George Vadakkel, J.
1. Assan-kunji is the father of the 1'st plaintiff-1st respondent. On 29-9-1944, when the 1st plaintiff was still a minor, he executed Ext. Al document. It is, as mentioned therein, a sale deed. He is also the executee thereunder, but, is described therein, as the guardian of his daughter, the 1st plaintiff. Later, on 29-2-1956 Assankunji executed Ext. A2 possessory mortgage deed in favour of the 1st defendant, a cooly labourer, and put him in possession of Ext. Al property thereunder. This he did stating that the mortgaged property is his. The same year the 1st defendant put up a hut thereon and since then he is residing in that hut with his family. First defendant leased out this property to his wife, the 2nd defendant, also a cooly labourer, as per Ext. B2 lease deed of 12-11-1960. Claiming title under Ext. Al and contending that the mortgage and lease transactions are void 1st plaintiff and her husband, the 2nd plaintiff, filed the suit for recovery of the suit property on 9-8-1965. The learned Munsiff held that the mortgage and the lease are void. However, he found that the defendants (defendants 3 onwards are the children of defendants 1 and 2) have no other house to reside and no other land to construct a homestead. He, therefore, applied the proviso (then in force) to Section 2 (25) of the Kerala Land Reforms Act, 1963, Act 1 of 1964 (for short, the K.L.R. Act) and decreed the suit on 29-1-1972 in respect of 10 cents out of 20 cents of the suit property; and directed the parties to apply for the issue of a commission to divide the plaint property demarcating the defendants' kudikidappu having an extent of 10 cents where the hut is standing. The plaintiffs appealed. The lower appellate Court allowed the appeal and decreed the suit in toto. Though by the time the lower appellate Court decided the appeal on 5-12-1975, the proviso to Section 2 (25) of the Act had been deleted from and Explanation II-A to Section 2 (25) had been introduced into the K.L.R. Act, that Court, unaware of that iact, held that the Proviso does not apply since the mort-gage, and consequently, the lease are void. Defendants have come up in second appeal.
2. Perhaps, it is possible to contend that Ext. Al cannot operate as a conveyance in so far as it has been executed by Assankunji in his own favour, though in different capacities. 'The mere fact that a man has two or more capacities does not give his power to enter into a legal transaction with himself. Double capacity does not connote double personality. For instance, at common law a man could not sue himself, or contract with himself, or convey property to himself; and it made no difference that he was acting on each side in a different capacity. Sal-mond on Jurisprudence, 12th Edn. pp. 64-65. If this be so, this case would fall squarely under Explanation IV to Section 2 (25) for then Ext. A2 mortgage would be a competent mortgage executed by Assankunji, the owner; and, the suit would have to be dismissed as incompetent, for, then, the 1st plaintiff would derive no title to the suit property under Ext. Al. However, no case appears to have been set up on behalf of the defendants in this form before either of the lower courts, nor was such a case in that fashion advanced before us, though the defendants seem to have a case that Ext. Al is a pocket-instrument and therefore Assankunji continued to be the owner of the suit property despite the execution of Ext. Al document. We therefore do not propose to probe into this aspect any further.
3. The main arguments advanced before us were central on the score and ambit of the fiction contained in Explanation II-A to Section 2 (25) whereunder a person, who on 16-8-1968 was in occupation of any land and the dwelling house thereon and continued to be in such occupation till 1-1-1970, is to be deemed to be a kudikidappukaran provided he does not come under the proviso to that explanation. The reference to the Full Bench is in view of the conflict between Achuthan v. Narayani Amma, (1980 Ker LT 160): (AIR 1980 NOC 90) and Moidenkutty v. Gopalan, (1980 Ker LT 468), two Division Bench decisions construing Explanation 11-A mentioned above. So we will deal with that point hereinafter.
4. It is by now generally accepted that prior to legislations made to ameliorate the conditions of kudikidappukaran, a kudikidappukaran had no interest in the land on which his homestead stands, and his only right was to the materials of the superstructure that is his homestead which he has constructed or to the value thereof as compensation in cases where the land owner evicts him without allowing him to remove the said materials; and that he has his kudikidappu or homestead on another's land mostly because he holds no land on which he can have his homestead. At this time only one who erects a homestead, ordinarily a hutment or shack, on another's land, and not one who was permitted to occupy a hut constructed by the land owner, was recognised as a kudikidappukaran. Towards the end of the first-half of this century there appears to have been indiscriminate evicition of kudikidappukars, both in Cochin and Travancore, where kudikidappu was a normal feature, thereby making 'the housing problem extremely acute' as stated in the preamble to the very first legislation relating to kudikidappukar, Proclamation XVIII of 1122 of H. H. the Maharaja of Cochin issue ed on 1-6-1947. Travancore followed suit by enacting on 19-3-1949 the Travancore Prevention of Eviction Act, 1124. This as slated therein was because it was expedient to prevent arbitrary eviction of kudikidappukar and obviously, for the reason that such eviction created an accute housing problem, as in Cochin. Suffice to notice, at this stage, that these legislations were made, not to create ana define the mutual rights and obligations of the landowner and the kudikidappukaran. but to solve the human problem of housing which, by the arbitrary and indiscriminate eviction of landless hut-ment dwellers, had become a very serious problem.
