Madhavi and others vs Kanaran and others

P. Govindan Nair, J.—Defendants 1 to 5 are the appellants in this Second Appeal which has been adjourned for hearing by a Division Bench by a learned single Judge of this Court. The question for consideration is whether appellants 1, 5 and 8 (appellant 1 died and his legal representatives have been impleaded) are entitled to the benefit of the provision to Clause vii of sub-section (1) of Section 3 of the Land Reforms Act, 1963. The trial court rejected the plea of the appellants in this regard and the matter does not seem to have been argued before or considered by the lower appellate court. We have permitted the point being agitated before us since this question, which is the main question, is a pure question of law and has been raised at the earliest time and urged before the trial court.

Section 3 of the Land Reforms Act, 1963 exempts from the provisions of Chapter II thereof in which the section occurs certain kinds of leases. It is sufficient for our purposes to notice the tenancies mentioned in clause (v) and (vi) of subsection (1) of Section 3. These relate respectively to tenancies in respect of land or of building or of both created by mortgagees in possession or by persons deriving title from such mortgagees and 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. There are two provisos to clause (vi) and an explanation which is unnecessary to refer to. Thereafter leases of private forests are exempted from the provisions of Chapter II in clause (vii) of sub-section (1) of Section 3 and there is a proviso to clause (vii) which is the one that is pertinent for the purpose of this case. We shall read it.

Provided that nothing in clauses (i) to (vii) shall affect the rights of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force;

It is urged by counsel for the appellants that by virtue of Section 43 of the Malabar Tenancy Act, 1929, appellants were entitled to fixity of tenure immediately before the 21st January, 1961 and by virtue of the proviso just read they are entitled to have the same fixity of tenure.

Section 43 of the Malabar Tenancy Act, 1929 is in these terms :-

Notwithstanding anything contained in the Transfer of Property Act. 1882, or in any other law for the time being in force, or in any contract, a cultivating tenant or the holder of a kudiyiruppu shall be entitled to continue on the holding as such, although the rights of his immediate landlord or of any superior landlord have been extinguished, whether by eviction or by redemption of a mortgage or otherwise, subject, however, to a liability to pay fair rent and to the provisions of this Act applicable to a cultivating tenant or the holder of a kudiyiruppu, as the case may be.

The contention put forward is that the rights of the landlord who created the leases have been extinguished by death and that such an extinguishment is envisaged by the section and will fall within the expression "or otherwise" occurring after the words "eviction or by redemption of a mortgage." occurring in the section. It may be possible to read the section in two different ways. The respondents contend that the expression "or otherwise" in the section should be read ejusdem generis with "eviction or by redemption of a mortgage" and that both eviction as well as redemption of a mortgage contemplate the exercise of a volition by the landlord or the mortgagor of the property. Only such extinguishment that result from the exercise of volition will fall within the expression "or otherwise." It is pointed out that so far as the life interest holder is concerned, his interests are extinguished automatically on death and there is no exercise of any volition. And in such cases the section, it is said, has no application. The other way of reading the section, which we think is the proper way of reading it, is to give a wider meaning to the expression "or otherwise." It is not always that the principle of ejusdem generis can apply. In fact for the principle to apply there must be a genus and only in such cases where a genus is spelt out from the named categories in the section that it would be possible to give the residuary clauses such as "or otherwise." a limited meaning in consonance with or pertaining to whatever had already been detailed. We need not labour this point, for there is a clear pronouncement of the Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal and others reported in 1968 S.C.R. 1908 (1), 9 which we think must apply in interpreting this section. We therefore hold that the appellants are entitled to the benefits of section 43. If they are so entitled to the benefit of Section 43, no further question arises for the proviso to clause (vii) of sub-section (1) of Section 3 of the Kerala Land Reforms Act, 1963 saves the fixity of tenure conferred by Section 43 in favour of the lessees.

Before leaving this point we would like to refer to a further argument advanced by counsel for the appellants based on the provision in clause (vi) of subsection (1) of Section 3 of the Kerala Land Reforms Act. This clause specifically exempts leases created by life interest holders or by other limited holders from the provision of Chapter II of the Land Reforms Act saving fixity of tenure to tenants. It is said that this provision changed the existing law. And in so far as the earlier law provided for fixity in regard to leases created even by limited owners, it had become necessary to exclude the operation of this clause by enacting the proviso. That is why it is mentioned in the proviso that notwithstanding anything contained in clauses (i) to (vii) the fixity of tenure that was available on the 21st January, 1961, is saved. The only provision under which fixity of tenure could have been conferred on tenants of limited owners is that contained in Section 43 of the Malabar Tenancy Act, 1929. The legislature in enacting the Land Reforms Act, 1963 apparently therefore proceeds on the basis that this type of tenants had fixity of tenure. This reinforce the conclusion that we have reached.

We have assumed in dealing with this main question that the leases which are three; one evidenced by Ex. A-3 in relation to 1.57 acres claimed by the first defendant the second evidenced by Ext. A4 relating to 56 cents claimed by the 5th defendant and the third, the lease relating to 32 cents claimed by the 8th defendant are leases executed by persons who have had life interests in the property. This has been challenged before us by counsel for the respondents and his challenge is based on Ex. A2, a document executed by the male children of kuttuli and by their children. The executants have provided in the document that the ownership of the properties in that document, Ext. A2, will vest after their life time with the children of the sisters. We have perused this document very carefully and we are doing no violence to the provisions of the document when we say that the interest taken by the persons who executed the lease is only a life interest in the properties. The contention urged by counsel for the respondents against this position cannot stand.

Yet another attempt was made by counsel for the respondents to get over Section 43 of the Malabar Tenancy Act. Reliance was placed on a decision of this Court in Nanu Vydiar v. Lakshmikutty Amma and others reported in 1962 K.L.J. 314 and it is urged that only valid leases created by the life interest holders that can attract Section 43 and it was pointed out that the bar imposed by the provisions in Ex. A-2 prevented the person who executed the leases from creating leases such as, Ext. A-3 and A-4 for premium, that those leases are invalid and that therefore Section 43 is not available to the lessees under those documents. We do not think this contention can be accepted for Section 43 starts with the preface that it will apply notwithstanding anything contained in the Transfer of Property Act or any other law or in any contract. The provisions in Ex. A-2 cannot certainly have any greater validity than that of a contract and the section has therefore to apply notwithstanding the contract. In the result, we allow this appeal in regard to the claims put forward by the three appellants, 1, 5 and 8 pertaining to the properties respectively covered by Exs. A-3 and A-4 and 32 cents claimed by the 8th defendant and set aside the decree passed by the courts below in respect of these properties and dismiss the suit in regard to these properties. The decree in respect of the other properties will stand. We direct the parties to bear their respective costs throughout.