 66  of the  Karnataka Land  Reforms Act, 1961, as  amended by  1974 Amendment  Act  [for  short,  the ’Act’] The ceiling area has been determined as 54 acres. The appellant had in his possession 15 acres 6 gunthas in Survey No.102 and 28 acres 10 gunthas in Survey No.28/2 in Ankalagi Village in  Bijapur taluk.  By a  ragistered  exchange  deed dated August  18, 1971, the appellant had exchanged 28 acres 10 gunthas  of land with Gurappa Bhimaraya Birdar’s 30 acres 24 gunthas  of land  in Survey  No.175 of  the same village. Earlier, he  had tolal  extent of 43 acres 16 gunthas and by virtue of  the exchange  deed, he  had 45  acres 30 gunthas. Thus, he remained within the ceiling limit of rural land.      The question  that arises  is: whether  the 30 acres 24 gunthas of  land obtained by the appellant in exchange of 28 acres 10  gunthas could  be included in his total holding of 43 acres  16  gunthas?  The  High  Court  relying  upon  the explanation to sub-section (10) of Section 63 construed that since the  appellant had  30 acres  24 gunthas  by  exchange after January  24,  1971,  the  said  land  should  also  be included in  his holding  in addition  to 15 acres 6 gunthas and 28  acres 10  gunthas situated in the aforestated Survey no. Thereby,  the appellant  was  found  in  excess  of  the ceiling limit. Accordingly, the surplus land was directed to be surrendered. Thus, this appeal by special leave.      The Act  had come  into force  on March  15, 1962.  The Amendment Act  came into  force on  March 1, 1974. Section 2 (7) defines ’ceiling area’ to mean an extent of land which a person or  family is  entitled to hold under Section 63. The Act does  not define the word "exchange". Section 118 of the Transfer  of  Property  Act,  1882  defines  exchanger"  and provides  that  where  two  persons  mutually  transfer  the ownership of  one thing  for ownership  of another,  neither

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

thing or  both things  being money  only, the transaction is called an  ’exchange’. It  would thus be clear that transfer of the  property is  complete between  two  persons  in  the manner provided under the transfer of the property by way of exchange duly  registered under  the Registration  Act.  The exchange deed  having been  duly registered  between the two persons by  operation of Section 17 of the Registration Act, the right,  title and  interest of  the land held by the two persons  stood   mutually   transferred   to   each   other. Consequently, 28  acres  6  gunthas  of  land  held  by  the appellant in Survey No.28/2 stood exchanged with 30 acres 24 gunthas of  the land  in Survey  No.175 belonging to Gurappa Bhimaraya Birdar;  thereby, the  appellant got  30 acres  24 gunthas while  Gurappa Bhimaraya  Birdar  had  28  acres  10 gunthas of  the land.  The appellant  by virtue  of exchange came to possess land to the extent of 45 acres 30 gunthas.      The question  then emerges:  whether the  appellant has come to  possess land  in excess of the ceiling limit? It is true that  by virtue  of exchange,  on and after January 24, 1971, if  the land  which was  found to  be in excess of the ceiling  limit   but  stood   transferred,  necessarily,  by operation of  the explanation to sub-section (10) of Section 63 has  to be ignored and the same should be included in the holding of  the owner disregarding such an exchange. Section 63 sub-section (10) reads as under:      "Notwithstanding  anything  in  the      preceding subsection, if any person      has:      (i) after  the 18th  November  1961      and before  the 24th  January, 1971      transferred any  land the extent of      which if  added to  the other  land      remained by  him  could  have  been      deemed to  be surplus  land  before      the date  of  commencement  of  the      Amendment Act; or      (ii) after  the 24th  January, 1971      transferred  any   land,  otherwise      than by partition or by donation to      the Karnataka   Bhoodan Yagna Board      established  under   the  Karnataka      Bhoodan Yagna  Act, 1963 (Karnataka      Act 34  of 1983)  or Sv sale to the      tenant of  such land  in conformity      with any  law for the time being in      force,  then   in  calculating  the      ceiling area  which that  person is      entitled  to   hold,  the  area  so      transferred  shall  be  taken  into      account and  the land exceeding the      ceiling area so calculated shall be      deemed  to  be  in  excess  of  the      ceiling area  notwithstanding  that      the land remaining with him may not      in fact be in excess of the ceiling      area.      If by  reason of  such transfer the      person’s holding  is less  than the      area so  calculated to be in excess      of the  ceiling area,  then all his      lands shall be deemed to be surplus      land and the provisions of Sections      66 and  76 shall  as far as may be,      apply  to   the  surrender  to  and      vesting in  the State Government of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

