Gopalan Nambiyar, C.J.
1. This appeal is by the plaintiff against the final decree in a suit for partition of his one-fourth share of an extent of nearly 88 acres of paddy land. The Jenm right in the same belongs to Karinganampalli of Nedumprath palace. There was an otti to four sisters--, one Bhagirathi (deceased), and defendants 13 to 15. Each of them was entitled to an undivided 1/4th share. Bhageerathi's legal representatives are defendants 10 and 11. On 4-11-1121 M. E. Ext. P-1 pattom chit was executed by the 1st defendant and one deceased Ouseph (represented by his legal representatives, defendants 2 to 8) to defendants 10 and 13, representing all the four co-owners. This was in respect of the entire 88 acres. Defendant 1 died pending suit and the legal representatives are defendants 9 and 16 to 19. By Ext. D-8 dated 17-4-1952 there was a division for convenience of enjoyment among the lessees. The 1st defendant was put in possession of the western half of an extent of nearly 44 acres and Ouseph, of the eastern half, of the same extent. The 9th defendant took a lease-deed from defendants 13 and 14 regarding the western half. In 1953, Bhageerathi's legal representative sold his undivided 1/4th share in the otti right to the plaintiff by Ext. P-2. The plaintiff also obtained 1/4th share of the jenm right under Ext. P-3 from the 21st defendant who had become the owner of the said right under Exts. P-7 and P-12. In pursuance of these rights the present suit was instituted for partition. Paragraphs 11, 13 and 15 of the plaint are clear that it was the undivided 1/4th share in the reversionary right of the plaintiff that was sought to be partitioned. By a preliminary judgment dated 28-1-1959 the plaintiff's right to partition of a 1/4th share was declared. The question of physical delivery of possession of the' share was to be considered after vacating the statutory stay then in operation under the provisions of the Kerala Act 1 of 1957.
2. The 20th defendant had obtained right to a one-fourth share in enforcement of a hypothecation. He filed O. S. No. 230 of 1958 for partition of his share. Plaintiff and all the concerned persons were parties to the suit. On 28-7-1959 that suit ended in a preliminary decree for a 1/4th share in the entire 88 acres. A final decree followed on 15-7-1960 by which the plaintiff (the 20th defendant herein) was allotted the C plot in Ext. P-1 plan -- in occupation of the 7th defendant The 7th defendant surrendered that plot (plot E in Ext. P-4 plan to be noticed presently) to the plaintiff by a joint application by both, Ext. P-15 dated 27-2-1961.
3. The present suit ended in a preliminary decree on 28th January 1959, and a final decree followed on 8-8-1960. Plot A in Ext. P-1 plan was allotted to the 13th defendant, plot B to the 14th defendant, plot C (2) to the plaintiff, and plot D to the 15th defendant. There was thus duplication of allotment in respect of C plot by the two final decrees.
4. There was an appeal--A. S. No. 891 of 1960 (Ker)-- to this Court against the final decree dated 8-8-1960. In the appeal the plaintiff claimed that he was entitled to a 1/4th share in the entirety of 88 acres and that he was not concerned with the loss that had occurred of 22 acres by reason of the allotment of a 1/4 share to the plaintiff in O. S. No. 230 of 1958. A learned Judge (Vaidyalingam J.) of this Court (as he then was), by judgment dated 5-7-1965 held that the plaintiff can claim a 1/4 share only in the extent of properties left after allotment of the one-fourth share to the plaintiff in O. S. No. 230 of 1958. The Commissioner was directed to take into account the remaining properties, after the allotment to the plaintiff in O S. No, 230 of 1958.