5. The Cochin Verampattamdars Act, 1118 (1943) defines 'kudikidappukaran' as a person who has been permitted to have the use and occupation of a portion of a property for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given and 'kudiyirippu' as the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and the easement attached thereto: Cochin Proclamation XVIII of 1122 adopts the above definition of kudikidappukaran for the purpose of that Proclamation. This definition of kudikidappukaran did not emphasise the requirement that he should be a person who has no land on which he can erect a homestead. The Travancore Act stressed this requirement by denning him as one 'who has no homestead or land of his own to erect a homestead and has been permitted by an owner of land to have the use and occupation of a portion of the land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given;' and 'kudiyirippu' as 'the site so given together with the house, hut or shed thereon which is used as a place of residence by the kudikidappukaran with the permission of the owner.'
6. On the formation of the Travan-core-Cochin State, that State enacted the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955. Thereunder 'kudikidappukaran' and 'kudiyirippu' are defined exactly as in the Travancore Prevention of Eviction Act, 1124.
7. We may here with advantage advert to Section 4 (2) in the Travancore Prevention of Eviction Act, 1124 and to Section 4 (2) in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955 both of which are identically worded and is as follows:--
'(2) Every kudikidappukaran who is at the date of commencement of this Act in occupation of a Kudiyirippu to which this Act applies shall be deemed to be in occupation of such Kudiyirippu with the permission of the owner.'
Both these Statutes defined 'kudikidappukaran as one 'who......has been pcmitted by an owner of land......'; and 'kudiyirippu' as 'the site so given.........' If the words 'kudikidappukaran' and 'kudiyirippu' in Section 4 (2) are to be assigned the same meaning ascribed to each of them by the definition, and if the expression 'has been permitted' in the definition is to be understood as permission continuing without being withdrawn up to the commencement of the respective Act, then, we are afraid, the result would be there would exist no 'kudikidappukars' at the commencement of the concerned statute. For human conduct is such that when such a legislation is on the anvil, and before it is enacted and brought into force, permission would have been withdrawn, so that there will not be any 'continuity of permission' up to the commencement of the Act or in other words permission would not be extant up to the coming into force of the Statute. The object of Section 4 (2) in these two Acts, therefore, can be said to be only to make it clear that a kudikidappukaran still in occupation of his kudiyirippu, that is to say, one to whom permission has been given at any time by the owner of the land to have the use and occupation of a portion thereof for the purpose of erecting a homestead, has erected a homestead thereon and is in occupation thereof at the commencement of the Act is also a Kudikidappukaran even if the owner of the ]and has withdrawn the permission so given and has demanded of him to vacate therefrom at any time prior to the commencement of the Act.
8. However, protection from unfettered power of eviction was given under the above-said legislations only to those kudikidappukar who, with the permission of the landholder, had built their own hutments on the former's lands and not to those who were allowed to occupy huts constructed by the landholders. By the Kerala Stay of Eviction Proceedings Ordinance 1957 and the Kerala Stay of Eviction Proceedings Act 1957 the protection was extended to all kudikidappukars, those who were permitted to occupy huts built by the landlords. The above-said Act was amended by the Kerala Stay of Eviction Proceedings Act, 1958. What is material so far as the present discussion is concerned, is that to Clause (3) in Section 2 defining 'kudikidappukaran' as substituted by the Amending Act two explanations were added of which the 2nd explains what a hut is and the 1st is as follows:--
'Explanation I. Any person who was in occupation of a kudikidappu on the commencement of the Kerala Stay of Eviction Proceedings Ordinance 1957, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.'
9. The above Explanation makes ' it clear that the object in view of the legislature was what we said earlier in para 7 by providing that the permission deemed thereunder is 'permission as required under this clause', that is to say, permission as required by Section 2; clause (3) of the Kerala Stay of Eviction Proceedings Act, 1957 as amended by the Kerala Stay of Eviction Proceedings (Amendment) Act, 1958. The said clause speaks of the kudikidappukaran as a person who has no homestead or land of his own to erect a homestead and, (i) who has been permitted...... to have the use and occupation of a portion of the land...... or (ii) ......who has been permitted......to occupy the hut......... What the Explanation says is to deem permission as aforesaid, or in other words, to deem initial permission. This explanation does not use the word 'kudikidappukaran' but refers to 'any person in occupation of a kudikidappu at the commencement of the Kerala Stay of Eviction Proceedings Act, 1957' (11-4-1957). The object here also appears to be to clarify that a kudikidappukaran whose occupation of his kudikidappu was permissive to start with is still a kudikidappukaran within the meaning of the word kudikidappukaran even though the permission given has been withdrawn.
