C.K. Mohammed and Others vs Devaky Amma and Others

M.M. Pareed Pillay, C.J.—Plaintiff filed O.S. No. 46 of 1964 before the Sub Court, Ottapalam claiming partition. He, his younger brother (deceased Karunakara Menon) and their mother Parukutty Amma were the only members of the tavazhi when they separated from the main tarwad as per partition deed dated 18-8-1952. Sixth defendant claimed tenancy right in the property on the strength of Exts. B1 and B9. Contention of the 6th defendant that he has tenancy right in the property was found against by the trial court as well as the first appellate court. The only contention of the appellant (6th defendant) is that he is entitled to benefit u/s 7B of the Kerala Land Reforms Act (hereinafter referred to as the Act). It is his contention that he has obtained the property as per a registered lease deed prior to 11-4-1957 from mother and brother of the plaintiff and hence he is entitled to the benefit under the Section. It is further contended by him that while deciding his claim the courts below considered only the fact that the lease was incompetent as the karanavan (plaintiff) was not a party to it and did not consider the bona fides of his claim. Learned counsel for the plaintiff submitted that the courts below while considering the case set up by the 6th defendant under Sections 7B have really considered all aspects of the matter and hence as against the concurrent findings of the courts below no interference is warranted in the Second Appeal.

In the preliminary judgment dated 3-1-1967 the Sub Judge held that the amounts borrowed under Exts. B1 and B9 cannot be treated as debts charged on the plaintiffs share. The learned Judge also held that 6th defendant is not entitled to claim reservation of leasehold right in, the property. But it is held that he is entitled to a charge for the sum of Rs. 700/- advanced under Ext. B1 and the sum of Rs. 900/- advanced under Ext. B9 over the share of defendants 1 to 5. The suit was decreed for partition ignoring the transactions set up by the 6th defendant and subject to the reservations indicated in the judgment. In A.S. No. 164 of 1967 filed by the 6th defendant the lower appellate court confirmed the finding of the Sub Judge that Exts. B1 and B9 and the alleged oral entrustment of item 1 are invalid and not binding on the tavazhi. The learned District Judge further held that out of the consideration of Ext. B1 only Rs. 100/- is binding on the tavazhi. S.A. No. 289 of 1969 filed by the 6th defendant was dismissed with the observation that his claim u/s 7B of the Act has to be considered at the time of passing the final decree.

That matter was considered by the Sub Judge in I.A. No. 576 of 1971 by order dated 12-8-1981. The learned Sub Judge held that the 6th defendant is not entitled to claim deemed tenancy u/s 7B of the Act. That finding has been confirmed in A.S. No. 150 of 1981 by the District Judge. The District Judge held that in view of the cogent evidence in the case that the 6th defendant had taken the document exploiting the financial stringency experienced by the plaintiff''s tavazhi, there cannot be any doubt that it was a dishonest transaction to his knowledge and hence he cannot claim benefit u/s 7B of the Act.

In Kalivannan V. Narasimha Iyer (1974 KLT 286) Balakrishna Eradi, J., (as he then was) held that the basic assumption underlying the said section is the absence of any collusion between the grantor and the grantee and the existence of bona fides on the part of the grantee even though the expression "bona fide" has not been specifically employed in the said section. It was further observed that the intention of the Legislature is perfectly clear and the section has been introduced into the Act only with a view to grant protection to persons who may be in occupation of the lands belonging to others under documents purporting to be leases but which, for some technical or legal reasons, may ultimately be found to be lacking in validity but not in bonafides. A different view was adopted by a Division bench of this court in Pathu V. Mammad (1985 KLT 1059) wherein it was held that Section 7B does not require the person who claims the protection thereof to prove that he entered upon the land "bona fide". In a later decision the Supreme Court in K.M. Mathew and Another Vs. Hamsa Haji and Others, while considering the scope of Section 7 of the Kerala Land Reforms Act held that in Sections 7A to 7D of the Act bona fide is a common element to be proved in order to get the benefit of the sections. The Supreme Court held thus:

On a careful scrutiny of Ss. 7A to 7D, 8 and 9 it becomes abundantly clear that the intention of the legislature was to grant protection only to persons whose possession had a lawful origin in the sense that they had either bona fide believed the lands to be Government''s land of which they could later seek assignment or had taken the lands on lease from persons whom they bona fide believed to be competent to grant such leases or had come into possession with the intention of attorning to the lawful owners or on the basis of arrangements like varam etc. which were only in the nature of licences and fell short of a leasehold right. It was not within the contemplation of the legislature to confer the benefit of protection on persons who had wilfully trespassed upon lands belonging to others and whose occupation was unlawful in its origin. The expression in occupation" occurring in S. 7D must be construed as meaning "in lawful occupation".

In view of the above ruling the settled position is that a person claiming benefit u/s 7B has necessarily to satisfy his bona fides in the claim. On the basis of a registered deed purporting to be lease deed a person cannot claim benefit u/s 7B if he fails to establish bona fides of the transaction. Contention of the 6th defendant that Section 7B does not even remotely make mention of bona fide nature of occupation unlike Section 7 and so the occupation of the land whether it is bona fide or not does not matter cannot be countenanced.

It is pertinent to note that the 6th defendant did not adduce any evidence to establish his contention that he was in occupation of the property honestly believing himself to be a tenant in the final, decree proceedings. D.W.1''s evidence shows that he was aware of the fact of invalidity of the document in his favour as it was only executed by plaintiffs mother and brother, the karanavan (plaintiff) being not a party to it. Ext. B1 was admittedly prepared by D.W. 1. In the document the mother is shown as the karanavathi and manager. The evidence of D.W. 1 shows that he knew that plaintiff was the karanavan during the relevant time. It is also admitted by him that he did not consult the plaintiff at the time of execution of Ext. B1 even though plaintiff used to visit Ponnani. As both the courts below have held that the 6th defendant could not establish his claim u/s 7B of the Act and as both have considered the legal ingredients of the claim under the Section we find no merit in the second appeal.

The learned District Judge has rightly held that the 6th defendant was not in possession of the property honestly believing himself to be a tenant. We see no merit in the appeal. The Second Appeal is dismissed with no order as to costs.