5. In pursuance of the judgment in A. S. No. 891 of 1960 (Ker), the trial court appointed a Commissioner to divide the 66 acres of land (the balance after excluding the 22 acres allotted to the plaintiff in O. S. No. 230 of 1968). A fresh plan Ext. P-4 was prepared. By the revised final judgment the trial court negatived the claim of the contesting defendants to fixity of tenure against the plainiff. The two C plots were allotted to the plaintiff, the A & B plots to the defendants 13 & 14, and the D plots (two ) to defendant 15. The E plot was allotted to the 20th defendant (plaintiff in O. S. No. 230 of 1958). C2 plot had been surrendered by the 6th defendant, and as for C1 plot, it was ordered that plaintiff could take possession. By order of the High Court dated 22-6-1961, the plaintiff had been appointed Receiver in respect of the 22 acres in possession of the 6th defendant. Hence it was found that the 6th defendant was not liable to pay rent from the year 1137 M. E., and that there was no need for a fresh delivery of C2 plot. As plaintiff was appointed Receiver in respect of 22 acres, and as, after the decree in A. S. No. 891 of 1960 (Ker), he was entitled only to one-fourth in the balance of 66 acres, left after allotment to the plaintiff in O. S. No. 230 of 1958, his share would be only of an extent of 16 1/2 acres. Hence he was directed to surrender the excess of 22-16 1/2 = 5 1/2 acres to the 6th defendant. Against the said judgment the 6th defendant filed A. S. No. 52 of 1967. Defendants 13 & 14 filed A. S. No. 49 of 1967, and the 15th defendant filed A. S. No. 42 of 1967 to the District Court. A. S. No. 42 of 1967 and A. S. No. 49 of 1967 were dismissed. A. S. No. 52 of 1967 was partly allowed to the extent of holding the 6th defendant to be entitled to fixity of tenure to the texent of the 16i acres allotted to the plaintiff's share, as well (?) covered by plots C1 and C2. Plaintiff was to surrender possession of the excess area over and above the C plots allotted to him, of which he was in possession as Receiver, to defendants 6 and 7. The direction that the plaintiff might retain 16 1/2 acres was vacated.
6. Against the said decision the plaintiff filed S. A No 936 of 1970 (Ker) and the 15th defendant filed S. A. No. 46 of 1971 (Ker), In the latter appeal the only contention raised was that Section 4-A of the Land Reforms Act was unconstitutional. It was conceded that the contention cannot stand, and the appeal was dismissed. In S. A. No. 936 of 1970 (Ker) the learned Judge negatived the contention that the 6th defendant is not entitled to fixity in respect of the C1 and C2 plots allotted to the plaintiff, on the principle of 'substituted security', and dismissed the appeal. The memorandum of cross-objections by the 9th defendant to be restituted to C-1 plot was also dismissed. This further appeal is by the plaintiff.
7. In pursuance of the final decree of the trial court dated 30-6-1966 plots C1 end C2 had been allotted to the plaintiff. The 9th defendant who, under an arrangement noticed already, was in possession of the entire western half of the suit properties comprising plots A, B and C1, surrendered C1 plot to the plaintiff. The two together filed a joint application (Exts. P-13 dated 7-12-1966) to record the fact of surrender. Apparently, having second thoughts in regard to his action, the 9th defendant moved the Land Tribunal for restoration of possession of the C1 plot, alleging dispossession in 1967. By Ext. P-14 order dated 30-11-1971 the Tribunal dismissed the application, holding that there was no evidence of such dispossession. The 7th defendant surrendered the E plot in Ext. P-4 to the 20th defendant (the plaintiff in O. S. No. 230 of 1958). Ext. P-15 dated 27-2-1961 is the copy of the joint application moved by the two to record the fact of surrender.
8. On these facts, counsel for the appellant contended that the decree recognising fixity of tenure for the 6th defendant was wrong and unsustainable as the 6th defendant was only a lessee from a mortgagee and had no right to fixity of tenure in 1964 when the Land Reforms Act 1963, came into force, under Section 3 (1) (v) of the Act. Next, it was contended that as Receiver, the plaintiff had taken possession as early as on 16-9-1961, and that it was only the Amendment Act 35 of 1969 that conferred protection on tenants of mortgagees. For that reason again, it was said that the 6th defendant was not entitled to fixity of tenure. Thirdly it was contended that the 6th defendant was a quandom tenant who had lost possession and therefore not entitled to fixity of tenure. Finally, it was argued that tenancy rights should not have been recognised on propery ultimately allotted to the plaintiff and others on the doctrine of 'substituted security' eo as to make good to the 6th defendant the extent of 11 acres which he lost by surrender of C-1 plot of 11 acres. We shall proceed to examine these contentions.