10. Explanation II to Section 2 (20) denning Kudikidappukaran in the Kerala Agrarian Relations Act, 1960 repealed by Section 132 of the K.L.R. Act reads:--
'Explanation II. Any person who was in occupation of a kudikidappu on the llth day of April, 1957, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.'
(The Kerala Stay of Eviction Proceedings Ordinance came into force on 11-4-1957). Explanation II to Section 2 (25) of the K. L. R. Act, before the same was re-cast by Section 2 of the K.L.R. (Amendment) Act, 1969, was identically worded as Explanation II in the 1960 Act, which we have extracted above.
11. The same (what we said in para 9) could, perhaps, be said of Explanation II to Section 2 (20) of the Kerala Agrarian Relations Act, 1960 and Explanation II to Section 2 (25) of the Kerala Land Reforms Act, 1963 as originally enacted, despite the fact that what is required thereunder to avail of the explanation is 'occupation of the kudikidappu' as on 11-4-1957 and thereafter also, without break up to the commencement of the respective enactment. However, it is debatable as to why. then, the legislature, at variance with the provisions in the earlier Acts, insisted upon occupation during the period 11-4-1957 up to the commencement of the Act, instead of simply saying 'any person who was in occupation on 11-4-1957' or 'any person who was in occupation at the commencement of the Act' of a kudikidappu shall be deemed to be in occupation of such kudikidappu with permission as required under this clause, if the legislative intent was only to clarify that a kudikidappukaran in occupation of his kudikidappu after withdrawal of the permission is also within the ambit of the word 'kudikidappukaran'. The object appears to be somewhat different from that expressed by the provisions in the earlier statutes, but in view of the use of the expressions 'in occupation of a kudikidappu' and 'in occupation of such kudikidappu' therein, and in the background of the corresponding provisions in the earlier statutes which were only clarifi-catory, the legislative intent has not been clearly expressed,
12. However this Court in Gopalan v. Chellamma, (1966 Ker LT 673) construed the said fiction contained in Explanation II to Section 2 (25) of the K.L.R. Act as follows:--
'Explanation II appended to the definition enacts that the requisite permission shall be deemed, without proof, to exist when occupation of 'kudikidappu' on the 11th day of April, 1957 and the continuance of such occupation till the commencement of the Act are proved. Kudikidappu, by its very definition in the same clause (quoted above), refers to the land and the homestead permitted to be erected or the hut permitted to be occupied, In order to claim the benefit of Explanation II it has necessarily to be shown that the original occupation was of a kudikidappu. The effect of Explanation II is that a person, who has no land or homestead of his own and who was permitted to put up a homestead on a portion of the land in lawful possession of another or to occupy a hut thereon and has been in occupation of such homestead or hut from the llth day of April, 1957, to the date of commencement of the Act, will not lose the benefit of such permission even though it was subsequently withdrawn and even though he was ousted from the land after the commencement of the Act.'
It is explained later on in that decision that 'the fictional permission relates only to the later occupation on date of commencement of the Act and not to the old occupation had on llth day of April, 1957. It was necessary, as ruled therein, that one should prove and establish that he was in occupation of the land or the hut as the case may be on 11-4-1957 with the requisite permission; and then, he need only prove the factum of continued occupation therefrom till date of commencement of the Act in order to be a 'kudikidappukaran'. We are afraid that this Court in that decision omitted to notice the expression qualifying the word 'permission' in Explanation II, namely, '...... permission as required under this clause' 'permission' required under the main clause is, as earlier seen, initial permission to occupy the land or the hut as the case may be as mentioned in the main clause, Section 2 (25), and we are bidden by the Explanation to suppose that the occupation is with such permission as required thereunder, despite the fact that there was no such initial permission or that no proof is forthcoming of such initial permission.
13. The term 'kudikidappu' in the expression 'any person who was in occupation of a kudikidappu on the llth day of April, 1957' in the Explanation appears to have been strongly relied on by the learned Judge in Gopalan v. Chellamma (19S6 Ker LT 673) to hold that only on proof of permissive occupation on 11-4-1957 could one be said to be a kudikidappukaran on the basis of the Explanation, The reasoning is: Kudikidappu under the definition is 'the land and the homestead or the hut so permitted to be erected or occupied......'; 'so permitted' means permitted as stated in the earlier portion of that definition in respect of the word kudikidappukaran; there the verb used is the present perfect tense viz., 'has been permitted'; therefore the permission given must be continuing in effect till the relevant date.'
