MOHAMMED Vs. TALUK LAND BOARD

JUDGEMENT

(1.) THE declarant in Ceiling Case No. CR. 516/77/sm/c7 on the file of the Taluk Land Board, Ernad (the 1st respondent) is the revision petitioner. Aggrieved by the order dated 28-5-1981 in that case, passed by the first respondent-Board, the petitioner has come to this Court challenging the correctness thereof.

(2.) AT the outset, the counsel for the petitioner submitted that in deciding the question as to who all really constituted the petitioner's statutory family, the first respondent-Board had gone wrong. The petitioner's counsel Sri P. K. Moosa submitted that as on 1-1-1970 the petitioner was having his wife and three minor children born to her by him. This, according to him, was apart from the two minor children born to his first wife by him; and that that wife died in the year 1960. The Taluk Land Board found that the petitioner had a first wife who, at the time of her death in 1960, was survived by her two sons; it, however, decided to treat those two children as members of a separate family, without being allowed to be tacked on to the petitioner's statutory family which consisted of himself, his second wife and the three children born in that wedlock in accordance with the definition of the expression'family' in S. 2 (14) of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969 (the Act ). Shri Moosa contended that on a true construction of Explanation I of subsection (4) of S. 82 of the Act, it could be found that the children by the deceased wife also had to be tacked on to the statutory family of the declarant, as otherwise the children by the deceased wife would be nowhere, neither with the statutory family of the declarant nor with any other family, as, according to him, to attract Explanation I to s. 82 (4) of the Act, the mother of the two minor children should be alive. Explanation T to S. 82 (4) of the Act reads as follows: "for the purposes of this section, where a person has two or more legally wedded wives living, the husband, one of the wives named by him for the purpose of 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. " Sri Moosa admittedly has no case that these two children of the declarant by his first wife (now deceased) would fall within the definition of 'family' as defined in S. 2 (14) of the Act. His only case is that since the Explanation extracted above requires a living wife and her children to constitute the family contemplated in the Explanation, the declarant's wife having died, her children by themselves could not constitute the separate family for the purpose of S. 82 (4) of the Act, and the resulting position would be that the two children would neither be in the family as defined in S. 2 (14)of the Act nor as contemplated in Explanation I to S. 82 of the Act. The only other alternative, according to the counsel, is to tack them to the statutory family of the petitioner. I think, it must be too much to read such a proviso into S. 2 (14) of the Act. Under these circumstances, all that could be done is to treat them as a separate family understanding the Explanation as one which requires the legally wedded wives living and their children, or in the absence of such legally wedded wives living, their children to form a separate family, apart from the statutory family conceived under S. 2 (14) of the Act. Therefore, i reject the contention of the petitioner that the Taluk Land Board had fallen in error in not including the petitioner's children by the deceased (first)wife in the statutory family of the petitioner.

(3.) THE next contention relates to three acres in items 5, 6 and 7 comprised in two survey numbers, R. S. Nos. 161/3,4 and 169/1a. This also, according to the counsel for the petitioner, was obtained only in 1977 on the death of mother to whom the property belonged. Here also, the burden of proof is on the Taluk Land Board to arrive at a finding based on legal evidence whether the property actually belonged to the petitioner as on 1-1-1970 or whether it wholly or partially was derived by him on the death of petitioner's mother in 1977. This also is a matter which has to be investigated into.