9. Ext. P-1 lease of 1121 was regarding the entire 88 acres in favour of four co-owners. Defendants 13 to 15 were not only mortgagees but had also become owners of the equity of redemption. It was found in O. S. No. 136 of 1953 that the purchase by the 21st defendant of the equity of redemption under Exts. P-7 and P-12 was benami for defendants 13 to 15 and Bhageerathi. That suit was instituted by the 13th defendant to declare that the purchase was benami for all the four co-owners. It was compromised by Ext. D-1 petition followed by Ext. D-30 compromise decree, to which defendants 13 to 15 were parties, but not the legal representatives of Bhageerathi. But that would not make a difference on this aspect of the case. If the equity of redemption vested in defendants 13 to 15, the lease Ext. P-1, as far as they are concerned, would be one not as mortgagees but as full owners. The lessee would therefore be entitled to fixity of tenure by reason of Clause (iv) of the proviso to Section 3 (1) (v) of the Land Reforms Act, (the proviso was added by Act 35 of 1969). The provision in so far as it is material, is as follows:--
'3. Exemptions-- (1) Nothing in thisChapter shall apply to-
x x x x(v) tenancies in respect of land or of buildings or of both created by mortgagees in possession or by persons deriving title from such mortgagees:
Provided that nothing in this clause shall apply to such tenancies--
X X X X(iv) where the mortgagee or his successor-in-interest has acquired or acquires equity of redemption; or'
X X X XBut how stands the position in regard to the plaintiff, who is a transferee from the legal representative of Bhageerathi, not a party to Ext. D-30? The trial court held in paragraphs 16 and 17 that the lease in respect of Bhageerathi's undivided 1/4th share would only be a lease by a mortgagee. The lower appellate court held in paragraph 3 that by reason of continuous possession of himself and his predecessors since the date of Ext. P-1 of 1044 M. E., the 6th defendant is entitled to fixity of tenure even in respect of plaintiff's l/4th share, under Section 4-A of the Land Reforms Act read with Explanation I. Counsel for the respondent (Shri T.S. Venkateswara Iyer) is right in stressing that against this important finding and declaration of right there was no specific and direct frontal attack in Second Appeal before the learned Judge (vide paragraph 15 of the learned Judge's judgment). Also, the plaintiff's assignor under Ext. P-3 (21st defendant) had admitted in Ext. D-1 and Ext D-30 that his purchase of the equity of redemption under Exts. P-7 and P-12 was benami for all the co-owners, including the plaintiff. That is sufficient to attract Clause (iv) to the newly added proviso to Section 3 (1) (v). The proviso was newly added by the Amendment Act 35 of 19(19; but is attracted to the appeal by reason of the provision of transitory Section 108 (3), headed 'Transitory Provisions', which reads as follows:--
'108. Transitory Provisions:--
X X X x(3) If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by 'this Act.'
In view of the above section there can be little doubt that the 6th defendant is entitled to fixity of tenure. We affirm the finding that the 6th defendant is entitled to fixity of tenure. It is supportable, certainly with respect to the provisions of Section 3 (1) (v) and Clause (iv) of the proviso thereto. The finding as to fixity based on Section 4-A entered by the Lower Appellate Court was not specifically objected to, as seen from the judgment of the learned Judge. We have traced the developments which led to the surrender of C1 plot and to the loss of 22 acres by reason of the decree in O. S. No. 230 of 1958. It was in the process of partition that the plaintiff got his 1/4th share.
