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Ammu Brahmani and ors. Vs. Gopalan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 753 of 1975
Judge
Reported inAIR1979Ker130
ActsKerala Land Reforms Act, 1964 - Sections 3(1); Kerala Land Reforms (Amendment) Act, 1969 - Sections 32, 108 and 108(3)
AppellantAmmu Brahmani and ors.
RespondentGopalan and ors.
Appellant Advocate S.C. Anantha Krishna Iyer and; M. Balakrishnan, Advs.
Respondent Advocate M.P.R. Nair,; P.F. Francis and; M.K. Chandramohan Das
DispositionAppeal dismissed
Cases ReferredEappen Mathen v. Narayana Iyer
Excerpt:
.....and sections 32 and 108 of kerala land reforms (amendment) act, 1969 - retrospective operation of amended provisions - act of 1969 carried specific provision which required retrospective operation - section 108 (3) embodied intent of retrospective operation to pending proceedings - matter to be disposed of in accordance with provisions of act of 1969 as amended. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a motor cycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed of by the owner of..........act itself. 16. the learned counsel for the appellant also put forward a plea that in applying the amended provision of section 3 (iv) of the act to the facts of this case, in computing the period of five years for filing a suit, the courts below had wholly overlooked the provision of section 32 of the act which barred the filing of the suit during the pendency of the application for the fixation of fair rent it was pointed out that the courts below ought to have held that in computing the period of 5 years, the period during which the filling of a suit was barred under section 32 of the act, should have been excluded; the plaintiff has filed the suit within 5 years mentioned in the amended provision even assuming that they are applicable, and hence the courts ought to have decreed the.....
Judgment:

Chandrasekhara Menon, J.

1. The appellants are the plaintiffs in the suit from which this second appeal arises. The properties scheduled to the plaint in the suit belonged to the family of the husband of first plaintiff. There was an earlier suit for partition of the assets of this family -- O. S. 134/1114 (M. E.) of the District Court, Trichur. During the pendency of the suit a Receiver appointed by the Court was in management of the properties involved in the litigation. The properties, now the subject matter of the present suit had been leased out by the Receiver to one Velappan on an aggregate rent of 57 paras of paddy and one bunch of bananas per year. During the pendency of the partition suit, first plaintiff's husband had died and the plaintiffs in the present action had been impleaded as his legal heirs in the partition suit. By the decree in the partition suit, which was finally confirmed in appeal on 27-10-1958, the properties had been set apart to these persons.

2. After the death of the original lessee from the Receiver, Velappan, the first respondent herein, the defendant in the suit came into possession of the properties holding the same under the same lease arrangement. Re filed on 22-5-1961 an application for fixation of fair rent before the Land Tribunal, Trichur as O. A. 3566 of 1961. This application filed under the Kerala Agrarian Relation Act was subsequently renumbered as O. A. 1767/64, after coming into force of the Kerala Land Reforms Act (hereinafter referred to as the Act), The appellants here resisted the proceedings before the Land Tribunal contending that the applicant being a tenant from a Receiver appointed by Court, he is not entitled to get fixation of fair rent in the nature of the exemption granted in respect of such class of tenants under Section (1)(iv) of the Act. This contention was accepted by the Land Tribunal and the fair rent application was dismissed. Thereafter, the present suit, of which the appeal arises, was filed by the plaintiffs for recovery of possession of properties from the defendant with past and future mesne profits.

3. The defendant took up the plea that his lease was even prior to the partition suit and he is entitled to fixity of tenure and other rights under the Act. It was also contended that he had directly attorned as a lessee to the plaintiffs who were hence disentitled to deny his right as a lessee.

4. Both the Courts below have held against the plaintiffs in respect of their claim for recovery of possession. It was held that though the defendant could only claim to be a lessee Inducted by the Court receiver, under the proviso to Section 3(1)(iv) of the Act, the exemption claim would not be applicable and hence the defendant is entitled to claim fixity of tenure. It was also held by the lower Courts that defendant's liability for rent will only be in accordance with Section 75 of the Act.

5. The only question that arises in the appeal is whether the defendant could escape from the exemption clause in Section 3(1)(iv) of the Act which exempts tenancies of land or of buildings or of both created by the Administrator-General or the Official Trustee or an Official Receiver or officer appointed by a Court under the provisions of any law or by the Court of Wards or by any person holding under or deriving title from any of the officers or the Court aforesaid in respect of the provisions regarding tenancies provided under Chapter II of the Act. The relevant portion of the clause is Sub-clause (b) of the second proviso to Section 3(1)(iv) of the Act which reads:

'Provided further that the provisions of this clause shall not apply or shall cease to apply to

XX XX XX XX (b) any tenancy created by an officer appointed by a court under the provisions of any law, where the persons declared or found by the Court to be entitled to possess the land or any person acting on his behalf has not instituted or does not institute legal proceedings to put him in possession of such land within a period of five years from the date on which such declaration or finding became final'.

