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CASE NO.: Appeal (civil) 3190  of  1995 Appeal (civil)  3191     of  1995 Appeal (civil)  3192     of  1995 Appeal (civil)  2873     of  2001

PETITIONER: STATE OF ORISSA & ORS.

       Vs.

RESPONDENT: K. SRINIVASA RAO (DEAD) THROUGH LRS.

DATE OF JUDGMENT:       18/04/2001

BENCH: M.B. Shah & K.G. Balakrishnan

JUDGMENT:

Shah, J.

CIVIL APPEAL Nos. 3190, 3191 AND 3192 of 1995 : L...I...T.......T.......T.......T.......T.......T.......T..J

   -Can  a  married  woman be termed as child  and  thereby member  of her parents family?  Or -Whether she is member of her husbands family?

   -As  per  normal  feature in the  Society-she  would  be member of her husbands 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 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 thus (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  up 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 fathers  holdings  and then with her husbands holdings  if her husband happens to be a land holder as such.

That order is under challenge in these appeals.

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   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 (Presidents Act 17 of 1973), 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  individually by the members of a family or jointly  by some  or  all the members of a family 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 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 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:-

   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 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 entitled to hold 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 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, all lands  held  individually  by  the members of  a  family  or jointly by some or all the members of a family are deemed to

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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, 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 Malana v.  State of Orissa and others [1989 Supp. (2)  SCC  312].   In  that case, the  Court  considered  the 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 37(b) namely 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.  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 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 otherwise 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  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, 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 daughters holding of land could be clubbed with her parents was   kept  opened,  it  has   given  rise  to  the  present controversy.

   In this background, we would consider 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 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

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separate  declaration in 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 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 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.  As against this, a major son after  marriage would not automatically cease to be a member of  his  parents family.  Therefore, the phrase  children, whether  major  or minor 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  daughters  land holdings in her parents family, otherwise 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 not be clubbed if he is a major married son  who had   separated  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  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 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 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  daughters 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 husbands  family  and  that  is   the  common  notion   and understanding.  Hence, in our view, the interpretation given by  the  High  Court  is just and 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

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is  manifest  from  the  words plain  and  unambiguous  [Re. Madhav Rao Scindia 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 Act, it 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 might 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.   OF 2001 (Arising out of SLP (C) No.6099/92)

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 independently   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  separation, petitioner would fail in his  claim even if his marriage in 1969 is accepted.

   The Court thereafter considered the decision rendered by this  Court in Dibyasingh Malana (supra) and held that  this Court  arrived at the conclusion 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 Nityanandas case in paragraph 2,  it has been specifically mentioned that Nityananda  Guru had three sons and three daughters;  admittedly, none of the sons  was  major and married on the cut off date;  and by  a registered  deed of partition dated 31st 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  Dibyasinghs case  also,  it  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

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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 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 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  otherwise prior to the cut off date.  In some cases, son may  be major, he may 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 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.