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Judgment
M. JAGANNADHA RAO, J. :
Leave granted.
This appeal is preferred by the two appellants namely, A. G. Varadarajulu and Smt. V. Jayalakshmi, who are respectively husband and wife, against the order passed by the Tamilnadu Land Reforms Special Appellate Tribunal, Madras in TRP No. 82 of 1994, dt. 25th April, 1995. The case arises under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 (hereinafter called the Act).
The 1st appellant is the declarant. The 1st appellants plea is that land of an extent of acres 36.74 allotted in favour of his wife, the second appellant Smt. V. Jayalakshmi in a partition deed dt. 25th September, 1970 executed between the appellants son Balaguruswamy and his wife should be excluded from his (the 1st appellant) holding as being stridhana land of his wife, within the meaning of the said expression in s. 3(42) of the Act to the extent permissible under s. 5(4) of the Act.
The following are the facts :
There was a partition deed between the first appellant and his son Balaguruswamy in the year 1959. Under the said document, each of them was allotted certain extent of the joint family property. On the basis that the wife of the first appellant was not allotted any property towards her right to maintenance against the joint family property, another partition deed dt. 24th September, 1970 was executed between the minor son, the said Balaguruswamy and his mother, i.e., wife of first appellant. Under this document towards the right to maintenance, the said Balaguruswamy allotted acres 36.74 in favour of his mother. At the time of execution of said partition deed dt. 24th September, 1970, the son Balaguruswamy, being a minor was represented by his father, the first appellant as guardian.
The land ceiling authorities started proceedings under the Act for computing the admissible ceiling area which could be allocated to the first appellant under the Act. While doing so, the Authorised Officer by his order dt. 18th September, 1985 held that even though the partition deed dt. 24th September, 1970, was a valid document having been executed between 15th February, 1970 and 2nd October, 1970 as permitted by s. 21A still inasmuch as the second appellant was not in possession of this allotted land at the time of commencement of this Act on 15th February, 1970 as required by s. 3(42), the same could not be treated as her stridhana. It was consequently held that no part of it could be excluded from the holding of the first appellant even to the extent permitted by s. 5(4) of the Act. This was the decision of the Authorised Officer made on 18th September, 1985.
A preliminary statement to that effect was published in the Gazette in Form 7 on 18th September, 1985. No objections were received from the appellants. A final statement was published in the Gazette on 22nd January, 1986 under s. 12 of the Act and thereafter a final notification was published in the Gazette on 12th February, 1986 under s. 18(1) of the Act.
Against the said final notification, a revision was preferred by both the appellants before the Land Commissioner at Madras. The revision was rejected on 25th September, 1986 holding again that the abovesaid extent allotted to the second appellant in the partition deed dt. 24th September, 1970 could not be treated as stridhana inasmuch as it was not in her possession at the time of commencement of the Act, i.e., 15th February, 1970 as required by s. 3(42) and that it was not sufficient that she had a pre-existing right of maintenance as on 15th February, 1970. It was held that it was rightly included in the holding of the first appellant by the Authorised Officer.
Against the said order of the Land Commissioner dt. 25th September, 1986, WP No. 11055/86 was filed in the Madras High Court which was transferred to the Tamil Nadu Land Reforms Special Appellate Tribunal, after its constitution and numbered as TRP No. 82/94. After the TRP was dismissed by the Special Tribunal by its judgment dt. 25th April, 1995, the appellants have preferred this appeal against the said judgment.
We have heard learned senior counsel for the appellants, Sri S. Sivasubramaniam and the learned counsel for the respondents, Sri M. A. Krishna Moorthy.
Learned senior counsel for the appellants submitted that the Tribunals had accepted that the partition deed dt. 24th September, 1970 executed between the second appellant and her son Balaguruswamy was a valid document, as it was executed between 25th February, 1970 and 2nd October, 1970 during which period such partitions were permitted by s. 21A. It was argued that if the said partition deed was to be deemed to be valid under s. 21A, then it must be held that because of the non obstante clause in s. 21A, the conditions laid down in s. 3(42) for treating the land as stridhana land could not apply and therefore, it was not necessary that the land covered by the partition deed should be held by the female as on 15th February, 1970, the date of commencement of the Act.
