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PETITIONER: KATTITE VALAPPIL PATHUMMA & ORS.

       Vs.

RESPONDENT: THE TALUK LAND BOARD & ORS.

DATE OF JUDGMENT:       19/02/1997

BENCH: K.S. PARIPOORNAN, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Paripoornan, J.      This appeal  by special  leave  is  filed  against  the judgment of  vision Bench  of he Kerala High Court, rendered in C.R.P.  No. 1894  of 1988 dated 18.7.1994. The appellants are the  legal representatives of T. Mammad, the ’declarant’ under  the   Kerala  Land  Reforms  Act,  1963  (hereinafter referred to as ’the Act’). The declarant had three wives. He filed a declaration regarding the land held and possessed by him before  the Taluk  Land Board,  Taliparamba (hereinafter referred to  as ’the Board’). In his statement, he had opted his wife  Pathu (first  wife) and here minor children as his "statutory family"  by exercising  the option  specified  in explanation I  to section 82 of the Act. The Board, by order dated 28.8.1986  directed the  declarant to surrender 190.54 acres of  land held  by him  excess of  the ceiling area. In revision, C.R.P.  No. 2131  of 1986 the High Court set aside the order  of the  Board and ordered a remit. Thereafter the Board  by   order  dated  28.6.1988  passed  a  fresh  order determining 97.16  acres as surplus land and, therefore, the declarant was  directed to surrender the remaining area. The order so passed by the Board was assailed in revision before the High  Court of  Kerala in  CRP No.  1894  of  1988.  The declarant and  after his  demise his  legal  representatives contended that  the declarant  having three  wives  and  ten children in  the three wife and her children shall be deemed to be a separate family under explanation I to section 82 of the Act  and, therefore,  the ceiling area in respect o each family has  to be  deducted from  the total  holding of  the declarant. This  plea was  repelled by  the High  Court. The High Court held thus:-      "The properties of the husband, the      wife  named   by  him   and   their      unmarried minor  children  will  be      taken into  account for the purpose      of determining  the ceiling area as      if  they   constitute  one  family.      Regarding    the    other    family      constituted by  the other  wife and      her unmarried  minor children,  the

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    ceiling  provisions   are   to   be      enforced as  if they  constituted a      separate    family     and    their      properties alone will be taken into      account for  that purpose. In other      word, the properties of the husband      will not  be taken into account for      the purpose  of fixing  the ceiling      area of  the family  constituted by      that wife  and her  children.  This      position has been made clear by the      explanation, the intention of which      was to  confine the  family to  the      husband and  one of  the wives  and      their unmarried  minor children for      the   purpose    of   the   ceiling      provisions of the Act.           (Emphasis supplied)      The High Court observed further :-      " When  the husband  and one of the      wives and their children constitute      one family  the ceiling area has to      be determined  on the  basis of the      properties possessed  or  owned  by      them and  not by  the other wife or      wives  as  the  case  may  be.  The      properties possessed  or  owned  by      the other  wife or  wives  are  not      taken into  account for the purpose      of determining  the ceiling area of      the  family   constituted  by   the      husband, the  wife named by him and      their children."           (emphasis supplied)      It was  noticed by the High Court that the order passed by the court in CRP No. 1891 of 1988 to exclude an extent of 15 acres was not given effect to by the Board. So, an extent of 15  acres directed  to be deleted by the order in CRP No. 1891 of 1988 was directed to be excluded from the properties mentioned in  part D  of the  order showing  the lands to be surrendered. The revision filed by the declarant was allowed in  part.   Since  the   declarant  is  no  more  the  legal representatives have  come up  in appeal  against  the  said order passed  in revision  by the High Court dated 18.7.1994 modifying the order of the Board. 2.   We heard counsel. The submission made before High Court was repeated before us. Counsel contended that the declarant having three  wives and ten children by the said three wives each wife  and the  children by  her shall  be deemed  to be separate family under the explanation i to section 82 of the Act, and,  therefore, the  ceiling area  in respect  of each family has  to be  deducted from  the total  holdings of the declarant. It  was argued  that the  other wives  and  their minor children  shall be  deemed to be separate families and so the ceiling area in respect of each such family has to be deducted from  the total  holdings of  the declarant so that the other  two wives  and their  minor children shall not be deprived of  their legitimate right to get a larger area. On the other  hand, counsel  for the respondent-State submitted that on  a fair  and proper reading of section 82 along with the explanations,  it will  be evident that when a declarant husband has  plurality of wives and children, by exercise of the option  under explanation I, the husband can be a member of only  one  such  family  and  not  of  all  the  families simultaneously and  only the  lands owned by the husband and

