Ramakrishna Pillai vs Govinda Menon and Others

George Vadakkel, J.—Admittedly the first Defendant-Appellant is in possession of the suit property, 1 acre 40791 cents in extent, under an otti transaction of 1063 in favour of his predecessor-in-interest. There are 209 rubber trees thereon. The principal plantation thereon is, therefore, rubber. The trial court dismissed the suit for redemption of the suit property holding that since at the time of the otti transaction it was not a rubber plantation, Section 4A(1)(a) of the Kerala Land Reforms Act, 1963 would govern the case. The lower appellate court took the view that since it was a rubber plantation at the time Section 4A came into force, that provision would not stand in the way of passing a redemption-decree and consequently, decreed the suit. Both the courts are agreed that all other requirements necessary to attract Section 4A(1)(a) are obtained in this case and there is no dispute about that finding before me. Both the courts also, repelling the 1st Defendant''s contention that he is a tenant, held that the above said otti transaction and subsequent otti transactions in respect of the suit property in favour of his predecessor-in-interest are mortgages.

Section 4A(1) reads:

(1) Notwithstanding any thing to the contrary contained in any law or in any contract, custom or usage, or in any judgment. decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if--" (rest omitted)

Broadly speaking mortgages of immovable property fall into two classes; (i) possessory-mortgages, i.e., mortgages with possession of land; and (ii) non-possessory mortgages, i.e., mortgages without possession of land. Perhaps it is a bit confusing to call a mortgagee in possession of land under a possessory-mortgage as a ''mortgagee with possession of land'' which is the expression used in Section 4A(1). How ever, it is in that sense that that expression is employed there. It means: a mortgagee of land who is in possession of it under a mortgage whereunder the mortgagee is entitled to delivery of possession of the mortgaged land and has obtained possession thereof or shortly said: a mortgagee of land in possession of it under a mortgage-with-possession thereof. Such a ''mortgagee-with-possession of land'' is a deemed tenant u/s 4A provided the other requirements stated therein are satisfied. However, if what is mortgaged and given delivery of to the mortgagee is ''land principally planted with rubber, coffee, tea or cardamom; that ''mortgagee-with-possession of land'' is outside the protection of Section 4A and shall not be deemed to be a tenant. This is the plain meaning of Section 4A(1).

The construction of Section 4A (1) as above stated is also in consonance with the scheme of Chapter II of the Act containing provisions regarding tenancies. Section 3(i)(viii) excludes ''tenancies in respect of plantations exceeding 30 acres in extent'' (subject to the proviso thereto) from the operation of Chapter II. ''Plantation'' as defined in Section 2(44) ''means any land used by a person principally for the cultivation of tea, coffee, rubber, cardamom or cinnamon'' [cinnamon is not mentioned in Section 4A(1) ]. Examining the scope of the exemption clause in Section 3(i)(viii) a Full Bench of this Court Overruled the contention advanced that ''clause (viii) will apply in all cases where on the date of commencement of the Act a tenant is in possession of land exceeding 30 acres in extent and the said land is used by him principally for the cultivation of any one of the plantation crops referred to in Section 2(44), whatever might have been the nature of the land or the type of use to which it was being put at the time of the creation of the tenancy'' and held:

It may well be that the legislature thought that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive Parambas or waste lands and might have in course of time by their hard toil developed them into plantations. Even under the provisions of the Malabar Tenancy Act such a tenant was entitled to fixity of tenure unless the lease itself was one granted specifically for the purpose of raising a plantation. If the interpretation of Section 3(i)(viii) contended for by the Appellant is to be accepted, even such tenants in Malabar who had pre-existing rights of fixity under the Malabar Tenancy Act would be divested of that valuable right and rendered liable to be evicted. We do not think that the legislature would have intended such an anomalous consequence. Thus going by the clues furnished by the statutory history preceding this legislation and also by the express language used in Section 3(i)(viii) we are clearly of opinion that it is more reasonable to conclude that the intention of the legislature was to restrict the scope of the exemption to leases of lands which were already "plantations" on the date of the transactions. (Rt Rev. Dr. Jerome Fernandez v. Be-Be Rubber Estate Ltd. 1972 KLT 613

The Full Bench noticed that the exemption under both Section 2(i) of the Malabar Tenancy Act, 1929 and Section 3(e) of the Kerala Stay of Eviction Proceedings Act, 1957 was for ''lands transferred... for planting tea, coffee, rubber'', (and also ''cinchona'' under the first mentioned provision) and that there was a marked change in the language used in Section 3(viii) of the Kerala Agrarians Relations Act, 1961, which exempted ''tenancies in respect of plantations exceeding 30 acres in extent''; and observed:

Whereas the earlier enactments declared that none of the provisions will apply to lands transferred for planting tea, coffee, rubber or any other notified special crop, a totally different phraseology was used in Act 4 of 1961 as a result of which the scope of the exemption was considerably narrowed down. To that extent there was undoubtedly a change in the legislative policy in relation to the grant of exemption for plantations. The legislature when it enacted Act 4 of 1961 must certainly have had before it the earlier enactments which were being repealed and substituted by a more comprehensive legislation and hence it is only reasonable to think that there must clearly have been a definite purpose in departing from the wording that had been used in the same context in the earlier enactments and in couching the exemption clause in totally different terminology. It appears to us that the legislative intent underlying the change of wording is to confine the scope of the exemption to transactions whereunder lands satisfying the statutory definition of "plantation" and having an extent of more than 30 acres have been let out to tenants." Rt. Rev. Dr. Jerome Fernandez v. Be-Be Rubber Estate Ltd. 1972 KLT 613 .

Though till the commencement of the Agrarian Relations Act, 1961 the legislative intent was to exclude from the protection under the several tenancy legislations lands transferred inter alia for planting tea, coffee and rubber, and therefore, till then all such lands whereon such plantation crops had been raised were outside the operation of the provisions prohibiting recovery of lands held under tenancy, the legislature appears to have a second thought on this problem when it enacted the Agrarian Relations Act, 1961 and then, the Land Reforms Act, 1963. In this regard, two changes were brought about by these statutes. Firstly, the scope of the exclusion was confined to cases where at the time of transfer of the land it was a plantation in the sense that the principal cultivation thereon was one on the other of the plantation-crops. Secondly, even so, the extent thereof exceeds 30 acres. In other words, the legislature conferred fixity of tenure also on all tenants who were, at the commencement of the respective statute in possession of holdings on which the principal cultivation was tea, coffee, rubber or any other plantation-crop unless the extent thereof is over 30 acres and further, in such cases where the extent of the plantation exceeds 30 acres, the same was let out as a plantation. This was in furtherance of the avowed object of the legislature that the tiller of the soil shall have ownership thereof.

On the light of the above discussion, Section 4A (1) has to be construed as conferring fixity of tenure on a mortgagee to whom land has been transferred under a mortgage with possession thereof, despite the fact that subsequent to the mortgage he has planted thereon rubber, coffee, tea or cardamom and therefore the mortgage holding at the time of the commencement of the Act was one principally planted with any of the aforesaid crops. The exclusion clause: "other than land principally planted with rubber, coffee, tea or cardamom" refers to the state of affairs obtained at the time of the mortgage. If at the time of the mortgage the land mortgaged with possession is one principally planted with any of the aforesaid crops, the mortgagee would not be entitled to the protection of Section 4A of the Act.

In view of what is stated hereinbefore, the trial court was right in dismissing the suit and the lower appellate court erred in reversing the same. I therefore set aside the judgment and decree of the lower appellate court and restore those of the trial court. The result is, this appeal stands allowed and the suit stands dismissed. The parties shall bear their costs throughout.