Alternatively, it was argued for the appellants that the facts of the case fit into the definition of stridhana land in s. 3(42) inasmuch as the allotment of land to the second appellant on 24th September, 1970 by her son was in satisfaction of her right to maintenance under Hindu law which was in existence even on 15th February, 1970, the date of commencement of the Act. It must, therefore, be held that she was holding this land even from 15th February, 1970 even though such right to maintenance crystallised into the land on 24th September, 1970.
On the other hand, learned counsel for the State contended that merely because the partition deed dt. 24th September, 1970 had been accepted as a valid document under s. 21A, the land could hot be excluded from the holding of the first appellant. The non obstante clause in s. 21A does not override s. 3(42). The alternative submission of the appellants based on s. 31(2) could not also be accepted because the mere existence of a right to maintenance against the joint family property as on 15th February, 1970, the date of commencement of the Act, was not sufficient for the purpose of treating the said property as "held" by the 1st appellants wife on that date and it must be established that she was in possession of the land as owner and in her own name as on 15th February, 1970. Reference was made to s. 3(19) of the Act which defines the words to hold land. It was argued that the allotment of the land on 24th September, 1970 under the partition deed with her son, even if it be in recognition of the right of maintenance was not sufficient to satisfy the conditions laid down in s. 3(42).
We shall initially refer to the relevant provisions in ss. 3(19), 3(42), 5(4)(a) and 21A as they stood after the amendment by Amending Act 17/70 (which came into force on 15th February, 1970) and before the Amending Act, 37/72 (which came into force on 1st March, 1972).
"Sec. 3(19) : "to hold land" with its grammatical variations and cognate expressions means to own land as owner or to possess or enjoy land as possessory mortgagee or as tenant or as intermediary or in one or more of those capacities."
"Sec. 3(42) : Stridhana land means any land held on the date of commencement of this Act by any female member of a family in her own name."
"Sec. 5(4)(a) : Subject to the provisions of sub-s. (5), where the stridhana land held by any female member of a family together with the other land held by all the members of that family is in excess of 15 standard acres the female member concerned may hold in addition to the extent of land which the family is entitled to hold under sub-s. (1), stridhana land not exceeding 10 standard acres :
Provided that where any extent of stridhana land held by a female member is included in the extent of land which the family is entitled to hold under sub-s. (1) and in case where the extent so included is -
(i) 10 or more than 10 standard acres, she shall not be entitled to hold any stridhana land in addition to the extent so included : or
(ii) less than 10 standard acres, she may hold in addition to the extent so included an extent of stridhana land which together with the extent so included, shall not exceed 10 standard acres.
(b) where the extent of stridhana land held under cl. (a) by any female member of a family consisting of more than five members ...."
21-A : Certain partitions and transfers to be valid -Notwithstanding anything contained in s. 22 or in any other provision of this Act and in any other law for the time being in force, where, after the date of commencement of this Act but before the notified date.
(a) any person has effected by means of a registered instrument a partition of his holding or part thereof : or
(b) ......
(c) ..... such partition or transfer shall be valid :
....."
We shall now deal with the issues raised before us.
Do the words notwithstanding anything in any other provision of this Act occurring in s. 21A override s. 3(42) ?
It is true that the Tribunals below had accepted that the partition deed dt. 24th April, 1990 was executed after 15th February, 1970 and before 2nd October, 1970 and was therefore, a valid document. Sec. 21A says that that section shall have effect "notwithstanding anything contained in s. 22 or in any other provision of this Act and in any other law for the time being in force". The contention of the appellants is that if the partition deed is valid in view of s. 21A, then in view of the above non obstante clause, the respondents cannot insist that the land allotted to the second appellant under the deed on 24th September, 1990 shall further conform to the conditions contained in the definition of stridhana land in s. 3(42), namely, that she must be holding the land as on 15th February, 1970.