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the family  so chosen  by him will be taken into account for calculating the  ceiling area  of a  family. It  was argued, that the  lands owned  of possessed  by the  other wives and members of their families will not be taken into account for the purpose  of fixing  the ceiling  area in  respect of the family constituted  by the  husband, one  o  his  wives  and unmarried minor  children in that wife, which constitute the statutory family  for the  purpose of  computing the ceiling area. section 82 was understood and interpreted in the light by the  High court  of Kerala  ever since  the Act came into force and  the High  Court in the impugned judgment has only given effect  to the  said legal position.  A different view is not  warranted specially  at this state when the law laid down by the High Court and followed in the impugned judgment has held the field for more than two decades. 3.   On hearing the rival pleas, we are of the view that the judgment  of   the  High   Court  does   not  call  for  any interference. 4.   Section 2(14) of the Act defines ’family’. It States:-      " "Family"  means husband, wife and      their unmarried  minor children  or      such of them as exist."      Section 82  of the  Act along  with explanation  is  as follow:-      "82. Ceiling  area -(1) The ceiling      area of land shall be,-      (a)  In  the   case  of   an  adult      unmarried  person   or   a   family      consisting  or   a  sole  surviving      member,  five  standard  acres,  so      however that the ceiling area shall      not be  less that six and more than      seven and a half acres in extent:      (b)  In   the    case   of   family      consisting of  two or more, but not      more   than   five   members,   ten      standard acres, so however that the      ceiling area shall not be less than      twelve and  more than fifteen acres      in extent;      (c)  In  the   case  of   a  family      consisting  of   more   than   five      members,   ten    standard    acres      increased by  one standard acre for      each member  in excess  of five, so      however that the ceiling area shall      bot be  less that  twelve and  more      than twenty acres in extent;  and      (d)  In  the   case  of  any  other      person, other  than a joint family,      ten standard  acres so however that      the ceiling  area shall not be less      than twelve  and more  that fifteen      acres in extent.      (2)  For  the   purposes  of   this      Chapter, all  the  lands  owned  or      held individually by the members of      a family  or jointly by some or all      of the members of such family shall      be deemed  to be  owned or  held by      the family.      (3)  In Calculating  the extent  of      land owned  or held by family or an      adult unmarried  person, the shares      of the members of the family or the