14. The present perfect tense: 'has been permitted' signifies a hypothesis without regard to time, past or present. Such usage is familiar in legal parlance. See the State of Bombay v. Vishnu Ramachandra, (AIR 1961 SC 3071, Kunhammad Keyi v. Premalatha (1962 Ker LT 366) and the recent decision Anujan Nambudiripad v. Official Liquidator (1978 Ker LT 865): (1979 Tax LR 1640) to which one of us was a party. A passage extracted in the last mentioned case from the judgment of Knight Bruce L. J. In re Storie's University Gift and in re the Charitable Trusts Acts, 1853 and 1855 (1860) 30 LJ Ch 193 (198) lucidly brings out the distinction between the different usages of the present perfect tense, and we propose to quote it here even at the risk of repetition:--
'Now, I have no doubt it may well be said of a boy who has left a school, that he has been three years at the school if he has been there for three years at any time during the period of his education; but I do not think it can be well said of a boy that he has been three years at a school at a given time unless he had been for the three years immediately preceding that time.' . The expression 'has been permitted' in the definition, therefore, means, 'has been permitted at any time' and is not used with reference to any given point of time up to which such permission is extant. Thus the basic promise upon which the reasoning is built up (as above stated) in Gopalan v. Chellamma (1966 Ker LT 673) is, we venture to say with ultmost respect, wrong.
15. Velu Filial J. in S. A. 558 of 1961 had in fact ruled on the lines stated by us in the preceding paragraph prior to the decision in Gopalan v. Chellamma (1986 Ker LT 673) but this decision appears to have been not cited therein. This is what Velu Pillai J. said:--
'It was also argued by learned counsel, that-under the definition of 'kudikidappu-karan' in Section 2, Clause (25) of Act 1 of 1964, unless the permission originally granted, to the defendants or their predecessors, to have the use and occupation of the portion of the land for erecting the homestead, was renewed or who in force, these rights cannot be recognized. The definition follows the definition in previous enactments. Learned counsel is wrong in his submission, that the permission admittedly granted at the inception required to be renewed from time to time or at the time Act 1 of 3964 came into force. The permission granted originally was for the use and occupation of the land for the purpo.se of erecting a homestead, and once such permission was granted, rights of kudlkidappu accrued. These rights cannot be taken away subsequently. Per-mission once granted is irrevocable. It is not open to the plaintiffs, as contended tor them, to revoke or withdraw the permission, by the institution of the suit or by other means. The kudikidappu rights have therefore to be upheld. No other point was urged in the appeal or in the cross-objection. They are both dismissed with costs.'
16. In the light of the above discus sion, we are of the view, with respect that it cannot be taken that Gopalan v, Chellamma (1966 Ker LT 673) construes Explanation II to S. 2 (25) of the K.L.R, Act correctly.
17. The K.L.R. Act underwent comprehensive amendments as per the Kerala Land Reforms (Amendment) Act 1969 (hereinafter, the Amending Act) the bill whereof was introduced in the Legis-. lalure on 16-8-1968. One of the Amendments was substitution of Section 2 (25) of the K.L.R. Act. What is material so far as this case is concerned is that Explanation II discussed in the earlier paragraphs herein was transposed as a proviso which runs as follows:--
'Provided that a person who, on the l6th August, 1968, was in occupation of any land and the homestead thereon, or in occupation of a hut belonging to any other person, and who continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be in occupation of such land and homestead or hut, as the case may be, with permission as required under this clause'. The Legislature omitted the word 'kudikidappu' that occurred in Explanation II, And shifted the period of occupation required from that mentioned as 11-4-195'' to the date of commencement of the K.L.R. Act to that specified as 16-8-1968 to the date of commencement of the Amending Act.
18. Of the above Proviso this Court in Mariam v. Xavier, (1971 Ker LT 709) said that 'the initial leave to occupy is obligatory to make the dweller a kudikidap-pukaran' and that 'the proviso operates only at the next stage', thereby holding that despite the fiction created by the proviso that a person who was in occupation on 16-8-1968 and continued to be in occupation at the commencement of the Amending Act of the land and the homestead thereon or of a hut belonging to any other person, as the case may be, 'shall be deemed to be in occupation of such land and homestead, or the hut, as the case may be, with permission as required under this clause' (emphasis given), or in other words, shall be deemed to be in such occupation with the permission requisite under that clause, Section 2 (25), which is initial permission, initial permission has to be established. The reasons stated
'Viewed against the history and the constitutional back-drop of the kudikidappu provision in the tenancy legislation of the land calculated to stabilise agrarian labour settled on the land, to start with by the owner's consent, the legislative project only sanctions their continuance against the owner's will rather than freeze all occupation even such as is secured by criminal trespass. The law loves neither him who grabs land or buildings; for, that would be humanism gone haywire, nor him who bulldozes humble dwellers out of their shaks, for that would be a negation of the wholesome humanism behind the statute.'
19. Legislature once again stepped in to remove any doubt about its intention 'the accent' of which as stated in Mariam v. Xavier was 'on the need for permission' as is (as said there) evident from the fact 'that the legislature does not deem them to be Kudikidappukars as such but only to possess the permission required under this clause'. This was done by the Kerala Land Reforms (Amendment) Act, 1972. The Legislature omitted the proviso to Section 2 (25) retrospectively from 1-1-1970 and introduced, also retrospectively, Explanation II-A to that sub-section. The material portion of Explanation II-A reads:--
'Notwithstanding any judgment, decree or order of any court, a person, who, on the 16th day of August, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or be longing to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran.'
