TMI Blog1982 (3) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the Act . The holding of the respondent consisted of survey Nos. 36, 37, 41, 42 and 92, all dry, admeasuring acres 88.46 cents in village Ghotkuri in district Adilabad. It appears that he had transferred 17 acres from survey Nos. 36 and 11 acres and 48 cents from survey No. 41 to another person under unregistered sale deeds pursuant to an agreement for sale and had gifted away survey Nos. 37, 42 and 92 to his own son Naimuddin by a document written on a plain paper. Pursuant to a notice section 8 of the Act the respondent filed a declaration in respect of his holding. In his declaration, however, he did not include in his holding the area transferred by him under two unregistered sale deeds and the aforesaid gift deed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 3 of the Act, the land transferred by the respondent will still continue to be a part of his holding. In order to appreciate the contention we have to read the definition of holding along with the explanation attached to it: 3 (i) holding means the entire land held by a person- (i) as an owner ; (ii) as a limited owner ; (iii) as an usufructuary mortgage ; (iv) as a tenant ; (v) who is in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or otherwise, or in one or more of such capacities ; and the expression to hold land shall be construed accordingly. Explanation :-Where the same land is held by one person in one capacity and by another per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans : to possession to be the owner or holder or 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. For example, if a land is held by an owner and also by a tenant or by a person in possession pursuant to a contract for sale, the holding will be taken to be the holding of all such persons. It obviously means that an owner who is not in actual possession will also be taken to be a holder of the land. If there was any doubt in this behalf, the same has been dispelled by the explanation attached to the definition of the term holding . The explanation clearly contemplates that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Nair that the interpretation sought to be put by the Attorney General on the definition would create an anomalous position in as much as the same land according to the definition may form part of the holding of the transferor as well as of the transferee or of the owner as well as of the tenant. At the first flush it may appear to be paradoxical to say that the same land could form part of the holding of various persons enumerated in the definition of holding but on a closer scrutiny of the relevant provisions of the Act the proposition presents no difficulty. A reference may be made to sections 10 and 12 of the Act. In so far as they are material for the purpose of this case they read: 10 (1) If the extent of the holding of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where land proposed to be surrendered under this section is burdened with a mortgage, the Tribunal may, on an application made by the mortgagor with the consent of the mortgagee, by order, transfer such mortgage from the land so proposed to be surrendered to the residuary holding of the mortgagor or to any part thereof. (b) Where the land so surrendered under clause (a) is also not acceptable to the Tribunal, the Tribunal shall, after giving an opportunity to the person concerned of being heard, select any other land in lieu thereof, and thereupon, the said land shall be deemed to have been surrendered by such person. 12(1) Where any land is surrendered or is deemed to have been surrendered under this Act by any usufructuary mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part performance of contract for sale or otherwise, the possession of such land shall, subject to such rules as may be prescribed, revert to the owner. Sub-section (5) also safeguards the interest of the mortgagee in possession or a person in possession in pursuance of a contract for sale and provides: the owner to whom the possession of the land reverts under sub-section (4) shall be liable to discharge the claim enforceable against the land by the limited owner or person in possession; and the land surrendered shall, if held as a security, continue to be the security. Even so, there may be cases in which some prejudice might be caused to some tenure holders but that cannot be helped. If the definition of the term holding is couched i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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