10. Counsel for the appellant contended that the plaintiff having taken possession as Receiver even in 1961 was entitled to continue in possession unaffected by any claim of fixity of tenure which was conferred on tenants of mortgagees only by the Amendment Act 35 of 1969. He relied on the decision of a learned Judge of this Court in Percy Bhanu v. Yohannan Skaria (1976 Ker LT 237). In that case, the lease deed of 1953 was for a term of one year, at the expiry of which, the demand for surrender was made and a suit for recovery of possession followed. A receiver was appointed in that suit who took possession in 1955. The assignee from the tenant claimed the fixity of tenure. The learned Judge observed thus:
'3. In this case the defendant was removed from the possession of the property in 1955. On that date he had no right to continue in possession as against the plaintiff. The term of the lease had expired, the rent was in arrears and so Act VIII of 1950 was not available to him and there was no law in force then to protect the possession of a person like the defendant. The possession of the Receiver, if the state of affairs in 1955 alone is considered, can only be a possession on behalf of the plaintiff. The delay of the court in disposing of the suit cannot place the defendant in a better position. Normally the rights of the parties as on the date of suit alone are adjudicated in the suit and if subsequent events or change of law have to be taken into account, which the court very often is bound to look into, the party who claims the benefit of it must strictly comply with the terms on which the new right accrues. The effect of the appointment is to remove the parties to the action from the possession of the property.
X X X xThis being the legal position the doctrine that the Receiver's possession is treated as possession of successful party on termination of the suit cannot be pushed to the extent of enabling a party to treat the Receiver's possession previous to the termination of the suit as his possession and claim a right to succeed in the suit solely on such deeming. He must succeed in the suit on other grounds, namely either that he has title to the property or that he has got a right to be in possession and if he succeeds on such grounds on the termination of the suit he may be able to contend that the Receiver's possession is his possession. In other words, only because he succeeds in the suit the possession of the Receiver enures to his benefit. This deeming is a consequence of success only and is not available to succeed in the suit. As stated earlier, a quondam tenant continuing in possession on the date when Act 1 of 1964 came into force will also be a tenant within the meaning of Act 1 of 1964. Here the defendant was removed and the Receiver put in possession in 1955 and that possession of the Receiver is not his possession.'
With respect, we are unable to endorse either the decision or the principle stated by the learned Judge; and we would overrule the said decision. It is important to remember in this case, that the property was in an undivided state, both in respect of the reversionary right of the lessors, as well as with respect to the leasehold right. As noticed in a very early decision Muttusami Ayyar J. in Orr v. Muthia Chetti ((1894) ILR 17 Mad 501), the appointment of a Receiver is an act of the Court that puts the property in custodia legis; the tenants become therefore, the tenants, so to say, of the Court, in custody of the property. The appointment of a Receiver would not therefore amount to a termination of the leasehold right or a dispossession of the tenant. The decision in Percy Bhanu v. Yohannan Skaria (1976 Ker LT 237) states the proposition widely, and we cannot endorse the statement of principle.
11. In Orr v. Muthia Chetti ((1894) ILR 17 Mad 501) Muttusami Ayyar J. observed regarding the appointment of a Receiver:
'The appointment is the act of the Court and once made in the interests of justice or ex debito justitiae, he is an officer or representative of the Court, and subject to its orders. His possession is the possession of the Court by its receiver, and the tenants in possession, when he is appointed to receive rents and profits of immovable property, become virtually tenants pro hac vice of the Court, their landlord. His possession is the possession of all the parties to the proceeding according to their titles......... For, it has been held in England in similar cases that a receiver appointed by the Court is appointed on behalf and for the benefit of all persons interested, parties to the suit or proceeding. This being so, it is clear that if a loss arises from the default of the receiver, the estate must bear the loss as between the parties to the suit or proceeding. It is true that when the party entitled to an estate is ascertained, the receiver will be considered his receiver and their (that?) principle is applicable in the case of a suit in which title to property is decreed, and not to the case before me, for the decree under execution is a money decree, the title in the property under attachment continuing to vest in the judgment-debtor. The first mentioned rule is only the result of the general principle that the loss must fall on the estate or its owner, subject to the receiver's liability. The terms 'receiver' and 'manager' are synonymous, and though the appointment of a receiver may, in certain cases, operate to change possession, yet it has no effect whatever on the title of either party to the property which is placed in the possession of the receiver.'