20. Hereunder, the period of occupation necessary to attract the fiction is the same as under the proviso, i.e. from 16-8-1968 to 1-1-1970 on which date the Amending Act of 1969 came into force. The 'deeming' now is that he who satisfies the requirement mentioned in Explanation II-A 'is a kudikidappukaran'. The requirement necessary to avail of this deeming provision is the same as under the proviso, though the said requirement is now comprehensively expressed as 'occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person)' so as to take in both clauses of kudikidappukars mentioned in Sub-clauses (a) and (b) of Sub-section (25) of Section 2 of the K. L. R. Act.
21. Before we proceed to examine Explanation II-A to Section 2 (25) introduced into the K.L.R. Act by the Kerala Land Reforms (Amending) Act, 1972, it is necessary to refer to three more decisions of this Court construing the proviso to Section 2 (25) which was deleted retrospectively by the above-said Amending Act. The first of the.se is the Division Bench decision in George v. Sivadasan, (1972 Ker LT 107): (AIR 1972 Ker 113). It may be recalled that the Proviso omitted the word 'kudikidappu' which expression paved the way for the view expressed in Gopalan's case and instead used the terminology: 'was in occupation of any land and the homestead thereon, or in occupation of a hut belonging to any other person'. Therefore, it was held in George v. Sivadasan that 'a person claiming the benefit of the proviso and to prove that he was in occupation of the land and the homestead thereon or he was in occupation of the hut' on the relevant date, 16-8-1968, and that applying the definition of 'hut' and 'homestead' in Explanation II to Section 2 (25) as amended by the Amending Act of 1969, it is necessary for him to further prove that 'the homestead which is occupied by him was erected by him on a land given to him for that purpose or that his occupation of the hut was given to him'. Presumably it was in view of this decision that Explanation II-A changed the language as: 'was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-in-terest or belonging to any other person), thereby omitting the expressions 'homestead' and 'hut'.
22. The next case we have in mind is the Full Bench decision in Thankappan Asari v. Ammakutty Bai (1973 Ker LT 443). The Full Bench adopted the same reasoning as that is stated in George v. Sivadasan (AIR 1972 Ker 113). The Full Bench set out one more reason in support of that view, namely, that the word 'occupation' in the Proviso is to be understood as 'lawful occupation' and not the occupation of a trespasser. According to the Full Bench this is so because any other construction would be contrary to 'commonly recognised concepts of what is right, just and ethical' and not (in harmony with the existing law'. This in our view is, with great respect, an irrelevant consideration so far as construction of a statutory fiction is concerned, as will be seen in due course hereinaftex-. But for the fact that this Full Bench decision can have only persuasive effect on us in respect of construction of Explanation II-A involved in the case on hand and cannot have any authoritative conclusiveness so far as the construction of Explanation II-A is concerned, we would have referred the question of construction of the proviso to a larger Bench. Moreover, the proviso itself is not in force now.
23. The third case which needs to be noticed is the decision in Peter v Itty-cheria (1971 Ker LT 481) : (AIR 1971' Ker 276) referred to in Thankappan Asari'd case. Therein the defendants-appellants fought the case which was one for recovery of the suit property, right up to this Court, setting up a case of benami and in the alternative, of adverse possession. They had not advanced any claim for kudikidappu rights, in the lower courts. This Court noticed that the lower appellate Court disposed of their appeal only in 1967 after the K.L.R. Act came into force. In this Court, a 3rd alternative case was advanced relying on the Proviso and this contention was dismissed on the ground that having set up a plea of adverse possession (which is destructive of permissive occupation), they cannot be allowed 'to turn round and to say that they must be deemed to be in possession with permission'. However, there are certain observations therein to the effect that if the occupation on the relevant date is proved to be adverse to the person whose permission is to be deemed then he would not be a kudikidappn-' karan. While as regards the first proposition (blowing hot and cold) we express no definite opinion, about the second, we wish respectfully to point out that the proviso is not a rule of rebuttable presumption but a fiction, and that, a statutory fiction and, therefore, a rule of irre-buttable assumption or supposition, to which aspect we will advert to in due course hereinafter, as already stated.
