Kamala Shedthi vs N. Pakeeran and Others

M. M. Pareed Pillay J.

Revision petitioner is B party No. 2 in S. M. proceedings No. 28 of 1981 of the Land Tribunal No. I. Kasargod. The Land Tribunal upheld the contention of A party (1st respondent) that he has tenancy right with respect to the land in question. Revision petitioner filed A. A. 2402 of 1982 before the Appellate Authority (Land Reforms) Kasargod. The appeal was dismissed by the Appellate Authority. Main contention of the revision petitioner is that the lease was granted by a nissanthathi kavaru who does not have full rights in the property and therefore the authorities went wrong in holding that the first respondent is entitled to purchase the property u/s 72B of the Kerala Land Reforms Act. The Land Tribunal as well as the Appellate Authority held that Section 3 (I) (vi) of the Act does not apply to a tenancy created by a nissanthathi kavaru as defined under the Madras Aliasanthana Act 1949 and therefore the lease is valid. ''Contention of the revision petitioner is that both the authorities below did not consider the second proviso to Section 3(1)(vi) of the Act and hence greviously erred in granting the purchase certificate to the first respondent.

Section 3 (1)(vi) of the Act provides that tenancies in respect of lands or of buildings or of both created by persons having only life interest of other limited interest in the lands or in the buildings or in both will not be entitled to fixity of tenure or other benefits under the Act. First proviso to Section 3(1)(vi) reads:

Provided that the provisions of this clause shall not apply to a tenancy created by a nissanthathi kavaru as defined in the Madras

Aliasanthana Act, 1949," in respect of lands or of buildings or of both over which the nissanthathi kavaru has only a life interest.

Second proviso reads:

Provided further that the provisions of this Chapter other than sections 53 to 72 S shall apply to tenancies falling under clause (v) and (vi) so long as the mortgage, or, as the case may be the life interest or other limited interest subsists.

Counsel for the revision petitioner submitted that in view of the second proviso it is apparent that a lessee under a nissanthathi kavaru cannot claim benefits under sections 52 to 72 S of the Act and at best he can only continue as a lessee under the nissanthathi kavaru. First respondent''s counsel submitted that such a rigid interpretation cannot be given to the second proviso in view of the express recitals in the first proviso, which makes it abundantly clear that the exemptions as envisaged u/s 3(1) (vi) shall not apply to a lease created by a nissanthathi kavaru.

It is common case that the lease has been created by a nissanthathi kavaru. The question to be considered is whether the second proviso completely annihilates the first proviso. A proviso is nothing but an exception to the enacting clause. Its object is to cut down or qualify something which has already been stated in the enacting clause. It must always be the duty of the Court to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. If a proviso is capable of a wider connotation and is also capable of a narrower connotation, and if the narrower connotation brings it within the purview of the section then the Court must prefer the narrower connotation rather than the wider connotation of the two possible interpretations. The Court should prefer the interpretation Which brings it within the purview of the Section. The Court is not justified in construing a proviso to enlage the scope of the enactment when it can be fairly and properly construed without attributing it that effect.

If two views are possible, the one which fits with the purport and object of the statute will have to be taken. The object of the Act as seen from the Preamble is to enact a comprehensive legislation relating to the land reforms in the State of Kerala. The Act for the first time gave the tenants fixity of tenure and several other benefits. The various provisions under Chapter II of the Act enable a tenant to fixity of tenure in respect of his holding and it also allows him to purchase the property by paying 12 times the fair rent if it is paid in a lump or 16 times fair rent if it is paid in instalments. Having thus given wide benefits to the tenants, certain tenancies are exempted. Tenancy created by person having only life interest or other limited interest in the land or in the building are exempted under the Act. First proviso was added to Section 3 (1) (vi) by Act 35 of 1969 stipulating that the clause shall not apply to a tenancy created by a nissanthathi kavaru as defined under the Madras Aliasanthana Act, 1949 in respect of lands or of buildings or of both in which the nissanthathi kavaru has only a life interest. Prior to Act 35 of 1969 the two provisos stood as follows:

Provided that the provisions of Sections 13 to 26 relating to fixity of tenure shall apply to tenancies falling under clauses (v) and (vi) so long as the mortgage, or as the case may be, the life interest or other limited interest subsists;

Provided further that the provisions of this Chapter, other than sections 53 to 72, shall apply to a tenancy created by a nissanthathi kavaru as defined in the Madras Aliasanthana Act, 1949, in respect of lands or of buildings or of both, over which the nissanthathi kavaru has only a life interest.

Before Act 35 of 1969 the first proviso did not make any reference to the tenancy created by a nissanthathi kavaru as defined under the Madras Aliasanthana Act, 1949. Second proviso, before Act 35 of 1969 specifically referred to tenancy created by a nissanthathi kavaru and stipulated that provisions of Chapter IT other than sections 35 to 72 shall apply to such tenancies. The second proviso has under gone a drastic change under Act 35 of 1969.

The present second proviso makes it clear that the provisions of Chapter II other than Section 53 to 72S shall apply to tenancies falling under clause (v) and (vi) so long as the mortgage or, as the case may be, the life interest or other limited interest subsists.

Contention of the revision petitioner is that in view of the second proviso a lessee under a nissanthathi kavaru who has only a life interest is not entitled to purchase the landlord''s right as provided u/s 72B of the Act and at best he can only continue as the lessee under the nissanthathi kavaru. As the second proviso does not make any mention at all about the lease created by a nissanthathi kavaru having only a life interest, it cannot be said that the second proviso takes away the benefit given by the first proviso. As the first proviso introduced by Act 35 of 1969 replaces the first proviso as it stood earlier, making it very clear that Section 3 (1) (vi) shall not apply to tenancy created by a nissanthathi kavaru it cannot be help that the present second proviso would erase the first proviso, altogether especially when the second proviso is silent with regard to the tenancy created by nissanthathi kavaru. It is well settled principle that unless the words are clear, the Court should not so construe the proviso as to attribute intention to the legislature to give one connotation and take away another. In other words, the Court has always to make an endeavour to reconcile the enacting clause and the provisos and the repugnancy between the two. As the first proviso has been added to the principal clause primarily with the object of taking out from that clause a lease granted by a nissanthathi kavaru having limited interest it is patent that the legislature wanted such a lease to be excluded from the ambit of Section 3 (1) (vi). While construing a statute intention of the legislature must be given paramount importance. Courts have recognised this over-riding principle in several cases. The proper function of the second proviso is to carve out an exception to the first proviso. But it must be read along with the main enacting provision. If the Court finds in a particular statute two provisos apparently conflicting it has to consider the object of the statute, the statute in its entirety and whether the legislature intended by the second proviso to nullify the first proviso altogether. In a case where the first proviso specifically deals with a particular aspect and the second proviso does not specifically make any exception to the same it is not possible to hold that the second proviso would obliterate the first proviso. It is useful to refer to Broach Co-operative Bank Ltd. Vs. Commissioner of Income Tax, where it is held as follows:

The proper canon of construing a section which has several provisos is to read the section and the provisos as a whole, try and reconcile them and give a meaning to the whole of the section along with the provisos which is a comprehensive and logical meaning.

Reading section 3(1) (v;) with both the provisos, it is not possible to accept the contention of the revision petitioner that in view of the second proviso a lessee under a nissanthathi kavaru is not entitled to file petition u/s 72B of the Kerala Land Reforms Act.

There is no merit in the Civil Revision Petition, Civil Revision Petition is dismissed and the concatenate finding of the authorities below are confirmed. No costs