ANNAMMA THOMAS Vs. SARAMMA MATHAI

JUDGEMENT

(1.) THESE two revision petitions arise out of the two final orders allowing resumption of portions of a holding under S. 16 of Act 1 of 1964 as amended subsequently. THESE revision petitions are connected. The original respondent, the predecessor-in-interest of the revision petitioners was holding 28 acres 14 cents of nilom under one Chandi on lease. In a settlement deed executed by this Chandi in favour of his daughters-in-law, unmarried son and unmarried daughter, portions of these properties were allotted to these persons. One daughter-in-law, Sosamma Mathai, then applied for resumption of 3 acres 65 cents out of the above mentioned 28 acres 14 cents. Another daughter-in-law filed a similar application for resumption of 3 acres 51 cents out of the abovementioned 28 acres 14 cents. THESE applications were filed in 1965 within the period of one year mentioned in S. 18 of the Land reforms Act. The proceedings on the basis of these applications had a chequered career. On account of periodical re-constitution of the tribunals the proceedings got protracted and finally they were transferred to the Land tribunal, Ernakulam. The application of Sosamma Mathai was re-numbered as O. A. No. 495 of 1971 and that of the other daughter-in-law re-numbered as O. A. No 465 of 1971. The predecessor of the appellants had taken op various contentions; but for the purpose of these revision petitions, it is necessary to mention only one of them, i. e. , he pleaded that he was not in possession of land in excess of the ceiling area as he had, pending these proceedings, effected a partition of the leasehold among his children, who are the revision petitioners, by Ext. R-5 udampadi dated 4 9 1967, and the extent of land in his possession is below the ceiling area as fixed by the amended S. 82 of the Act. The Land Tribunal did not accept this contention, it allowed resumption on the ground that the applicants are not possessed of lands in excess of the ceiling area but the original respondent, i. e. , the predecessor of the revision petitioners, possessed land exceeding the ceiling area ob the date of the applications for resumption were filed. The Land Tribunal also ignored Ext R 5 for determining the extent of the land held by and to be resumed from the original respondent. The revision petitioners filed two appeals and the main point urged against the order for resumption was that the original respondent was holding only less than the ceiling area on the crucial date which, according to the appellants, is 111970. This plea was not accepted by the appellate Authority also as, according to it, the partition Ext. R 5 effected during the pendency of the proceeding cannot affect the right of the applicants which arose when S. 16 to 18 came into force on 1-4-1964. Further, according to the Appellate Authority, the crucial date for determining whether a person holds land in excess of the ceiling area for the purpose of resumption is when the right to resume accrued to the applicants. The correctness of this decision is challenged in these revision petitions.

(2.) THE counsel for the revision petitioners contended that the right under S. 16 has to he determined not with reference to the date of the application but with reference to the notified date under S. 83 namely 11 1970, if not, on the date of the order finally disposing of the resumption application. In developing this contention he submitted that a person can be said to hold land in excess of the ceiling area only with reference to the notified date for surrender. If on that date the tenant held land in excess of the ceiling area applicable to him that alone can be resumed. In this case, though on the date of the application for resumption the tenant was holding land in excess of the ceiling area as provided for in S. 82 then in force, there was no prohibition to voluntarily transfer any portion of the excess area by way of gift. THE prohibition in S. 84 of the Act did not apply to the settlement, Ext. R 5 dated 4 91967 because the transfers under that settlement came under the excepted categories mentioned in S. 84 as it then stood. On 111970 the tenant had no land in excess of the ceiling area after such transfers and therefore no question of surrendering any excess land or resuming any excess land from him arises. I shall deal with this contention hereunder. It is necessary for that purpose to refer to some of the Sections relating to the resumption and the ceiling area.

(3.) THE counsel for the revision petitioners contended that they can validly transfer the land in excess of the ceiling area by voluntary transfer to those persons in whose favour a transfer is permitted under S. 84 of the Act. S. 84 invalidates certain voluntary transfers by persons having land in excess of the ceiling area from the date the Kerala Land Reforms Bill was published. If the transfers are in favour of persons who do not come under the excepted category, the Act itself deems such transfers as intended to defeat the provisions of the Act and they will be treated as invalid. Though the transfers in favour of persons who come under the excepted category are not statutorily deemed to defeat the provisions of the Act, if the purpose of the transfer is to defeat the provisions of the Act of the transfer will have that effect, they will be opposed to Section. 23 of the Contract Act read with S. 6 of the Transfer of Property Act and are invalid. THE principle followed by the full Bench in Ayidru v. State of Kerala (1976 KLT. 362 (F. B.) ) wherein voluntary transfers of persons having land in excess of the ceiling area after the notified date in favour of persons coming under the exempted category mentioned in S. 84 were held not to prevail against the statutory liability which had accrued due on the transferor on the notified date applies with equal force to the transfers effected in favour of such excepted category of persons by those having land in excess of the ceiling area which will defeat the obligation of the tenant to surrender the excess land to the landlord who had applied for resumption. In the Full Bench case the case was one of defeating the obligation to surrender the land in favour of the Government. THE case in hand is one where a transfer is effected to defeat the landlord's right of resumption. THE principle to be applied is the same. THErefore, reliance on ext. R-5 to show that there was no land in excess of the ceiling area on the date the Land Tribunal disposed of the petition is of no avail. THE right accrued to the landlord on the date of the application. That cannot be defeated by any transfers effected pending the proceedings for resumption before the land Tribunal. Though S. 52 of the Transfer of Property Act in terms will not apply, the principle embodied in that section, namely that dealings with immovable property pending the proceedings for establishment of a right thereon shall be ineffective, generally equally applied here also.