This proviso with the relevant sub-clause referred to above had been inserted in the Act only by the Amending Act 35 of 1969. Before that leases by Court Receivers were totally exempt as regards the provisions in Chapter II of the Act.

6. In view of the Importance of the question, the Division Bench before which the case bad come up on reference by a learned Judge of this Court, considered that the matter should be decided by a Full Bench of this Court. That is how the second appeal has come before us.

7. It was argued on behalf of the appellants that the courts below have not properly understood the real nature of a suit for partition and the effect of the decree in a partition suit among co-sharers of the property. It was urged that as a co-sharer the plaintiff has already got the right to possession and the said right is not declared for the first time by the partition suit. According to the appellant Sub-clause (b) of the second proviso to Section 3(iv) is not applicable to such a case and the bar imposed by the proviso to avail of the exemption will not operate in this Instance.

8. We are not able to agree with this contention. Though a co-sharer is entitled to joint possession of the family land with other members of the family before partition, it is the partition decree which entitles him to get separate and exclusive possession of the land allotted to him therein. In the decree, in a way the Court declares or finds that he is entitled to such separate possession as different from the original joint possession. Until partition nobody can claim that he is entitled to be in possession over any specific portion or items of the joint properties and it is the partition decree which gives the respective allottees the right to be in possession of the item or items allotted to them. There is no reason why the provision concerned should not apply to such cases where separate possession is allowed by the partition decree.

9. It was strongly contended that the Courts below erred in assuming that the amendments to the Act as such by Act 35 of 1969 will apply to proceedings which were pending at the time when they were introduced in the original statute so as to deprive the suitor of the rights which he admittedly had on the date of suit. The provision as amended cannot have any retrospective operation so as to affect vested rights.

10. No doubt it b a well-settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended. The learned counsel for the appellants referred us in this connection to the decision of the Supreme Court in State of Kerala v. Thomas (1976 Ker LT 566): (AIR 1976 SC 2363) where the decision of this court in 1973 Ker LT 701: (AIR 1974 Ker 28) had been affirmed. The question that arose for consideration in that case was whether voluntary transfer of lands which are kayal padasekharams of Kuttanad area between September 15, 1963 and January 1, 1970 was valid or not. Section 84 is the provision in the Act which deals with the validity of voluntary transfers. It reads thus:

'84. Certain voluntary transfers to be null and void.-- (1) Notwithstanding anything contained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the gazette, otherwise than -

(i) by way of partition; or

(ii) .....................

(iii) In favour of a person who was a tenant of the holding before the 27th July, 1960 and continued to be so till the date of transfer; or

(iv) xx xx xx

by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area or otherwise than by way of gift in favour of his son or daughter or the son or daughter of his pre-deceased son or daughter, by any person owning or holding land in excess of the ceiling area shall be deemed to be transfers calculated to defeat the provisions of this Act and shall be invalid:

Provided that, without prejudice to any other right of the parties to any such transfer, when any purchase price is payable under Section 56 or any compensation is payable (under Section 72-H or Section 88) for any land covered by the said transfer, it shall be competent for the Land Tribunal to award to the transferee, out of the purchase price or compensation amount In respect of such land, such sum as the land tribunal may consider just and proper.

(2) Notwithstanding anything contained in any law for the time being in force, all voluntary transfers effected by any person (other than a family or any member thereof or by an adult unmarried person) owning or holding, land in excess of the ceiling area after the 1st July, 1969, otherwise than -

(i) by way of partition; or

(ii) in favour of a person who was a tenant of the holding before the 27th July, 1960 and continued to be so till the date of transfer;

(iii) xx xx xx

shall be deemed to be transfers calculated to defeat the provision of this Act and shall be invalid:

Provided that without prejudice to any other right of the parties to any such transfer when any purchase price is payable under Section 56 or any compensation is payable under Section 72H or Section 88 for any land covered by the said transfer it shall be competent for the Land Tribunal to award to the transferee, out of the purchase price or compensation amount in respect of such land such sum as the Land Tribunal may consider just and proper.

(3) For the removal of doubts, it is hereby clarified that the expression 'ceiling area' in Sub-sections (1) and (2) means the ceiling area specified in Subsection (1) of Section 82 as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969).'