(pp. 503 & 504).
We think, the above exposition represents the correct principle of law. See further: Woodroffe: 'On Receivers' p. 61, para, 15, Kerr: 'On Receivers' pages 134 to 138.
12. It was argued that the quondam tenant who had lost the possession cannot claim the fixity of tenure. It was further argued that the 9th defendant having surrendered possession of C-1 plot to the plaintiff by joint application, Ext. P-13 dated 7-12-1966, would not be entitled to restoration of the said plot under Section 13-A of the Land Reforms Act, as a voluntary surrender recorded by Court on joint application cannot amount to an 'eviction' within the meaning of the section. The decision of one of us (myself) in Vaisyan Sebastian v. Augusteenju Marsal (1973 Ker LT 475) was cited. We think, the decision is inappropriate to the peculiar facts disclosed. The claim to fixity of tenure of the 6th and 9th defendants was negatived by the trial court in paragraph 16 of its final judgment dated 30-6-1966. Ext. P-13 was thereafter, and pending appeal against the said judgment. In appeal and in second appeal the finding and judgment of the trial court Were reversed and it was held that defendants 6 and 9 were entitled to fixity of tenure. The plaintiff is bound to make restitution and cannot deny the same on the ground of the surrender under Ext. P-13. The provision in the appellate judgment directing plaintiff to surrender to be 6th defendant was therefore quite justified. Our attention was invited to the decisions in Aypu Kuncheria v. Ramachandra Iyer (1968 Ker LJ 539) and Ouseph Lonan v. Kochunarayana Pisharady, 1971 Ker LT 155: (AIR 1973 Ker 76) (FB) to the effect that even a quondam tenant is entitled to fixity of tenure. Dispossession had not taken place in these cases. For convenience of enjoyment among the lessees, the 9th defendant was in possession of an undivided half of the leasehold under Ext. D-9 executed in favour of defendants 13 and 14; and defendants 6 and 7 were in similar enjoyment of the other undivided half under defendants 10 and 15. It was in such circumstances that the plaintiff purchased the mortgage right from the 10th defendant under Ext. P-2. This could only be subject to the 6th defendant's tenancy right, which was under a co-owner of an undivided right. Whatever ultimately fractionates as share of the lessor co-sharer, to that the leasehold right must attach. In that sense the 6th defendant's leasehold would attach to C-1 property allotted to the plaintiff. We have also noticed earlier that the finding of the lower appellate court that the 6th defendant is entitled to fixity of tenure under Section 4-A of the Land Reforms Act was not specifically objected to before the learned Judge. The principle of the Full Bench ruling in Balakrishnan Nair v. Kunhikrishnan, 1977 Ker LT 180 : (AIR 1977 Ker 123) (FB) affords some support that despite such loss of possession as has occurred, the provisions of the Act should be projected back to the date of dispossession. The decision of our learned brother Poti J. in Moideen v. Aysa Bee (1972 Ker LT 939) supports the principle of making restitution to a tenant who had been dispossessed in execution proceedings. We are unable to accept the argument that Ext. P-13 would bar the claim to fixity of tenure.
13. There remains the last point of counsel for the appellant about the applicability of the doctrine of 'substituted security' -- as the learned Judge put it, so as to attach the leasehold right and fixity of tenure, not to the property actually held in possession by the 9th defendant since the date of Ext. P-1, but to the one ultimately allotted to the lessor, on partition. The learned Judge in para 15 of his judgment stated :
'The contention on behalf of the 6th defendant is that Ext. D 9 executed by the 9th defendant in favour of defendants 13 and 14 was for an undivided one half of the property, that for the other undivided half defendants 6 and 7 were paying rent to defendants 10 and 15, that the plaintiff's purchase of the mortgage right from defendant 10 was subject to the lease in their favour, that although defendants 6 and 7 were in possession of the eastern half, the leasehold right of defendant 6 would attach to the plots C-1 and C-2 allotted to the plaintiff on the principle of substituted securities, that the fact that the plaintiff has taken possession of plot C-1 from defendant 9 is immaterial and that the direction of the court below that the plaintiff would surrender plots C-1 and C-2 to defendant 6 is therefore right.''