24. Now we take up Explanation II-A to Section 2 (25) of the K.L.R. Act as amended by the K.L.R. (Amending) Act, 1972 in the background of the legislative history discussed above, the sequence of which, very briefly stated is : When the words 'in occupation of a kudikidappu' in Explanation II to Section 2 (25) in the K.L.R. Act as originally enacted was held by this Court to be suggestive of the need for the person claiming kudikidappu right thereunder to prove permissive occupation as on the relevant date (11-4-1957 thereunder), the legislature omitted the word 'kudikidappu', and resorted to the terminology of 'in occupation of any land and the homestead thereon, or in occupation of a hut......' in the proviso to Section 2 (25) as amended by the Amending Act, 1969. When this Court pointed out that still the emphasis of the fiction is on the permissive aspect of occupation and not on the status of the person as kudikidappukaran, and that the words 'homestead' and 'hut' are indicative of the requirement that permissive occupation as on the relevant date (16-8-1968) has to be established, the legislature reacted by omitting the words 'homestead' and 'hut' from the fiction and laying stress on the status as kudikidappukaran by enacting Explanation II-A to Section 2 (25) of the K.L. R. Act as per the K.L.R. (Amending) Act, 1972. How do we understand the said explanation according to its plain grammatical meaning or with some reservation is the point for consideration.
25. About the legislative intent of Explanation II-A there can arise no doubt, and that is, to introduce a statutory fiction that unrelated to any proof of permission, one who comes within the scope of Explanation II-A, and does not fall within the ambit of the proviso thereto, is a kudikidappukaran. The only question is whether this legislative intent is reflected in the language used in Explanation II-A. We may here usefully quote the following principle of statutory construction stated by Lord Diplock in Courts and Legislators p. 10 as stated in Cross on Statutory Interpretation 1976, p. 93: --
'Lord Macmillan said that the legislature had 'plainly missed fire' (1) To this Lord Diplock has since retorted extra-judicially that if, as in this case, the courts can identify the target of Parliamentary legislation, 'their proper function is to see that it is hit;' not merely to record that it has been missed.'
We are also aware of the other principle governing statutory construction, namely, that for the purpose of giving effect to the legislative intent the courts shall not introduce into the statutory provision 'words or phrases which might succeed where the draftsman failed' as said by Lord Simonds in the Ayreshire Insurance Case (1946) 1 All ER 637 (at p. 641) itself.
26. Two things have to be emphasised in this connection and they are; (i) the fiction is in the definition clause and (ii) it is a statutory fiction and not a legal fiction. Legal fictions were resorted to in English law to conceal the fact that a rule of law has undergone alteration in that its letter remaining unchanged, its operation is modified. They are suppositions which are known to be untrue, hut which are not allowed to be denied, in order that some difficulty may be overcome, and substantial justice secured. Legal fictions are, therefore, controlled by the maxims; 'fictio legis non operatur damnum vel injuriam' (a legal fiction does not work loss or injustice) and 'In fictione juris temper aequitas existit (equity is the life of a legal fiction). These maxims have no application to statutory fictions. This distinction has been pointed out by a Full Bench of this Court in Roswari Amma v. Meenakshi Amma (1963 Ker LT 9201, M. SectionMenon, C. J. speaking for the Court therein said that 'as far as the effect of statutory fictions are concerned the proper approach is the approach of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbary Borough Council (1952 AC 109) and quoted the following passage therefrom, a passage approvingly quoted by the Supreme Court in M. K. Venketa-chalam v. Bombay Dying and . (AIR 1'958 SC 875) and Commissioner of Income-tax, Delhi v. Teja Singh (AIR 1959 SC 352) (at p. 355):--
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
27. Therefore, we will construe the above statutory fiction in the definition clause without being concerned (as stated by Viscount Simon in Emperor v. Benoari (AIR 1945 PC 48) 'with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used' and applying the rules of construction stated earlier.
28. In the backdrop of the above discussion Explanation II-A to Section 2 (25) of the K.L.R. Act has to be understood in its plain grammatical meaning without any reservation. Being a statutory fiction, it has to be applied, without any inquiry as to whether its application would result in any injustice or injury (as commonly understood) in any given case. Any inquiry thereinto is shut out by the Statute and is not called for. The legislature having chosen to bid so, it is not for the Court to sit in judgment over the wisdom thereof or its justness. The only matter which this Court can examine is its legislative competency and constitutional validity. On this point it needs only to be mentioned that the K.L.R. (Amendment) Act, 1974 (1972?) by which Explanation II-A was introduced into the K.L.R. Act has been included in the Ninth Schedule as per the Constitution (34th Amendment Act, 1974 and therefore, Explanation II-A has the protection of Article 31B of the Constitution.
29. Under the impression that the K.L.R. (Amendment) Act, 1974 is not in the Ninth Schedule Govindan Nair C. J. in Chinnan v. Gopinathan (1975 Ker LT 50) on behalf of a Division Bench said that in order to save Explanation II-A, the same has to be read down confining its scope to persons in lawful, that is, permissive occupation and not extending its availability to trespassers. However, the same learned Chief Justice in Mohammed Mytheen v. Sreedharan (1976 Ker LT 919) (FB) realizing the mistake, left open the question of construction of Explanation II-A, wherefore Chinnan's case is no more authority for the proposition stated therein. Yet, another Division Bench, without noticing the Full Bench decision in the Mohammad Mytheen case, followed Chinnan's case, the decision in Sankaran v. Kumaran (1977 Ker LT 275) without any independent discussion. In view of the Full Bench decision in Mohammad Mytheen's case, the decision in Sankaran v. Kumaran cannot be said to have construed Explanation II-A correctly.
