FR AVIRAH Vs. STATE OF KERALA

JUDGEMENT

(1.) The declarant before the Taluk Land Board, Alwaye is the revision petitioner. He was directed to surrender excess land of 62 cents originally. An interested person filed an application under S.85(8) of the Kerala Act 1 of 1964 as amended by Act 35 of 1969 (for short the 'Act') claiming tenancy over 1.17 acres and the application was allowed. Consequently the matter was reopened and a fresh determination was made resulting in the decision directing the declarant to surrender excess land of 46 cents. This decision is now questioned in this revision.

(2.) The learned counsel for the revision petitioner urged several contentions, but I propose to consider only one of those contentions, since that will dispose of the present revision petition. The Land Board proceeded on the basis that the declarant's family had 20.46 060 acres of land as on 1-1-1970. Exemption was granted to the extent of 8 acres. 12 acres is the permissible ceiling area. Hence the excess land is only 46.060 cents. But the extent of 20.46.060 acres taken as land held by the declarant's family as on 1-1-1970 included about 14 acres of land transferred under five different transfer deeds executed by the declarant in favour of his major children in 1967. The transfer deeds are styled as sale deeds. I need not consider another argument of the learned counsel for the revision petitioner that those documents of transfer are really and in effect gift deeds. The Taluk Land Board treated them as sale deeds. These sale deeds are directly hit by S.84 of the Act. Consequently, what the Land Board proceeded to do was to treat the entire transactions as invalid and to take the entire extent of 13 and odd acres as land held by the declarant's family as on 1-1-1970. That was how the total extent was accepted as 20.46.060 acres. This procedure cannot stand in view of the dictum laid down by a Full Bench of this Court in Kesavan Namboodiri v. State of Kerala and others ( 1976 KLT 427 ). The disability attached to a person in effecting non excepted transfer is in owning or holding land more than the ceiling limit. In Kesavan Namboodiri's case this Court held that such document of transfer has to be treated as valid to the extent to which it is within the ceiling limit and that invalidity is attached to a transaction only with regard to excess land owned or held. If that be so, the proper procedure is to compute the extent of land actually owned, held or possessed by the declarant as on 1-1-1970. Thereafter the Land Board should find out whether the declarant has executed any documents which are hit by S.84 of the Act. If the transactions are so hit by S.84, then, the Land Board has to compute the total area of land involved in such transactions. If the total area of land involved is within the permissible ceiling limit as far as the declarant is concerned, then, the transactions will stand and cannot be ignored for the purpose of computing the ceiling area. If, on the other hand, such extent of land exceeds the permissible ceiling limit applicable to the declarant, then the Land Board can add to the account of the declarant as on 1-1-1970 not the entire extent of land involved in such transactions, but only that extent which is in excess of the permissible ceiling area. This extent will have to be added to whatever lands he owns, holds or possesses, as the case may be, as on 1-1-1970 and the total extent thus arrived at alone can be put in his account. Out of that, of course, if any lands are to be exempted, they will have to be taken away and if the remaining extent is less than the ceiling limit permissible under the provisions of the Act as on 1-1-1970, it cannot be said that the declarant or his family has any land in excess of the ceiling area. This ought to be the procedure the Land Board should follow in cases like this.

(3.) A look at the proved facts in the case would show that applying the above mentioned principles, the order of the Land Board cannot stand. As on 1-1-1970 the declarant's family had only about 7 acres of land. The transactions took place between 1963 to 1-1-1970 and the total extent of land covered by the transactions is about 14 acres. Assuming that all these transactions are hit by S.84 of the Act, the transactions have to be treated as valid to the extent of 12 acres, which is the permissible ceiling limit. Then, the balance area of 2 acres alone can be added to his account as on 1-1-1970. So adding his account as on 1-1-1970 will have only 7 acres plus 2 acres, i. e. about 9 acres. This is certainly well within the ceiling area so far as the declarant is concerned, the ceiling area being 12 acres. The conclusion of the Land Board that the revision petitioner is liable to surrender any extent of land is erroneous and is based on a wrong interpretation of S.84 read with S.85 of the Act.