Collector vs Ananga Udaya Singh Deo

K.S. Raghupathi, Member

This revision is on a motion of the Collector, Bolangir u/s 59(2) of the Orissa Land Reforms Act.

In Case No. 16 of 1974 the Revenue Officer, Bolangir, determined the ceiling area of Ananga Udaya Singh Deo. In so doing the Revenue Officer allowed out of the total holding of Acs. 81.26, lands to the extent of 33 acres to be retained and declared 43 26 acres as surplus.

The Collector has moved the Board of Revenue for revision of the order on the ground that when Ananga Udaya Singh Deo filed his return u/s 40 A on 24 April 1974, his father was living and the family consisted of his father, mother, the two brothers and four sisters. Returns had also been filed by the father, the mother, the brother and his wife. The Revenue Officer should therefore have dealt with the five returns together in terms of the Proviso to Clause (2) of Section 41, which reads

provided that if more than one return is filed in respect of the same family all such returns shall be taken together for consideration.

He has also pointed out that the Revenue Officer erred in allowing 3 acres to be retained u/s 39 (a) when there was only 0.40 acres of homestead land coming within the purview of that clause.

It is not disputed in the hearing before the Board of Revenue that the lands shown by R.N. Singh Deo, K.K. Devi, R.R. Singh Deo, P.K. Devi and Ananga Udaya Singh Deo in their respective returns are lands held individually by each of them. After hearing Mr. R.C. Patnaik, the learned Counsel for Ananga Udaya Singh Deo, who has so ably argued why the surviving seven individuals should not be treated as one family and Mr. D.C. Sahu the learned Standing Counsel who has equally ably presented the case for the Collector. I would agree that the order passed on 8 July 1975 must be set aside and the return filed by Ananga Udaya Singh Deo should be considered together with those of other members of the family.

While father R.N. Singh Deo was alive there was no doubt that he, his wife K.K. Devi and his then unmarried son Ananga Udaya Singh Deo together constituted a family. The major married son R.R. Singh Deo who held his lands separate would be a member of the family provided it is found that he had not separated from the family before 26th day of September 1970. His wife P.K. Devi would not be a member of that family but in the event of R.R. Singh Deo had separated she would be a member of her husband�s family.

It has been argued that a married daughter ceases to be a member of the father�s family. It is pointed out that any other construction of Clause (b) of Section 37 would lead to the loss of lands which she might have got from her husband or husband�s family, in the process of determination of the ceiling area of her father and to the loss of lands which she might have got from her father or father�s family in the process of determination of the ceiling area of, the husband. In the light of the national guidelines which were stated to be the raison d�etre for the Amendment Act of 1973, one would sympathies with the view that a married daughter ought not to be included in the family. However, Clause (b) of Section 37 which reads

(b) �family� in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970.

is clear and unequivocal. A married daughter cannot escape the consequences of being a member of two different ceiling families if she or her husband is the "individual" in the second ceiling family. One would hope that the consequences will be mitigated by Revenue Officers determining the ceiling area of the father or husband first, allowing mutation and then determining the ceiling area of the other. One could also commend to Government that they might consider the desirability of excluding married daughters from the definition of a "family", but with the definition of a family, as it obtains at present, a married, daughter cannot be excluded from the family.

Accordingly, the four daughters Rajasri, Rupasri, Brajasri and Krishnakumari cannot be excluded from the family of their father in the determination of the ceiling area of that family.

The question is whether on the demise of the father, R.N. Singh Deo the other members continue to constitute one ceiling family. On a literal construction of the definition in Clause (b) of Section 37 it can be argued that unless the husband and the wife are both alive the definition of a family is not satisfied. Stretching this argument further a husband and wife without any children will not constitute a family either. Such a construction would stultify the intention. A husband and wife without any children will get twenty standard acres but if they have two children, the four of them together will get only ten standard acres. One would therefore have to interpret a family to mean the individual, the husband, or the wife, as the case may be if living and children, if any, but excluding of course major married sons who had separated before the 26th day of September 1970.

I would accordingly hold that even after the demise of R.N. Singh Deo, his dowager, their two sons and four daughters will continue to constitute a family. It is not clear from the records whether the major married son R.R. Singh Deo had separated before 26 September 1970. If as would seem, he was holding property in his own right the chances are that he had separated. The Revenue Officer would have to satisfy himself about this. The returns submitted by the deceased father, the mother and son Ananga Udaya Singh Deo must all be considered in terms of the proviso to Section 41(2). Each of them must be called upon to furnish information as specified in Rule 29-D(3). The return filed by the major married son R.R. Singh Deo should also be considered together with the others unless it is found that he had separated before the 26th day of September 1970.

In the event R.R. Singh Deo is found to have separated from the family before the relevant date, the return submitted by him will have to be considered along with the return submitted by his wife P.K. Devi. They must also be called upon to satisfy the requirements of Rule 29-D(3), if they have not done so. I would accept the contention that a strict interpretation of that rule would not require K.K. Devi to disclose information in regard to the members of the "family" if any on her father�s side. I would also agree that no one is required to furnish village-wise particulars of lands held outside the State of Orissa either by himself or by any member of his family. It would also follow that even if the father or the mother holds land in Orissa, there would be no obligation to furnish information under Rule 29-D(3) unless the provisions of Section 37(8) are attracted.

Consequent on the demise of R.N. Singh Deo it is necessary to substitute the legal representatives before proceeding further u/s 43. In view of the requirements of the proviso to Section 41(2) the learned Revenue Officer should substitute the legal representatives before he considers the cases of all those who form a "family". It has also been pointed out during the hearing that in some of the draft statements the former palace, the circuit house, residential buildings and nonagricultural land in urban areas have been included. It is hardly necessary for the Board of Revenue to stress that the injunction in Section 37(B) is in regard to the holding of any land in excess of the ceiling area. Land has been defined ion Sub-section (14) of Section 2 of the Act. There is an admirable exposition of what would come within this definition, in the decision of the High Court in Mahurilal Agarwalla Vs. Dusasan Sahu and Others, . Land would include tanks and homestead but a special dispensation has been given in Clause (a) of Section 39 whereby in determining the ceiling area in respect of a person homestead lands or tanks with their embankments or both shall be left out of account. But such exclusion shall not exceed three ordinary acres in the aggregate. The Revenue Officer was in error in allowing three acres in addition to the ceiling area of ten standard acres when the homestead lands and tanks within the holding of Ananga Udaya Singh Deo did not aggregate to more than forty decimals.

With these observations, the order of the learned Revenue Officer is set aside and the case remanded for him to dispose of it taking note, inter alia, of the proviso to Clause (2) of Section 41.

Revision allowed and case remanded.