30. In Achuthan v. Narayani Amma, (1980 Ker LT 160): (AIR 1980 NOC 90) two of us (Poti J. as he then was and Janaki Amma J.) held that the effect of Explanation II-A is to dispense with proof of permissive occupation, either in support or rebuttal thereof, and that even in the absence of such proof and without any enquiry as regards the original occupation, a person who satisfies the condition mentioned therein and does not fall within the ambit of the proviso thereto has to be deemed to be a kudikidappu-karan.
31. In Moideenkutty v. Gopalan (1980 Ker LT 468) another Division Bench took a view contrary to that taken in Achu-than's case. This has led to the reference of this case to the Full Bench as stated earlier herein. This decision proceeds on the basis that Section 4 (2) of the T. C. Act, 1955, Explanation II to Section 2 (20) of the Agrarian Relations Act, 1961, Explanation II to Section 2 (25) of the K.L.R. Act, and the proviso thereto as inserted by the Amending Act, 1969 are intended to protect a kudikidappukaran who began occupation of his kudikidappu under permission by providing for the statutory continuance of the permission initially given till the commencement of each of the above mentioned statutes, and considers the question, has the scope of this legal fiction, which right from 1955 been only to cover a stage subsequent to the initial permission been altered or widened to cover a case of initial permission also by Act 17 of 1972 as is sought to be contended by the counsel for the occupant?' This question is answered in the negative holding that unless initial permission for occupation of the dwelling house is established Explanation II-A will not be attracted. On the promise that the scope of the fiction in the previous enactments is as aforesaid, to make good the continuity of initial permission (which might have been withdrawn) up to the commencement of the concerned statute, and in that context, this decision, construes the word 'occupation' in Explanation II-A as 'lawful occupation' though as stated therein the expression 'in occupation' dehors from the context may suggest an occupation even without initial permission. According to this decision the change in language in Explanation II-A (omission of the words, 'homestead' and 'hut' and use of the expression 'dwelling house' etc.) is of no consequence because it conveys the same idea as 'homestead' and 'hut'.
32. We have hereinbefore in detail discussed the theory of 'continuity of permission given' up to the relevant date mentioned in each of the statutes, a theory based on the expression 'has been permitted', and found that that theory cannot hold water either with reference to the legislative history or with reference to the use of the present perfect tense: 'has been permitted', an expression used in all the statutes with which we are here concerned, unrelated and without reference to any given point of time. We have also earlier herein held that the legislative intent as revealed by Explanation II to Section 2 (20) of the Agrarian Relations Act, 1961, Explanation II to Section 2 (25) of the K. L. R. Act as originally enacted, the proviso thereto introduced by the K.L.R. (Amending) Act, 1969 and Explanation II-A now under consideration, is not clarificatory, that is to say, not to make it clear that one who began the occupation of the land or the hut, as the case may be, under permission is a kudikidappukaran even after such permission has been withdrawn, which appears to have been the object of Section 4 (2) in the Travancore Act, 1124, Section 4 (2) in the T. C. Act, 1955 and of Explanation I to Section 2 (3) of the Kerala Stay of Eviction Proceeding Act, 1957 as amended by the Kerala Stay of Eviction Proceedings (Amendment) Act, 1958. Beginning with Explanation II to Section 2 (20) in the Agrarian Relations Act, 1961 the object of the legislature was to introduce a statutory fiction to the effect that a person who was in occupation of a dwelling house and its site (of the nature and having the characteristics of a kudikidappu, though not a kudikidappu in the sense that word is defined in the respective Act) during a period of time extending over, in the first instance, from 11-4-1957 to the commencement of Act 4 of 1961, then, from 11-4-1957 to the date of commencement of Act l of 1964 and then, from 16-8-1968 to 1-1-1970, the date of commencement of the Amending Act of 1969, is a kudikidappukaran. However the language employed was not happy, and to a certain extent, perhaps, dubious. So viewed the expression 'in occupation' in Explanation II-A means only occupation of any kind, lawful or unlawful, permissive or otherwise. As already stated the Statute does not allow an enquiry into the nature and character of the occupation. If in order to give effect to the legislative object no word can be added to a legislation, certainly no word can be added to it to defeat the object thereof. On the other hand, the aim shall be to see that the legislature achieves its object, of course, without doing violence to the language employed by it
33, We have already adverted to the change in the language employed in Explanation II-A. The proviso to Explanation II-A is as follows:--
'Provided that no such person shall be deemed to be a kudikidappukaran--
(a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors in interest, if--
(i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or
(ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or
(b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, either an owner or as tenant, on which he could erect a building;'
Compare the above proviso with Explanation II to Section 2 (25) which reads:--
'For the purposes of this clause,--
(a) 'hut' means any dwelling house constructed by a person other than the person permitted to occupy it--
(i) at a cost, at the time of construction. not exceeding seven hundred and fifty rupees; or
(ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79; and
(b) 'homestead' means, unless the context otherwise requires, any dwelling house erected by the person permitted 'to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79.'
