Married daughters do not come within the definition of "family" as provided under Section 37(b) of the Orissa Land Reforms Act, 1960, and their lands cannot be clubbed with lands held by their mother for determining ceiling surplus lands.

JUDGMENT :

S.C. Mohapatra, J. - The two married sisters are Petitioners in these two writ applications under Article 226 of the Constitution of India for quashing the orders in a ceiling surplus proceeding under the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act') where they have been treated to be member of the family of their mother.

2. The Petitioner claimed that much before provisions in respect of ceiling on holding of land provided under the Act came into force, their mother made gift of some of her lands to them individually and accordingly, they not being the members of the family of their mother, these lands are to be excluded from consideration for determining the ceiling surplus lands of their mother. Statutory authority held that Petitioners, though married daughters belong to family of their mother.

3. There can be no dispute that in Orissa, after marriage, daughters do not belong to family of their mother. However, the term "family" has an artificial definition in the act for determination of ceiling surplus land as provided u/s 37(b) of the Act which reads as follows:

37(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 25th day of (September, 1970.

4. Considering the meaning of the aforesaid definition, R.C., Patnaik, J. in a decision of the Full Bench reported in 55 (1983) CLT 41 Nityananda Guru v. State of Orissa, observed:

It is a moot question, however, if lands held by a married daughter, major or minor, or by a divorced daughter living with the parent/parents, can be clubbed with the lands held by the parent parents, as the case may be. is it a case of cases omissus ?" A daughter on marriage gets transplanted to the family of her husband and becomes a member of the family as defined in Section 37(b) as wife. Can the lands held by her be clubbed twice, as the spouse while determining the ceiling area of the parent ?

5. B. N. Misra, C.J, appreciating the observation made by B. C. Patnaik. J. observed;

It is a matter for the legislature to take note of and not for the Court to accept and act upon.

6. Considering the said decision, a Division Bench in the decision reported in 60 (1985) CLT 55 Maharani Bewa and Ors. v. State of Orissa, through the Subdivisional Officer. Athamallik and Ors. observed:

The two married daughters continue to be her children notwithstanding their marriage. Therefore, the family in relation to the mother would include the married daughters. Our view is supported by the decision of the Full Bench of this Court reported in 65 (1983) CLT (F.B.) Nityananda Guru v. State of Orissa.

7. This finding was considered by Anr. Full Bench of this Court in Anusuya Rath and Another Vs. State of Orissa and Others. It was observed:

S.C. Mohapatra, J who delivered the judgment for the Bench referred to a passage in the Full Bench judgment which had no relevance to the question in issue and as already stated, under the impression that the point was covered by the Full Bench did not give any reasoning for the view.

8. Conclusion of Anr. unreported decision of a Division Bench in OJC No. 2563 of 1981, decided on 5-7-1933 Srimati Dai v. Revenue Officer-cum-Tahasildar and Ors. which relied upon the first decision of the Full Bench was considered. After discussion it was held:

I would unhesitatingly hold that a daughter, who is already married by the appointed date, would not come under the definition of 'family.

Views taken in the aforesaid two Division Bench decisions, contrary to the Full Bench decision were held not to have laid down the correct law.

9. When a Full Bench of this Court specifically considering the earlier Full Bench decision, held that married daughter does not come within the definition of family overruling two Division Bench decisions, the same would be binding o