It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Vs. Arabinda Bose [AIR 1952 SC 369] Patanjali Sastri, J. observed : "The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously". In Madhav Rao Scindia Vs. Union of India [1971 (1) SCC 85 139] Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. "A search has, therefore, to be made with a view to determining which provision answers the description and which does not".
It will be noticed that s. 21A refers specifically to s. 22 of the Act but with regard to other provisions of the Act, it is silent. It says that certain partitions and transfers are to be valid notwithstanding any other provision of the Act. Therefore, basically, s. 21A is intended to treat as valid such partitions or transfers as are mentioned in s. 21A even if such partitions or transfers would otherwise have been invalid. Now, s. 3(42) does not deal with invalidity of partition or transfers but deals with stridhana land. The subject-matter of the enacting part of s. 21A does not have any connection with subject-matter of s. 3(42). Hence, it is clear that the non obstante clause in s. 21A was not intended to override any thing in s. 3(42).
Learned counsel for the appellants has placed reliance on the judgment of this Court in Sushila Devi Ammal & Ors. vs. State of Madras 1993 Supp. (1) SCC 462. That case no doubt dealt with s. 21A and held that if the case fell within s. 21A, then s. 23 would not be applicable, relying upon the words in s. 21A "in any other provision of this Act". We are here not concerned with s. 23 and the above decision cannot, therefore, be of any help to the appellants.
Stridhana land under s. 3(42) is not the same thing as known to Hindu law :
Appellants want to rely upon the right to maintenance inhering in a female under Hindu law for the purpose of construing the definition of stridhana land in s. 3(42) of the Act. Question arises whether while dealing with definitions under Land Ceiling laws - which are applicable to persons governed by different personal laws - it is permissible to construe the definitions in the light of personal laws.
As shown below, unless the definitions in land ceiling laws themselves refer to personal laws, it is not permissible to resort to the personal laws while interpreting definitions in land ceiling laws. It may be that for purposes of computation of the ceiling area, the land ceiling law may itself refer to the personal laws or it may be necessary to refer to personal laws but that is different.
Under this very Act, Venkataramaiah, J. (as he then was) in M. Ramakrishnan vs. State of Madras [1979 (4) SCC 209] stated that the definition of stridhana land in s. 3(42) is not used in the Act in the sense in which it is used in Hindu law. The Act is applicable to Hindus as well as others governed by personal laws. In that case, it was argued that certain land which had devolved on the declarants wife on 20th April, 1962 upon death of one Sivagami Achi on the basis of the latters should be treated as stridhana land of the declarants wife. Under s. 3(42) as it then stood, such land should have been held by the female as on 6th April, 1960, which was the then date of commencement of the Principal Act, 1961. Such a contention was rejected by stating that though under the personal law - the Hindu law, applicable to the declarants wife, the land would have normally been treated as stridhana, still the definition under the land ceiling law as to what was stridhana was different. The definition required the land to be held by a female as on 6th April, 1960 in her own name and if she came to hold the land on a latter date, viz., 20th April, 1962, then it could not be treated as stridhana land for purposes of the Act.
Similarly, in Vengdasalam Pillai vs. Union Territory of Pondichery [1985 (2) SCC 91] this Court was dealing with the definition of family in the Pondicherry Land Reforms (Fixation of Ceiling on Land) Act, 1973, and a plea was raised that once the minor sons of the declarant partitioned their property with their father, they could not be treated as part of their fathers family. Rejecting the said contention, it was observed that it was erroneous to assume that the definition of family in the Act was used in the sense known to Hindu law. It was held that the provisions of the Act are applicable to holders of land ... irrespective of religions, communities etc. The lands might be held by Hindus, Christians, Muslims or by persons belonging to other religious faiths. All of them were equally governed by provisions of the Act. The concept of joint family was totally foreign to the personal laws of these communities. It was, therefore, manifestly wrong to approach the interpretation of sections of the Act with the preconceived notion that in using the expression family, the legislature had intended to connote an undivided family as known to Hindu law and that after partition with minor sons had taken place in a Hindu joint family, there could not be a family consisting of the father and his divided minor sons. The land ceiling law could define a family as consisting of the father and minor sons and such minor sons could also be divided minor sons, though such a concept was not known to customary Hindu law.
