1. The defendant in a suit for redemption of Ext. A1 transaction is the appellant in the second appeal. There were various contentions to resist the suit. One was that the transaction in truth and substance amounted to tenancy. The other was that the question whether Ext. A1 document dt. 5-10-1964 evidences a tenancy was within the exclusive jurisdiction of a Land Tribunal. And the third one related to the value of improvements.
2. The title of the plaintiff was upheld and the transaction was found to be a redeemable mortgage. The suit was therefore decreed. Value of improvements to the extent of Rs. 170 had been granted. Three contentions were raised before the Appellate Authority and they related to the nature of the document, about the propriety of not referring the question of tenancy to the Land Tribunal, and the finding on the value of improvements.
3. The last question is one of fact and no violation of any principle of law is established.
4. The first two are serious contentions. The lower appellate court, without entering any definite finding on nature of the document, was prepared to assume that Ext. A1 did create landlord-tenant relationship. Even that most favourable finding would not be of any help to the appellants; for, the transaction under Ext. A1 was one which was entered into after the coming into force of the Kerala Land Reforms Act the reason that Ext. A1 was a post 1-4- 1964 transaction. Section 74 of the Kerala Land Reforms Act, 1964 prohibited creation of future tenancies. That section would therefore stare in the face of Ext. A1. Therefore that transaction was denuded of legal validity. As there was no valid tenancy which could be taken cognisance under law, the question of reference to the Land Tribunal did not naturally arise. It was for this reason that the court below found no justifiable grievance for the appellants.
5. It was not as though the necessity to have a reference to the Tribunal, ordinarily and when a question of tenancy arises, had not been appreciated by the lower appellate court. That was appreciated in full measure. The ultimate position, taking the most favourable view for the defendant, was that the transaction was of no avail to the defendant, in view of the fact that it was after 1-4-1964. The view cannot be said to be vitiated by a substantial error of law.
6. Section 125(3) of the Kerala Land Reforms Act reads as follows :
'125(3). If in any suit or other proceeding any question regarding rights of a tenant or of a Kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refersuch question to the Land Tribunal havingjurisdiction over the area in which the land orpart thereof is situate together with the relevantrecords for the decision of that questiononly.'
7. Significance has to be attached to the word 'arises' regarding therein. Counsel for the appellants, who argued the case with considerable tenacity, referred to the decision of the case reported in Kesava Bhat v. Subraya Bhat, 1979 Ker LT 766 : (AIR 1980 Ker 40). A Full Bench decision of this Court, sketched the ambit of the term relating to the 'arising' of tenancy in the context of that section. Useful as the guidelines contained in the Full Bench decision are, I am of the view that they are not exhaustive. In the present case, the question of tenancy does not arise in the suit, for a different reason than the one indicated in 1979 Ker LT 766 : (AIR 1880 Ker 40) (FB) (supra).
8. The section opens with the words :
'If in any suit or other proceeding any question regarding rights of a tenant........ (including a question as to whether a person is a tenant or a kudikidappukaran) arises........'
For the section to get attracted, it is therefore essential that the question of tenancy should arise. It is not enough that theoretically the question of the construction of a document which is claimed to be a lease arises. Even if the document is construed as a lease, the further querry would be whether in the suit, any question relating to the rights of a tenant arises. Such a question would not arise here, for the reason that the transaction is of a prohibited category under Section 74 of the Act and cannot therefore confer the status of a tenant on the person claiming under the document. The view taken by the courts below is therefore in consonance with the true scope and ambit of the section. In that view of the matter, there is no scope for interference on that point.
9. Yet another contention urged by counsel related to a benefit conferred on him under the new provisions of Section 6C introduced under the Land Reforms Amendment Act, Act 27 of 1979. That amendment was effective from 7-7-1979. This contention, as such, has not been raised in the second appeal. It is, however, to be noted that the second appeal was filed on 3-1-1979. Counsel for the appellant submitted that being a pure question of law and one which became available to him only after the filing of the second appeal, he should be permitted to argue that question. That submission is justified in the circumstances. I would therefore proceed to consider that contention. Section 6C reads :
'6C. Certain lessees who have made substantial improvements, etc., to be deemed tenants -- Notwithstanding anything contained in Section 74, or in any contract, or in any judgment, decree or order of any court or other authority, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another person on the basis of a lease deed executed after the 1st day of April, 1964, shall be deemed to be a tenant if -
(a) he (including any member of his family) did not own or hold land in excess of four acres in extent on the date of execution of the lease deed; and
(b) he or any member of his family has made substantial improvements on the land.'