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    adult unmarried person, as the case      may be, in the lands owned or held-      (a)  by one or more of such members      jointly with  any person or persons      other than  a member  or members of      such  family   or  by   such  adult      unmarried person  jointly with  any      other person or persons; or      (b) by  a co-operative society or a      joint family,  shall be  taken into      account.      Explanation -  For the  purposes of      this sub-section,  the share  of  a      member of  a  family  or  an  adult      unmarried person  in the land 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  allowed    to      such  member  or  person  had  such      lands been  divided or partitioned,      as the  case may  be, on  the  date      notified under section 83.      (4)  Where, after  the commencement      of this  act,  any  class  of  land      specified in  Schedule II  has been      converted into  any other  class of      land specified  in that Schedule or      into a  plantation, the  extent  of      land liable  to a  surrendered by a      person owning  or holding such land      shall be  determined without taking      into consideration such conversion.      (5)  The land  owned or  held by  a      private   trust    or   a   private      institution shall  be deemed  to be      lands owned  or held  by the person      creating the  trust or establishing      the institution,  or, if  he is not      alive,   by    his   successors-in-      interest.      (6)  In computing the ceiling area,      lands  exempted  under  section  81      shall be excluded.      Explanation I - For the purposes of      this section,  where a  person  has      tow or  more legally  wedded  wives      living, the  husband,  one  of  the      wives named  by him for the purpose      and their  unmarried minor children      shall be  deemed to  be one  family      and the  other wife  or each of the      other wives and her unmarried minor      children shall  be deemed  to be  a      separate family.      Explanation II  - For  the purposes      of   this    section,   and   adult      unmarried person  shall  include  a      divorced husband  or divorced  wife      who has not remarried:      Provided  that   if  such  divorced      husband or  divorced  wife  is  the      guardian  of  any  unmarried  minor      child, he or she together with such      unmarried child  shall be deemed to

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    be family."           (emphasis supplied) 5.   Section 82  of the Act came up for consideration before a Division Bench of the High Court of Kerala in Kesava Menon vs. State of Kerala and another (1976 KLT 408). The facts of the case,  the plea  put forward and the decision are neatly stated in  paragraphs 1 to 3 of the judgment thus:-      "One Kesawa Menon who has two wives      owns extensive  lands. While he has      no issue  through his first wife he      has issues  through the  second put      their number is not more than four.      In the  statement  he  filed  under      section 85(2)  of he  Act regarding      excess  land  he  treated  his  two      wives as  members of  two different      families and  named the  first wife      as a  member  of  his  family.  The      Taluk Land  Board treated his first      wife as  a member of his family and      fixed the ceiling area of his lands      accordingly  as   for  one  family,      namely 14.91  acres,  and  directed      him to surrender the excess portion      of   67.44   acres.   It   is   the      correctness of  the order  that  is      challenged   in    these   revision      petitions, one of which is filed by      Kesava Menon  and his two wives and      the  other   by  the   heirs  of  a      transferee of some of his lands.      xxxx            xxx      xxxx      The Contention  of the  petitioners      in these  tow Revision Petitions is      that if a person who owns lands has      tow wives  and they have not lands,      as regards  his lands  the  ceiling      limit is  that for two families and      that is justified by Explanation I"           (emphasis supplied)      Delivering the judgment on behalf of the Bench Narayana Pillay, J. Stated the Law thus:-      "If  a   person  has   tow   wives,      including  them  and  his  children      through them,  as a  matter of fact      in the ordinary sense there is only      one family.  But Explanation  I has      introduced a fiction by which he is      allowed to treat the two wives with      their children  as constituting tow      separate families.  Along with  the      granting  of   that   privilege   a      restriction is  also placed  by the      Explanation.  The   restriction  is      that he can be a member of only one      of such  families to  be chosen  by      him and  not of  both the  families      simultaneously.  That  the  husband      can be  a member of only one of the      families is an integral part of the      Explanation. While  cub section (1)      has   fixed    the   ceiling   area      subsection (2)  has prescribed  the      lands to  be taken  into account in      calculating the  ceiling area  of a