11. Clause 1 of Sub-section (1) of Section 81 as it originally stood specifically provided that provisions of Chapter III, which deals with restriction on ownership and possession of land in excess of ceiling area and disposal of excess lands tin which Chapter Section 84 comes), 'shall not apply to bayal padasekharams of Kuttanad area specified in Schedule IV, so long as such padasekharams are used for the cultivation of paddy or such other crops as the government may by the notification in the gazette direct'. It was not in controversy in that case that the kayal lands concerned therein are of the category mentioned in Clause (1) of Sub-section (1) of Section 81. They were, therefore, exempt from the restriction on ownership prescribed by various sections of Chapter III including Section 84. The Supreme Court pointed out in that case that even though by virtue of Section 84 of the Act all voluntary transfers effected after September 15, 1963 (date of publication of the Kerala Land Reforms Bill, 1963, in the gazette) were invalid, such invalidity will not attach to kayal padasekharams of Kuttanad area, because of Section 81 (1) (1). Though this exemption was withdrawn by Section 65 Act 35 of 1969 that amendment was not brought into force until January 1, 1970. Hence the Supreme Court points out, the voluntary transfers made between September 15, 1963 and 15th January, 1970 were valid. The Supreme Court in that case rejected the contention of the Advocate-General of the State that Section 65 should be given retrospective effect from April 1, 1964 as Sections 82 and 84 of the Act were brought into force on that day pointing out that Section 65 of Act 35 of 1969 was neither curative nor merely declaratory and a statute is not to be read retrospectively except of necessity.

12. Not only are we bound by that decision but there could also be no two opinions on the well-settled principles of law stated therein. The difficulty is in applying the same to the facts of the present case. In regard to pending proceedings in courts etc, the amending Act --Act 35 of 1969 -- carries a specific provision which requires the retrospective operation of the provisions of the Act or of the Act as amended. This is embodied in Section 108 (3) of the Amending Act --Act 35 of 1969 -- which reads as follows (substituted as per Section 22(b) of the Kerala Land Reforms Amendment Act, 1971 (Act 25 of 1971):

'(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.'

13. It is apparent that we will have to dispose of the case in accordance with the provisions of the Act as amended by Act 35 of 1969. Here is a case where the Receiver's tenant -- the defendant -- is claiming a benefit or right conferred by the principal Act as amended.

14. In this connection the learned counsel for the appellants referred us to a Division Bench ruling of this court in Parameswaran Nambudiri v. Kalyani (1974 Ker LT 67) to which one of us (the learned Chief Justice) was a party. The facts of that case were as follows:

In execution of the decree in O.S. 623 of 1954 of the Munsiff's court, Wadakkancherry, as modified by the decree in A.S. 55 of 1956, District Court, Trichur the rights of the 1st respondent in the revision petition before this court as a tenant were sold and purchased by the revision petitioner, who was the decree-holder. The property was delivered over to the purchaser. The 1st respondent filed an application for restoration of possession under Section 6 of Act 9 of 1967. The same was filed on 27-1-1968. Act 9 of 1967 was a temporary enactment, which remained in force till 31-12-1969. Section 1, Clause (4) of that Act enacted that on the expiry of the Act, the provisions of Section 4 of the Interpretation and General Clauses Act 1125, shall apply as if the Act had been repealed by an Act of Kerala State Legislature Act 35 of 1969 was passed into law with effect from 1-1-1970. The same contained a provision. Section 13B, substantially on the same terms as Section 6 of Act 9 of 1967, with a proviso superadded. The proviso said that an application for restoration of possession by the dispossessed tenant which was contemplated also by Section 6 of Act 9 of 1967 would not lie against a bona fide purchaser for value after the date of dispossession and before the date of publication of the Land Reforms Amendment Bill, 1968. It was contended by the revision petitioner in that case that after the delivery of possession in execution of the court-auction sale and purchase, he had entered into an agreement with a stranger, received a part of the consideration and put the stranger in possession on 31-12-1967. The courts below held that the respondent's application for restoration was liable to be dealt with under the provisions of Act 9 of 1967 unaffected by the provisions of the subsequent Act 35 of 1968. This was challenged by the revision petitioner. According to him the application should have been dealt with under the provisions of the said later Act of 1969, and In particular, of the proviso to Section 13B of that Act. This was based upon Section 108(3) referred to above. Before its amendment by Act 25 of 1971, the section was differently worded. The scope of the pre-amendment section fell to be considered by a Full Bench of this court in K. P. Muhammed v. Maya Devi (1971 Ker LT 284), (AIR 1971 Ker 290). There it was pointed out that Clause (3) of Section 108 applies only in respect of any matter, arising under and provided for by the principal Act which underlined expression, on the express provisions of Section 1 of Act 35 at 1969, meant, Act 1 of 1964. The Division Bench referring to that decision lightly said there was nothing in Act 1 of 1964 which conferred upon a tenant in circumstances such as what had been disclosed in the case, the right of restoration. The court further added nor is the position improved by the amendment of Section 108(3) introduced since the Full Bench decision; because, there was no application pending at the commencement of the section in which a right or remedy conferred by the provisions of the principal Act as amended by Act 25 of 1971, was pending adjudication. We feel that in assuming that Section 108(3) of Act 35 of 1969 as amended refers to 'a right or remedy conferred by the provisions of the principal Act as amended by Act 25 of 1971', a mistake was committed by the Division Bench. What has to be considered was whether the right or remedy conferred by the provisions of the principal Act has amended by Act 35 of 1969 was pending adjudication. Section 108(3) as it now stands is a substitution of the previous provision by the amending Act 25 of 1971. Section 108(3) as amended says 'the principal Act as amended by this Act,' Section 108 being a provision of Act 35 of 1969 the expression could only mean the principal Act as amended by Act 35 of 1969.