The section, no doubt, operates as an exception to the sweeping provisions contained in Section 74 of the Act. However, the exception is not conterminous with the main provision contained in Section 74. A wide range of transactions are roped in under Section 74. Any tenancy after 1-4-1964 is devoid of force under that section. However, when we come to Section 6C, only a limited category of the transactions coming within the generality of 'tenancy' contained in Section 74 are dealt with therein. In other words, Section 6C salvages only one class of transactions among the many types which would be within the mischief of Section 74. That is a limited class. That class is restricted to cases where the occupation of a person is on the basis of a lease-deed executed. It is not the same thing as a 'tenancy' in Section 74. Different considerations would have arisen if in Section 6C also the word 'tenancy' had been employed or at any rate the word 'lease' as distinguished from lease deed had been used. A 'deed' is a well-known legal term. A lease deed is equally familiar to the framers of the legislation.
10. A little bit of history of 'deeds and conveyancing practices' is contained in the introduction to the well-known work of Mogha, Indian Conveyancer, in the following terms :
'The form in which a conveyance is drafted is immaterial but as English forms have by long usage, obtained a sort of sanctity, the same may be retained with necessary alterations. In England deeds are drafted either as deeds poll or as indentures.
Deeds poll are those in which there is one party only and are so called because they were at one time polled or cut level at the top.
They are chiefly used for the purpose ofgranting powers of attorney and for exercisingpowers of appointment or setting out anarbitrator's award. They are drawn in firstperson.
Indentures are those deeds in which there are two or more parties. Indentures were so called as at one time they were indented or cut with an uneven edge at the top. In old times the practice was to make as many copies or parts, as they were called, of the instrument as there were parties to it, which parts taken together formed the deed, and to engross all of them on the same skin of parchment. Then a word, usually Cyrograpbum, was written between the two or more copies, and the parchment was cut in a jagged line through this word. The idea was that the difficulty of so cutting another piece of parchment that it would fit exactly into this cutting and writing constituted a safeguard against the fraudulent substitution of a different writing for one of the parts of the original. This practice of indenting deeds has ceased long ago and indentures are really now obsolete, but the practice of calling a deed executed by morethan one party an 'indenture' still continuesin England.'
See Introduction to Mogha's Indian Conveyancer, Eighth Edn. Pages 2 & 3). Section 107 of the Transfer of Property Act, 1882, details how leases are made. A lease from year to year or for any term exceeding one year, or reserving a yearly rent, is made only by a registered instrument. In respect of other leases, registration is optional. Section 117 exempts agricultural leases from the provisions of that chapter which includes Section 107. The resultant position is that an agricultural lease can be made orally. However, if such a lease is made in writing it would require registration under Section 17(1)(d) of the Registration Act. if the transaction comes within the first part of Section 107. In the light of the above aspects, due importance has to be attached to the word 'lease deed' as occurring in Section 6C of the Act. (See for the summary of the relevant provisions of Mulla on the Transfer of Property Act, 1882. pages 680, 681 and 774). What had been salvaged under the Section is only the occupation on the basis of lease deeds even if such lease deeds happen to be after 1-4-1964.
When a provision by way of exemption is enacted, that should be given a strict interpretation. Particularly so, when in enacting Section 6C, the legislature has not chosen to adopt or employ the same phraseology as contained in Section 74 of the Act. The document in the present case is only a mortgage deed and not a lease deed. It is styled as an 'otti deed', the mortgage amount is Rs. 400/- and the period is three years. The trial court analysed the document; adverted to its nomenclature; about the absence of any provision for making improvements; and felt that the property was only transferred as security and as such amounting to a redeemable mortgage. It is therefore clear that the deed in question is only a mortgage deed and not a lease deed. The question is not whether the transaction amounts to 'tenancy' particularly one of the types brought under the deeming provisions of the Act. The occupation under Ext. A1 is not under a lease deed That occupation would not therefore be protected under Section 6C. I would therefore negative the novel contention also.
11. The second appeal is accordingly dismissed, but without any order as to costs.