We are, therefore, of the view that it is not permissible for the appellants to introduce principles relating to maintenance of a wife or mother into the interpretation of the word stridhana land in s. 3(42) of the Act.
Can it be said that the second appellant was holding the land on 15th February, 1970 ?
Even assuming that the right to maintenance of a wife or mother as known to customary Hindu law could be used to construe the definition of stridhana land in s. 3(42), the question would be whether the second appellant could be deemed to be holding this extent of land on 15th February, 1970, the date of commencement of the Act in view of the allotment of the land on 24th September, 1970 under the partition deed in recognition of such a pre-existing right of maintenance.
We have already referred to s. 3(19) of the Act which defines the words to hold land. Under that definition, a person is said to hold land if he owns land as owner or possesses or enjoys land as possessory mortgagee or as tenant or as intermediary or in one or more of those capacities. In the context of s. 3(42) defining stridhana land, a person can be said to hold the land if she owns as owner or possess the same with elements of title.
The word hold or held in the context of land has come up for consideration in several cases before this Court. In State of U.P. vs. Sarjoo Devi [1977 (4) SCC 2] while dealing with the said word in s. 3(14) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as follows :
"The word held, occurring in the above definition which is a past participle of the word hold is of wide import. In the Unabridged Edition of the Random House Dictionary of the English language, the word hold has been inter alia, stated to mean to have the ownership or use of; keep as ones own ....
In Websters New Twentieth Century Dictionary (Second Edn.), it is stated that in legal parlance the word held means to possess by legal title. Relying upon this connotation, this Court in Bhudan Singh and Another vs. Nabi Bux and Another [1969 (2) SCC 481] interpreted the word held in s. 9 of U.P. Zamindari abolition and Land Reforms Act, 1950 as meaning possession by legal title."
Again in State of Andhra Pradesh vs. Mohd. Ashrafuddin [1982 (2) SCC 1] , it was held as follows :
"According to Oxford Dictionary held means : to possess; to be the owner or holder of tenant of; keep possession of; occupy. Thus, held connotes both ownership as well as possession, and in the context of the definition, it is not possible to interpret the term held only in the sense of possession."
The word holds was again interpreted in Hari Ram and Others vs. babu Gokul Prasad [1991 Supp. (2) SCC 608] , where it occurs in s. 185(1) of the Madhya Pradesh Land Revenue Code, 1959. It was observed :
"The word holds is not a word of art. It has not been defined in the act. It has to be understood in its ordinary normal meaning. According to Oxford English Dictionary, it means, to possess, to be owner or holder or tenant of. The meaning indicates that possession must be backed with some right or title."
We are, therefore, of the view that the word held in s. 3(42) is used in the sense that the female must be in possession of the land as owner or with some element of title on 15th February, 1970, the date of commencement of the Act.
Whether the mere existence of a right to maintenance as on 15th February, 1970 is sufficient ?
In our opinion, it is not sufficient that as on 15th February, 1970, the second appellant had a right to maintenance under the customary Hindu law against this property in satisfaction of which this extent of land was allotted to her on 24th September, 1970. A right to claim maintenance against certain property of the joint family cannot be equated with holding the land as on 15th February, 1970.
