Unnikkathiya and Others vs Sankaran and Others

Balanarayana Marar, JJ.—This second appeal arises from the decision of the Sub Court, Tirur in A.S. No. 34/1978 which was filed against the judgment and decree in O.S. 12/1976 before the Munsiff''s Court, Parappanangadi. The suit was one for recovery of possession on the strength of title. The property was purchased by the Plaintiff from one Narayanan Nair in 1964. Narayanan Nair had verumpattom rights. The property was mortgaged to one Moideenkutty, brother of Defendants, on 29th January 1967 by which possession was also given. There is no document to evidence the mortgage. Moideenkutty was in possession till his death and thereafter Defendants are in possession. The mortgage is alleged to have been granted for a consideration of Rs. 225 and on condition to pay 30 paras of paddy, out of which 7 1/2 paras are to be adjusted towards interest and the balance of 22 1/2 paras to be delivered to Plaintiff during Makaram every year. Rent is alleged to have been paid till January 1967 and thereafter is in arrears. Defendants did not surrender possession as per demands made by Plaintiff and that necessitated the suit.

Defendants denied the mortgage as well as the possession of Moideenkutty. They contended that the property was taken on lease by 1st Defendant from Plaintiff on 25th June 1964 on payment of a munpattom amount of Rs. 200 and agreeing to deliver 20 paras of paddy every year. They claimed fixity of tenure.

The dispute was referred to the Land Tribunal who held that 1st Defendant is not entitled to fixity of tenure. The trial Court accepted that finding and the suit was decreed. The appellate Court concurred with that decision. Aggrieved by that Defendants have come up in second appeal.

The learned Single Judge before whom the second appeal came up for hearing directed the appeal to be placed before a Division Bench in view of the conflict of views in the decisions in 1979 KLT (S.N.) 47, Rathna Bai v. Rajeeiva 1981 KLT (S.N.) 62, and B. Rajeevi R. Hegde Vs. Thyampanna Shetty and Others, . That is how the matter is now before us.

Can Sections 7 and 74 of the Kerala Land Reforms Act (hereinafter referred to as the Act) be reconciled is the main question that we are called upon to consider. M.P. Menon, J. in 1979 KLT (S.N.) 47 held that if the conditions specified in Section 7 are satisfied in a given case, the transaction shall be deemed to be a tenancy notwithstanding the embargo of Section 74 against the creation of tenancies after 1st April 1964. It was stated that Section 7 cannot be considered as repugnant to Section 74 and it has to be given full effect. In a later decision Bhat, J. held that there is nothing in Section 74 of the Act or in any other provision of the Act which will indicate that the expression "tenancy" in Section 74 of the Act is intended to have such a restricted meaning. It was further stated: "To attach such a restricted meaning to "tenancy" occurring in Section 74 would be to whittle down the vigour of the deeming provisions incorporated by the Legislature. In this view I am unable to agree that deeming tenancies will not attract the embargo contained in Section 74 of the Act" (vide 1981 KLT S.N. 62). In a still later decision in B. Rajeevi R. Hegde Vs. Thyampanna Shetty and Others, Bhaskaran, Ag. C.J. (as he then was) held that the deeming tenancy envisaged by Section 7 within its sweep is capable of taking in all cases of occupation satisfying the requirements laid down in Section 7 read with the explanation. This apparent conflict of views has to be resolved.

Section 7 as it originally stood conferred benefits on persons honestly believing themselves to be tenants provided they were continuously in occupation of the land of another situated in Malabar for not less than two years on 11th day of April 1957. Section 7 was recast in the present form in 1969 by Section 9 of Act 35 of 1969, at a time when Section 74 was in the statute book and the embargo in creating future tenancies was still operative. Section 74 prohibits creation of tenancies on and from the 1st of April 1964 and any tenancy created in contravention of that provision shall be invalid. That the legislature was not unaware of the prohibition contained in Section 74 in creating tenancies after 1st April 1964 has been manifested in Section 6C of the Act introduced by Section 3 of the Kerala Land Reforms (Amendment) Act, 1979. That section starts with the clause "notwithstanding anything contained in Section 74...." The scope of Section 6C came up for consideration in C.S. Chandrasekharan Nair and Another Vs. K. George and Another, , wherein it was held that Section 6C operates as an exception to the sweeping provisions contained in Section 74. While observing that any tenancy after 1st April 1964 is devoid of force under that section, the decision stated that Section 6C salvages only one class of transactions among the many types which would be within the mischief of Section 74. That class is restricted to cases where the occupation of a person is on the basis of a lease-deed executed. If one class of transactions could be specifically excluded from the purview of Section 74, we fail to understand as to why the legislature could not exclude any other class by using similar expressions in the statute. The non-mention of Section 74 in the amended Section 7 of the Act is therefore a clear indication of the intention of the legislature not to exclude that section from the operation of Section 74.