Again, the learned Judge stated in paragraph 16:
'Despite the division or arrangement among the lessees, there has not been any partition of the reversion among the co-owners until the decree in this case. Under that decree the plaintiff who claims under defendant 10 has been allotted, inter alia, plot C-1. Even though that plot was with defendant 9, the leasehold right of defendant 6 is fastened to that plot, as he was holding under defendant 10 whose right is now vested in the plaintiff. That is the result of the operation of the principle of substituted securities. I accept the contention of defendant 6 on this point.'
Counsel for the appellant strongly contended that the doctrine of 'substituted security' has no application to leases and is a concept applicable only to mortgages. In that form, we think the statement involves a misconception. The position disclosed is that two lessees were inducted into possession by four lessors, each entitled to an undivided one-fourth share of the entire 88 acres of land. There was no partition of the revisionary right. That being so, on principle, the leasehold right must take effect on the property allotted finally on fractionation of the shares and the allotment of the same to the lessor-co-owners. It matters little whether the principle is labelled 'substituted security' or not. Logically, and on principle, the conclusion that the 6th defendant as the lessee from a co-owner of an undivided one-fourth share is entitled to fixity of tenure in respect of the property ultimately allotted to the lessor-plaintiff is correct.
14. Counsel for the respondent also contended that the principle of substituted security is not altogether alien even to leases and lessees. He cited the decision in Byjnath Lall v. Ramoodeen Chowdry, ((1874) 1 Ind App 106 at p. 117 (PC) and following). It was decided that a mortgage of an undivided share in land may be enforced against lands, which, under the revenue partition, have been allotted in lieu of such share, whether such lands be in the possession of the mortgagor or of one who has purchased his right, title and interest. The applicability at the doctrine of substituted security generally, to properties alienated by one of the coparceners or co-owners, when a partition takes place among them, fell to be considered by our learned brother Poti J. in Padmanabha Pillai v. P. Abraham (AIR 1971 Ker 154). It wee held that the doctrine would apply, irrespective of whether the right of a coparcener or co-owner is transferred by private sale or by Court auction purchase. When allotment has been made in partition, to such coparcener or co-owner, the alienee or the auction-purchaser, as the case may be, will be entitled to seek partition and also allotment at such partition, to himself, of so much of the properties as may fall to the share of the coparcener or the co-owner, as is required to make up the value of the property sold to the alienee or the auction-purchaser, as the case may be.
15. For the appellant, it was stressed that though the original lease (Ext. P-1) was of the undivided rights in the entire 88 acres, the same was given the go by by the conduct of the lessors and the lessees, as evidenced by Exts. D-8 and D-9. By Ext. D-8 dated 17-4-1952, as noticed earlier, the lessees agreed to hold the property in two separate halves, eastern and western. This was accepted by the lessors as evidenced by Ext. D-9 lease-deed dated 28-4-1952 and by acceptance of rent and issue of rent receipts, separately in respect of the different portions, Our attention was called to the discussion and finding regarding this aspect of the case in paragraphs 19 and 20 of the trial court's judgment, para. 5 of the lower appellate court's judgment, and para. 16 of the judgment of the learned Judge in Second Appeal. It was argued that the surrender of the C-1 plot on 7-12-1966 had to be viewed against this background. Even with these facts supplied or emphasised, the crucial point remains that the lessors' rights were undivided and the leasehold right of an undivided one-fourth share, could fasten only on the property ultimately allotted to the lessors on fractionation of their shares. Section 44 of the T. P. Act, relied on by counsel for the respondents is another pointer to the same conclusion.
16. The judgment of the learned Judge was right. We affirm the same and dismiss this appeal with costs.