A point almost similar to the one before us arose under the Maharashtra Agricultural (Ceiling on Holdings) Act, 1961 (as amended in 1975) in Rambhau vs. State of Maharashtra [1995 Supp. (3) SCC 74]. In that case, the tenure holder had two unmarried daughters on the relevant date and he contended that, while calculating the ceiling area of the family, the land ceiling authorities should have taken into account the liability of the family for the maintenance and marriage expenses of these daughters and their share in the land should have been notionally worked out and so much of the area as would have been found sufficient for their maintenance should have been excluded while determining the ceiling area of the tenure holder. This Court rejected the said contention and in that connection reference was made to s. 3(3) of the said Act which referred to the initial requirement of a person who is a member of a family to hold a share in the family property which share could, for purpose of computation be notionally worked out, by applying the personal law. It was held that the minor unmarried daughters in a Hindu joint family had basically no right to a share and therefore, the question of notionally working out a share, as on the relevant date, did not arise. Sahai, J. observed as follows :
"An unmarried daughter may be entitled for maintenance and marriage expenses, but she was not entitled to a share on partition either under the customary Hindu law or even under the Hindu Succession Act, 1956 or Hindu Adoptions and Maintenance Act, 1956. Therefore, a daughter being not entitled to a share on partition, the notionally working out of her share under s. 3(3)(i) stands legislatively excluded."
We are in respectful agreement with the above view and the above principle is equally applicable to the case before us. Like s. 3(3) (i) of the Maharashtra Act, the provision in s. 5(3) of the Madras Act, 1961 also provides for notional computation of the share of persons who basically hold a share in joint family property under Hindu law. But such a provision dealing with mode of computation is attracted only to persons who, at the date of commencement of the Madras Act (15th February, 1970), hold an undivided share in the property of the Hindu joint family. It must, therefore, be held that s. 5(3) r/w the Explanation permits notional computation only in respect of those who hold an undivided interest in the joint family property at the date of commencement of the Act. As in the case of unmarried daughters, in the Maharashtra case, the second appellant before us had no basic right to a share in the joint family property inhering in her on 15th February, 1970 and she cannot therefore, be said to be holding stridhana land as on the date of commencement of the Act, i.e., 15th February, 1970, within s. 3(42) of the Act. Therefore, the fact that she had, as on 15th February, 1970, a right to maintenance against this property which later crystallised into the allotment of this property in her favour on 24th September, 1970 is not sufficient. Neither under the customary Hindu law, nor under the Hindu Marriage Act, 1955 nor under the Hindu Succession Act, 1956 nor under the Hindu Adoptions and Maintenance Act, 1956 is there any provision which gives a share to a wife in the joint family property held by her husband nor to a mother in the joint family property allotted to her son in a partition.
Learned senior counsel for the appellants placed strong reliance on certain observations in the judgment of V. Tulasamma & Others vs. Sesha Reddy (Dead) By Lrs. [1977 (3) SCC 99] In that case the Court was concerned with s. 14(1) and (2) of the Hindu Succession Act, 1956. If the land came to be possessed by the female at the commencement of the Hindu succession Act, 1956 in lieu of a pre-existing right of maintenance, the land would become her absolute property under s. 14(1) of the Act. For the purpose of holding that a female in a joint Hindu family had a pre-existing right to maintenance under Hindu law and that the case fell within s. 14(1) and not under s. 14(2), Fazal Ali, J. in a separate judgment described a Hindu wife as one half of the body of her husband and as one who could be treated as a co-owner of the property in a subordinate sense. The context in which those observations were made was different. Further, we do not, however, find any such observations in the majority judgment of Bhagwati, J. (as he then was) with whom A. C. Gupta, J. agreed. We are of the view, as already stated, that a wife or a mother in a Hindu joint family does not basically have a share in the joint family property and she has only a right to maintenance and the mere existence of such a right against the joint family property as on 15th February, 1970 could not, in law, be treated as being equivalent to holding a share in the joint family property, as on that date. The fact that the land was reduced to the possession of the second appellant on 24th September, 1970, could not be equated with her possession on 15th February, 1970.
For the aforesaid reasons, this appeal fails and is dismissed but in the circumstances, without costs.