    such excess land.      Explanation:- For  purposes of this      subsection the land shall be deemed      to have  been transferred if it has      been transferred  by act of parties      whether  by  sale,  gift,  mortgage      with possession, exchange, lease or      any other  kind of disposition made      inter vivos)".      A  reading   of  it   would   clearly   indicate   that notwithstanding anything  in sub-section  (9) of Section 63, on and  after January  24, 1971,  on transfer  of  land  the extent of which, if added to the other land retained by him, could have been deemed to be surplus before the commencement of the  Act, in  calculating the  ceiling  area  which  that person is  entitled to hold the area so transferred shall be taken into  account and  the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area notwithstanding  that the  land remaining  with him may not in  fact be  in excess of the ceiling area. If by reason of such transfer, the person’s holding is less than the area so calculated  to be in excess of the ceiling area, then all his lands  shall be  deemed  to  be  surplus  land  and  the provisions of  Sections 66  and 76  shall as  far as may be, apply  to   The  surrender  to  and  vesting  in  the  State Government  of   such  excess   land.  For  the  purpose  of computation of  the excess  land, the  Explanation envisages that  if  exchange  or  transfer  of  any  kind  took  place disposing of  the land  inter vivos then necessarily such an exchange shall  be excluded  and ignored while computing the excess land.  The legislative  intention and purpose is that the land  held by a holder should stay where it lay prior to January 24, 1971 and the offending transfer would be treated as tainted  with the  fraudulent  intention  to  defeat  the object. The  reason is  that the  person who had the land by offending transfer  does not  acquire legal  and valid title and the  transferor does  not denude him of his right, title and interest.  Take, for instance, a transfer by way of sale or gift  etc. the  transferee or  donee does  not get  title since he  acquires title  for the  first time,  through  the offending transfer. This Court has held in various decisions that it should be included in the holding of both transferor and transferee.  Such situation,  in case of exchange, would be different.  Both had pre-existing right and title. But if it would have the effect of reducing the ceiling area to the extent of exchanged land, the exchange should be ignored and computation should  be made  as if  the  land  did  not  get transferred so  as to  be included  in the  holding of  both parties to  the extent  of excess  so  that  the  object  of avoidance is nailed fathom deep.      In this  case, the  appellant did  not Intend to defeat the provisions  of the  Act nor  he alienated the holding he had prior  to the  exchange. On  the other hand, he enlarged his holding  by 2  acres  12  gunthas  of  land  by  way  of exchange. In either case, he 55 within the ceiling limit. It cannot be  said that  by exchange, he intended to defeat the provisions of  the Act.  On the  other hand,  if  the  other person  reduces   his  holding,   it  should   be   ignored. Consequently, the  land had  by the  appellant  by  exchange cannot be included in his holding in addition to his holding of an  extent of  28 acres  10  gunthas  in  Survey  No.28/2 possession  of  which  he  had  31  ready  parted  with  and obtained, by  way of  exchange, possession  of 30  acres  24 gunthas.  The   High  Court,  therefore,  was  in  error  in directing inclusion of both the land holdings in his holding

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

and treating  him to  be holding  the land  in excess of the ceiling area.      The appeal  is accordingly allowed. It is declared that the appellant  is not  in excess  of the  ceiling limit.  No costs.