Arumukham and another vs Velayudha Menon and another

P.T. Raman Nayar, J.—This revision petition by defendants 12 and 13 in the suit is against the dismissal of their application u/s 25(3) of the Malabar Tenancy (Amendment) Act, 1954 for an amendment of the decree for possession passed against them. Their claim is that they are entitled to fixity of tenure u/s 43 of the Malabar Tenancy Act, 1929 as that Act now stands. This provision was first introduced by the Malabar Tenancy (Amendment) Act, 1951 and the case of the petitioners is that, had the Malabar Tenancy Act, 1929 as amended by the amending Acts of 1951 and 1954 been in force at the time, no decree for possession would have been passed against them. The decree in question was passed on 4-7-1951 before the amending Act of 1951 came into force on 23-10-1951. It was a decree for the redemption of an usufructuary mortgage held by the 1st defendant, and for possession of the land mortgaged, as against the 1st defendant and others, like the present petitioners, holding portions of the land under the 1st defendant. There were the usual directions regarding the payment of the mortgage money and value of improvements and the apportionment of these sums between the several persons entitled to them. In E.P. 103 of 1952, the plaintiff sought to execute his decree for possession, but, on application by some of the defendants, execution was stayed u/s 55of the amending Act of 1951. It was on 8-4-1954, when execution stood so stayed, that defendants 12 and 13 came forward with their present application contending that the transactions embodied in the deeds, Exts. B 4, B 6 and B 7, by virtue of which they hold and cultivate their respective portions under the mortgagee--1st defendant--are really verumpattoms although styled as panayams in those deeds.

It is not disputed that if that be so, defendants 12 and 13 would now be entitled to the protection of section 43 of the current Act as against the plaintiff although they are not his tenants; but, at the time of the decree, they could not be granted this protection for the simple reason that this section was not then in force. That being so, it seems to us that all the requirements of section 25 (3) of the amending Act of 1954 are satisfied and that the court has to amend the decree if it finds that the transactions in question were really leases and not mortgages. This then was the only question before the court.

The court below however declined to go into this question and dismissed the application on two grounds, both of which seem to us unsupportable. The first is that a sub-tenant is not entitled to apply u/s 25 (3) of the amending Act of 1954, since that section refers only to a tenant and not to a subtenant. The order of the learned Munsiff throughout refers to defendants 12 and 13 as sub-mortgagees and we take it that what the learned Munsiff means is, as explained by learned counsel for the 1st respondent plaintiff, that assuming that defendants 12 and 13 are, as they claim to be, tenants under the mortgagee, 1st defendant, they are not tenants of the plaintiff and are therefore not entitled to apply u/s 25 (3) of the amending Act of 1954. We see nothing in that provision to support such a view. That section does not say that the applying tenant must be a tenant of the plaintiff in the suit--the section speaks only of "the tenant", and it is quite enough if the applying tenant is a tenant on the land, no matter under whom. It is not disputed that if defendants 12 and 13 are tenants under the mortgagee--1st defendant--they would come within the definition of "tenant" in the Act, and in the face of the clear language of section 43 of the current Act, it is not denied that they would be entitled to continue on the holding as against the plaintiff, notwithstanding that the rights of their landlord, the 1st defendant, have been extinguished by redemption. The very purpose of enacting section 25(3) of the amending Act of 1954 was to make new provisions like section 43 of the current Act retrospectively available to persons who had suffered decrees for possession before the new provisions came into force, and surely you are not to read into a Statute, words that are not there ("the tenant of the plaintiff" for "the tenant") for defeating its very object. Chennamangalath Manakkal Vasudevan Nambudripad Vs. Ambujakshi and Others, , which lays down that only a tenant and not a sub-tenant of the evicting landlord can take advantage of section 15(3) of what we might call the unamended Malabar Tenancy Act, 1929, the decision on which the lower court has based its view, and on which much reliance is placed by learned counsel for the 1st respondent plaintiff, seems to have little bearing on the question. "The tenant" of section 15(3) is the tenant against whom relief is claimed under section. 14(3), and section 14is in express terms confined to suits for eviction brought against a tenant by his landlord. Therefore, having regard to the definition of "tenant" in the Act, sections 14and 15can apply only to an immediate tenant of the suing landlord and not to a tenant of his tenant. But section 43 of the current Act extends the benefit of fixity of tenure, previously given only to tenants holding immediately under the suing landlord, to tenants holding under intermediaries, and it is profitless to argue that section 25 (3) of the amending Act of 1954, which is expressly designed for the purpose of giving the benefit of section 43 among other provisions introduced by the amending Acts of 1951 and 1954 to persons who had suffered decrees before these amending Acts came into force, cannot be availed of by the very persons for whose benefit section 43 has been enacted.

The second ground on which the court below based its order of dismissal is that, as laid down in Achuthan v Choyi (1957 K.L.J. 701), section 22of the current Act can be availed of only before and not after the passing of a decree. This overlooks the fact that a proceeding u/s 25 (3) of the amending Act of 1954 is a proceeding for reopening the suit and passing a new decree in place of the decree already passed. In such a case therefore, an investigation u/s 22 (1) would be, as recognised in the penultimate paragraph of the judgment in that very decision, an investigation before and not after the decree. We might also observe that a proceeding u/s 25(3) of the amending Act of 1954 does not necessarily imply an investigation u/s 22 (1) of the current Act, for, it is open to the tenant to show that, even on a construction of the deed under which he holds, he is a tenant and not a mortgagee.

In the written statements in the suit/defendants 12 and 13 had repeated the language of the deeds and referred to the transactions under which they hold as a panayam. It is urged that they are estopped by their pleadings from now contending otherwise. We do not think that this is a case where the principle of estoppel by pleadings applies. Whether the defendants were mortgagees or tenants made little difference at the time the written statements were filed and was not a question in issue in the suit. The defendants, it would appear, merely borrowed the phraseology of their deeds. It is well-settled that the nomenclature used in a document is not conclusive as to its character, and now by reason of section 22 of the current Act, it is open to a person to plead and prove by evidence aliunde that, contrary to its tenor, the document under which he holds though purporting to be a mortgage is in reality a lease. Section 43 of the current Act expressly permits additional pleadings and so it is clear that, for the purposes of that provision, parties cannot be estopped by the pleadings already on record What is said in the written statements is at best an admission which the party making it is "entitled to explain away if he can and seems to us to stand on no higher footing than the admissions implied in the deeds themselves. We allow the petition and remand the application in question to the court below for fresh disposal in the light of what we have said. We repeat that what the court has to decide is whether, having regard to the documents under which defendants 12 and 13 hold, and such additional pleadings and additional evidence as may be received u/s 25 (3) of the amending Act of 1954 and section 22 of the current Act, defendants 12 and 13 are cultivating tenants in respect of the land in their possession. Costs of this revision petition will abide the result.