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    family. Sub  Section (2)  says that      in calculating the lands owned by a      family those owned individually and      jointly  by  the  members  of  that      family should be taken into account      and Explanation  I is a explanation      to the entire section including sub      Section (2).  The  result  is  that      although nationally the second wife      of  Kesava  Menon  and  her  issues      constitute a separate family, as he      is not  a member of that family his      lands cannot  be taken into account      in fixing  the ceiling area of that      family. Otherwise  it would lead to      the absurd consequence of having to      take into  account the  lands of  a      stranger to a family also in fixing      the ceiling  of the  family. If the      husband cannot  be a member of both      the families  at the  same time  it      inevitably follows  that his  lands      can be  taken into  account only in      calculating the ceiling area of the      family to  which he  is  deemed  to      belong. It  was the same conclusion      that was  reached  by  our  learned      brother,  Viswantha   Iyer  J,   in      Kuttan  V.   State  of  Kerala  and      Others, 1976 KLT 49. In the present      case the Taluk Land Board was right      in fixing  the ceiling  area of the      lands held by Kesava Menon as 14.91      acres   and    directing   him   to      surrender  67.44  acres  as  excess      land."            (emphasis supplied) 6.   In a  later decision in Mavilammal vs. Taluk land Board (1984 KLT  962) the  declarant having  tow wives  , opted to treat the  second wife  and children  as member constituting his family.  The question arose as to whether the other wife and children  should be  treated as another family entitling them to  share the properties for purpose of ceiling limits. Bhaskaran, Acting Chief Justice, held thus:-      "It was  argued on  behalf  of  the      petitioner that  unless  the  first      wife  and  her  children  also  are      treated  as   a   separate   family      entitled to  the properties  of the      declarant    in     the     ceiling      proceedings,   it    would    cause      hardship as  far as  the first wife      who is  not named  by the declarant      to be  his wife  for the purpose of      the  ceiling  provisions,  and  the      children born  to the  declarant in      that wife.  He submitted  that  the      purpose of  the  Explanation  is  a      ensure that where the declarant has      more wives than one, then each wife      with her  minor children  should be      treated as persons who are entitled      to claim  share in the property for      the purpose of the ceiling area. In      other words,  according to  him, it

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    is   only   after   setting   apart      sufficient land  permitted for  two      families, the extent depending upon      the number  of persons constituting      each family,  that the balance area      should    be    ordered    to    be      surrendered. The scheme of the Act,      According to me does not permit his      interpretation  inasmuch   as   the      declarant could  be a member of one      of  the   families  only:  and  the      determination of  the ceiling  area      has to  be made  with reference  to      his statutory family which includes      himself, if any, born in that wife.      For that matter even the major sons      and daughters might fall out of the      ambit of the statutory family."           (emphasis supplied)      We are  of the  view that  the aforesaid  decisions lay down the  law correctly.  The High  Court was  justified  in holding that  only the  lands owned  by the  husband and the family chosen  by him (as per explanation I to section 82 of the Act)  will be  taken into  account for  calculating  the ceiling area  of a  family. The  land owned and possessed by the other  wives and  members of  their families will not be taken into  account for  the purpose  of fixing  the ceiling area in  respect of  the statutory family constituted by the husband as  aforesaid. It  is not  permissible to  treat the other wives and their children as separate families and then to deduct  the ceiling area for each of such family from the total holding  of the  declarant husband. We concur with the reasoning and  conclusion of  the High Court. We are further of the  view, that  even if another view is possible, we are not inclined  to take  a different  view at this distance of time. Interpretation  of  the  law  is  not  a  mere  mental exercise. Things which have been adjudged long ago should be allowed to  rest in  peace. a decision rendered long ago can be over-ruled  only if  this Court  comes to  the conclusion that it  is manifestly wrong or unfair and nor merely on the ground that another interpretation is possible and the court may arrive  at different conclusion. We should remember that the law laid dow by the High Court in the above decision has not been  doubted so  far. The  Act  in  question  is  State enactment. These  are weighty  considerations to  hold  that even if  different view  is possible,  if it  will have  the effect  of   upsetting  or   re-opening  past   and   closed transactions or  unsettling titles all  over the State, this Court should  be loathe  to take  a different  view. On this ground as  well, we  are not  inclined to interfere with the judgment under appeal. 7.   The judgment  of the  High Court  of Kerala rendered in C.R.P.  No.   1894  of  1988  is  affirmed.  The  appeal  is dismissed. There shall be no order as to casts.