34. It will be seen that the words 'hut' and 'homestead' have been deliberately omitted and instead somewhat circumlocutory language has been employed where the legislature could have expressed the same idea by simply retaining the words 'hut' and 'homestead'. This as already said earlier herein was in view of the decision of this Court in George v. Sivadasan (1972 Ker LT 107): (AIR 1972 Ker 113) and Thankuppan Asari v. Am-mukutty Bai (1973 Ker LT 443). We are unable to subscribe to the view expressed in Moideenkutty v. Gopalan (1930 Ker LT 468) that this substitution of circumlocutory expression in place of two simple words amounts only to an innocuous redrafting, for we should assume that the legislature does not indulge in roundabout-speaking with no purpose.
35. It is contended that the function of an Explanation is to clear any ambiguity in the main section. The argument is that, therefore, the expression 'in occupation' in the Explanation has to be read as 'in lawful occupation'. Elaborating the point it is submitted that unless occupation began with permission, the occupation will not be lawful. We are not impressed with the above argument. Firstly, there is no ambiguity in Section 2 (25) that needs to be cleared by any statutory device. As already seen, a person who has been permitted at any time to have the use and occupation of a portion of the land for the purpose of erecting a homestead or who has been permitted at any time to occupy a hut belonging to another is a kudikidappukaran for the purposes of the Act even after such permission has been withdrawn and he has been even ousted thereafter in violation of any of the Statutes prohibiting his eviction. Secondly, if the Explanation is read in the manner suggested, it will only create confusion. We will read it as suggested: '...... a person, who, on 16-8-1968 was in lawful occupation (i.e. in occupation which to start with the permissive) of any land and the dwelling house thereon...... and continued to be in such lawful occupation till 1-1-1970, shall be deemed to be a kudikidappukaran.' While under the main clause a person, who began occupation under permission but has been ousted in violation of the protection afforded by the several statutes, would be a kudikidappukaran, even if, (at the time the question arises as to whether he is or is not a kudikidappukaran) he is not in actual occupation. Explanation II-A read in the manner suggested by the learned counsel for the respondent says that a person who began his occupation under permission would be deemed to be a kudikidappukaran if he is in occupation during 16-8-1968 to 1-1-1970. In other words, to avail of the main provision one need only prove initial permission to occupy but to get the benefit of Explanation II-A one has to establish, besides initial permission, continued occupation over the period from 16-8-1968 to 1-1-1970. If initial permission can be and is proved, why should one have resort to the Explanation? Thirdly, an Explanation may widen the scope of the main section: Hiralal Ratan Lal v. State of U. P., (1973) 1 SCC 216 (225): (AIR 1973 SC 1034).
36. If on the other hand, Explanation II-A is treated as an addendum to Section 2 (25), that is, some thing said by way of widening the definition, the same would serve a purpose and there would arise no confusion. So construed, he, who falls within the ambit of the main clause i.e., Section 2 (25) (here, he need not necessarily be in actual occupation) is a kudikidappukaran; and, he, who comes under the Explanation and can avail of the fiction created by it (here, he need not prove initial permissive occupation but only actual occupation) is also a kudikidappukaran. There is no repugnancy at all between the two provisions because Section 2 (25) deals with one situation where one would be a kudikidappukaran and the Explanation deals with an entirely different situation where one would be a kudikidappukaran. Or, if, Section2 (25) is treated as the main provision, then, Explanation II-A is an exception thereto. II neither of the two ways of reconciling Section2 (25) and Explanation II-A are held to be feasible, then the result would be calamitous, for, then by the application of the rule 'later laws abrogate prior contrary laws', Explanation II-A will prevail over Section2 (25) as stated in Maxwell on the Interpretation of Statutes, 12th Edn. pp. 190-91 with reference to a proviso: 'If a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that 'it speaks the last intention of the makers'. We do not think that it is so here, for, both the provisions can stand side by side, without one contradicting the other, so these two provisions have different situations in view.
37. In the light of the above discussion, with utmost respect, we are constrained to disagree with the construction placed on Explanation II-A in the Moi-deenkutty case, 1980 Ker LT 468. We are agreed that for the application of Explanation II-A to Section 2 (25) of the K.L.R. Act it is not necessary to enquire into the genesis and character of the occupation of the dwelling house.
38. We do not propose to deal with the doctrine of lis pendens vis-a-vis the non obstante clause in the Explanation in this case, nor do we express any definite opinion as regards the views expressed thereon in Mohammed Mytheen's case (1976 Ker LT 919) (FB) on which views the decision therein is rested, since no arguments have been advanced before us on that score by either side.
39. In the result we allow this appeal. We set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. The parties shall suffer their costs throughout.