15. Even otherwise we are not able to understand how the decision in Parameswaran Nambudiri's case (1974 Ker LT 67) would be of any help to the appellants, because in this case the benefit or right that is claimed by the defendant is something that is conferred by the provisions of the principal Act itself.

16. The learned counsel for the appellant also put forward a plea that in applying the amended provision of Section 3 (iv) of the Act to the facts of this case, in computing the period of five years for filing a suit, the courts below had wholly overlooked the provision of Section 32 of the Act which barred the filing of the suit during the pendency of the application for the fixation of fair rent It was pointed out that the courts below ought to have held that in computing the period of 5 years, the period during which the filling of a suit was barred under Section 32 of the Act, should have been excluded; the plaintiff has filed the suit within 5 years mentioned in the amended provision even assuming that they are applicable, and hence the courts ought to have decreed the suit. This argument Is based On a mistaken assumption. Nowhere in the Act there is any provision which requires such period to be excluded in computing the five years. It might be noted that in spite of the Kerala Stay of Eviction Proceedings Act, 1967 and the Kerala Agrarian Relations Act the plaintiffs could have filed the suit for eviction. Under those Acts or even under the Act (Kerala Land Reforms Act, 1963) before the amendment in 1969, a lease by a Receiver is not a lease under the ordinary sense. The 'lessee' under a court Receiver is not a tenant as such. The law on the matter has been discussed in detail in Jacob v. Subramania Iyer 1960 Ker LT 68; (AIR 1960 Ker 312), Summing up the principles Mr. Justice Velu Pillai speaking for the Bench states (at p. 214):

'The position may now be summed up. A court or receiver taking possession of property in suit does not thereby derive any title to it, much less any interest in it, not even a right of possession, except for administering or managing or preserving it for the benefit of the party rightfully entitled to it; if so, there is no interest to transfer or to convey. In administering the property, a court cannot act directly, but has perforce to function through the agency of other; in this respect unlike the court, a receiver can, if he so intends or if the circumstances warrant, act by himself, but in the generality of cases he may find it necessary or expedient not to do so, but only through others. To us, it seems inconceivable, that the legislature had intended, by enacting a provision like Section 4 of the Act, to interfere with and thereby paralyse the administration of the properties committed to the court, unless there are very strong grounds to believe, that this was intended. The reasons which might conceivably have induced the legislature to curtail or suspend a landlord's right of eviction, do not appear to us to have any application, to that of a court or its officer, who is in no sense a landlord but who merely preserves the property for the benefit of the party who may be found entitled to it. Confronted with this, the learned counsel for the petitioner had to contend, that the so-called 'lease' subsists only during the continuance, and must come to an end upon the termination of the receivership relying on the observations of the Tranvancore-Cochin High Court in Eappen Mathen v. Narayana Iyer, (AIR 1953 Trav. Co 268) that lease by a mortgagee will be determined upon the redemption of the mortgage by the mortgagor. We are not called upon to make a pronouncement on this, but must state, that we are by no means certain, as the learned counsel appeared to be, that once the provisions applicable to a lease are extended to transactions of the character before us, there can be a half-way house in that process, apart from clear legislative provisions.'

Therefore, nothing prevented the plaintiffs from taking possession of the property immediately after the final decree. In the partition suit.

17. In the above view, the decisions of the courts below are correct. We dismise the second appeal, but in the circumstances of the case without costs.


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