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Damodara Menon Vs. Variath and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 237 of 1970
Judge
Reported inAIR1973Ker132
ActsKerala Land Reforms Act, 1964 - Sections 3(1)
AppellantDamodara Menon
RespondentVariath and anr.
Appellant Advocate P.K. Kesavan Nair,; R. Damodaran,; Namboodiripad and
Respondent Advocate M. Abraham, Adv.
DispositionRevision dismissed
Excerpt:
- - 1. a short, but rather interesting and important, question arises for decision in this revision filed under section 103 of the land reforms act. 4. the learned counsel appearing for the respondent submits that in a case like this, where there is limited interest or life interest coupled with a specific right to lease out the property, the position is different and it cannot be considered to be a case of lease by a person having life interest simpliciter......interest alone is entitled to apply for fixation of lair rent in respect of the holding.2. the land tribunal without going into the merit of the case and without recording a finding on the pleadings relating to the genuineness of the lease set up by the respondents herein (the petitioner and the legal representative of the 3rd respondent before the land tribunal), held that inasmuch as the party arrayed as the landlord had only a limited interest, the question of fixation of fair rent did not arise. the land tribunal, for its conclusion, placed reliance on clause (vi) of sub-section (1) of section 3 of act 1 of 1964 as amended by act 35 of 1969, which reads as follows:--'3. exemptions.-- (1) nothing in this chapter shall apply to- ..... (vi) tenancies in respect of land or of.....
Judgment:
ORDER

K. Bhaskaran, J.

1. A short, but rather interesting and important, question arises for decision in this revision filed under Section 103 of the Land Reforms Act. The question is whether a lessee inducted into possession of the property by a person having life interest alone is entitled to apply for fixation of lair rent in respect of the holding.

2. The Land Tribunal without going into the merit of the case and without recording a finding on the pleadings relating to the genuineness of the lease set up by the respondents herein (the petitioner and the legal representative of the 3rd respondent before the Land Tribunal), held that inasmuch as the party arrayed as the landlord had only a limited interest, the question of fixation of fair rent did not arise. The Land Tribunal, for its conclusion, placed reliance on clause (vi) of sub-section (1) of Section 3 of Act 1 of 1964 as amended by Act 35 of 1969, which reads as follows:--

'3. Exemptions.-- (1) Nothing in this Chapter shall apply to-

..... (vi) tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both:'

The Appellate Authority, however, reversed the finding of the Land Tribunal with respect to the maintainability of the petition and remanded the matter for considering the other questions relevant for the purpose of fixation of fair rent. The Appellate Authority took the view that the family karar Ext. R-l under which the 1st respondent before the Land Tribunal obtained the property for her maintenance specifically provides for the enjoyment of the property in any form, including by leasing out the same.

3. The learned counsel for the revision petitioner contends that this view taken by the Appellate Authority is unwarranted by the provisions contained in Clause (vi) of Sub-section (1) of Section 3 of the Act. According to him, it is immaterial whether or not the lease by the person having life interest is with the consent of other persons interested in the property. His argument is that if the lease is by a person who is having only a life interest, the exemption provision contained in Section 3 comes into operation, and the petitioner before the Land Tribunal is precluded from applying for fixation of fair rent, as nothing contained in Chapter II which deals with fixation of fair rent is applicable to tenancies created by a person having only life interest or limited interest in the property leased.

4. The learned counsel appearing for the respondent submits that in a case like this, where there is limited interest or life interest coupled with a specific right to lease out the property, the position is different and it cannot be considered to be a case of lease by a person having life interest simpliciter. The learned counsel goes to the extent of saying that the right to grant lease in respect of the property conferred on the maintenance allottee, in the instant case, is in the nature of a right in that behalf derived under a power of attorney given to her on behalf of the other persons interested in the property. Clause (vi) of Sub-section (1) of Section 3, according to the learned counsel, relates only to a case where the document, under which the maintenance allottee derives right, does not confer special right to the allottee to lease out the property. It is also pointed out that Ext. R-l not only confers right to lease out the property but also does not indicate the maximum period for or up to which the lease could operate. I think there is considerable force in this contention. However, it is not necessary to examine the correctness of this position inasmuch as this revision could be disposed of on other grounds with which I am dealing presently.

5. Clause (vi) of Sub-section (1) of Section 3 of the parent Act has been amended by Act 35 of 1969 substituting the proviso thereto in order to make the provisions of Chapter II applicable to tenancies falling under Clauses (v) and (vi) of the sub-section, except for the purpose of Sections 53 to 72-B of the Act, so long as the life interest or other limited interest, as the case may be, subsists. In the light of this amendment, the respondent herein had a right to have the fair rent fixed, because, in terms of Section 2 (57), he was a tenant, and was entitled to fixity of tenure in accordance with Section 13. If that be so, nothing precluded the lessee under a person having life interest from applying for fixation of fair rent under Section 31 of the Act.

6. The learned counsel appearing for the revision petitioner points out that the maintenance allottee who leased the property to the respondent herein died some time in the year 1965, during the pendency of the proceedings, and, therefore, the fair rent applied for cannot be fixed. I find it difficult to agree with this proposition. Though the maintenance allottee died, she is being represented by the legal representatives. Therefore, the petition for fixation of fair rent could be proceeded with.

7. It is then contended by thelearned counsel that inasmuch as the proviso to Section 3 (1) (vi) as it originally stood before amendment by Act 35 of 1969 did not contain provision for making the proviso applicable for the purpose of Section 31 of the Act, under which fixation of fair rent is applied for, application for fair rent, filed before the coming into force of Act 35 of 1969, cannot be proceeded with. Here also, I find no merit in the contention, as under the transitory provisions contained in Sub-sections (3) and (5) of Section 108 of Act 35 of 1969, the petition pending before the Land Tribunal or the Appellate Authority at the time when the Act came into force was to be disposed of in accordance with the provisions contained in the amended Act.

8. A further submission made by the learned counsel is that it may be made clear that the fixation of fair rent will be applicable only for the period till the death of the maintenance allottee, as the proviso to Clause (vi) of Sub-section (1) of Section 3 provides that the tenancy right is confined to the lifetime of the life interest-holder or the maintenance allottee. While recording this contention raised by the learned counsel, I do not think it necessary to go into this question, as, while fixing the fair rent, it is not necessary for the Land Tribunal to record a finding on this aspect of the matter. How long and upto what period the order fixing fair rent under Section 31 of the Act will remain in force is no concern of the Land Tribunal.

9. I find no reason to interfere with the judgment of the Appellate Authority, and therefore this revision is dismissed, but without costs.


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