STATE OF ORISSA Vs. SHYAM SUNDAR PATNAIK

JUDGEMENT

(1.) THESE are three references under S. 29(2) of the Orissa Agrl. IT Act, made by the Agricultural Tribunal, Orissa, referring the following questions of law for the opinion of this Court :

(2.) THE facts found by the Tribunal are that the joint family at present consists of four persons, namely, Binod Behari, Purna Chandra, Shyam Sundar and Lakshmidhar, whose relationship will appear clear from the geneological tree shown below : Jadumoni Patnaik Biswambar Bhagaban.

(3.) AS regards the second question also there is a Bench decision of this Court reported in Sridhar Sahu vs. The Member in charge of Commercial Taxes, Board of Revenue 23 CLT 384 (Ori), in which it was held that though the expression "brothers only" occurring in the Schedule to the Agricultural IT Act must be given a wide meaning in view of the inclusive definition given therein so as to include a joint family consisting of sons of a brother or grandsons of a brother, nevertheless, it cannot be further extended to include a joint family in which one of the members is a great grandson of a brother. That decision would inferentially show that if the family consisted of sons of brothers or grandsons of brothers that family would come within the scope of the said Schedule to the Orissa Agrl. IT Act. Mr. Ghosh appearing for the defendant however challenged the correctness of this decision and urged that it was implied in the very definition of the expression "brothers only" in the Schedule that at least one of the brothers must be a surviving coparcener though the other brothers' branches may be represented either by their sons or son's sons. We are however unable to find anything in the language of the Schedule to support this contention. Explanation 1 to the Schedule says that "brother" includes the son and the son of a son of a brother and the widow of a brother. It does not say, nor does it follow by necessary implication, that one of the brothers must be surviving in the joint family. To that extent the Orissa Act differs from the Bihar Agricultural IT Act (7 of 1948), where in S. 11 (corresponding to S. 10 of the Orissa Act) the language used is as follows :