It is argued by the learned Counsel for the Appellants that leases granted by persons having only a limited interest are given protection u/s 7B even though they are exempted u/s 3(1)(vi) of the Act. But for the deeming provision contained in Section 7B, persons in possession by virtue of leases granted by limited owners are exempted under Chapter 2 and such a person cannot claim fixity of tenure. Construing Section 3(1)(vi) and Section 7B together Khalid, J. (as he then was) held in Travancore Devaswom Board v. Krishnan 1980 KLT 787, that Section 3(1)(vi) has to be read subject to Section 7B. Otherwise Section 7B would be rendered inoperative. The question came up for consideration again in B. Rajeevi R. Hegde Vs. Thyampanna Shetty and Others, , where the applicability of Section 7 to the case of a lease granted by a limited owner came up for consideration. It was held:

The deemed tenancy envisaged by Section 7 within its sweep is capable of taking in all eases of occupation satisfying the requirements laid down in Section 7 read with the explanation, no exclusion from its purview appears to have been contemplated in case such conditions are satisfied. In view of the scheme of the Act and the object behind the deemed provision it is difficult to hold that it was the intention of the legislature to restrict the scope and amplitude of Section 7 by Section 3(1)(vi). Therefore, Section 3(1)(vi) would not have any application to cases covered by Section 7.

The counsel wanted us to draw an analogy and find that the prohibition in Section 74 will not stand in the way of a person claiming deemed tenancy u/s 7 of the Act. That analogy is not apposite. Section 3 only exempted certain tenancies from the benefit of the Act. Some of such tenancies were brought within the fold of the Act by the deeming provisions. One such provision is Section 7 of the Act. A fiction is necessary only when the realities are different from the situation visualised by the fiction. The effect of Rajeevi B. Rajeevi R. Hegde Vs. Thyampanna Shetty and Others, is only that persons covered by Section 3(1)(vi) of the Act could not be tenants, they would still be deemed tenants in view of Section 7 of the Act. In Rajeevi, B. Rajeevi R. Hegde Vs. Thyampanna Shetty and Others, this Court had no occasion to consider the effect of a total prohibition for creation of tenancies, deemed or actual, whether by legal fiction u/s 7 or by Act of parties subsequent to 1st April 1964. We hold that the above decision does not support the submission urged by the Appellants.

The counsel for Appellants argues that Section 74 contemplates only voluntary acts. In other words, parties cannot create tenancies whereas the fixity u/s 7 is conferred by a statutory fiction which has to be carried to its logical conclusion. It is pointed out that certain categories of persons who will not come under the definition of a tenant were brought into the Act by the legal fiction created in Section 7. In spite of the prohibition in Section 74, benefits of the Act can be claimed by such persons, according to the counsel. But the prohibition created by Section 74 is an absolute prohibition as held in Kannan v. Kunhabdulla 1981 KLT S.N. 95. The prohibition in the section was found to be absolute and operates to nullify any lease that may be purported to be created. Even according to the counsel for the Appellants Section 7 does not validate any tenancy created by the parties after 1st April 1964. But it would only amount to a declaration by the legislature that under certain conditions the status of a tenant can be attributed to persons who are found to be in occupation for the period mentioned in that section. It was on this basis that M.P. Menon, J. tried to reconcile the provisions contained in Sections 7 and 74. The contention that the words in Section 74 of the Act that "no tenancy shall be created" must be taken to be limited to contractual tenancies and not to deemed tenancies did not find favour with Bhat, J. in the decision in Rathna Bai v. Rajeeiva 1981 KLT S.N. 62 (C.R.P. 1407/80). It is stated therein that the expressions "deemed tenant" and "deemed tenancy" do not indicate, in effect, a category of persons or relationship different from the category of tenants or tenancies at least for the purpose of the Act. A "deemed tenant" for the purpose of the Act was found to be a tenant with all the rights and obligations vesting in a "tenant" simpliciter under the Act. It is further stated:

There is nothing in Section 74 of the Act or in any other provision of the Act which will indicate that the expression "tenancy" in Section 74 of the Act is intended to have such a restricted meaning. To attach such a restricted meaning to "tenancy" occurring in Section 74 would be to whittle down the vigour of the deeming provisions incorporated by the Legislature.

It was in this view that the learned Judge held that the revision Petitioner therein who had come into possession after the commencement of Act 1/1964 was not entitled to get the benefits of Chapter 2 of the Act. We are in agreement with the view expressed by Bhat, J. in the decision in 1981 KLT S.N. 62 and the decision of M.P. Menon, J. in 1979 KLT S.N. 47 to the extent it is against the observations contained herein is overruled.

A question may arise as to who are the persons intended to be benefited by the amended Section 7 of the Act in case persons who had come into occupation after 1st April 1964 are excluded from the purview of that section by virtue of the prohibition contained in Section 74. Section 7 envisages a class of persons who had been in occupation of the land of another situated in Malabar and they shall be deemed to be tenants provided (1) they were in possession on 1st January 1970; and (2) they were in continuous possession for a period of 2 years within a period of 12 years prior to 11th April 1967. When possession for a period of two years within the said period of twelve years has been proved, it has to be presumed by virtue of the explanation to Section 7 that such person has been in such occupation honestly believing himself to be a tenant. It is argued on behalf of the Appellants that the purpose of the legislation will be defeated if persons who were in possession on 1st January 1970 and satisfying the conditions embodied in Section 7 are not conferred the benefits intended to be conferred by that section. Acceptance of this submission will result in classification of tenancies which came into being after 1st April 1964 into two and treatment of these two sub-classes differently. Tenancy "created" after 1st April 1964 may not be recognised whereas those "deemed to be tenants" by possession subsequent to that date may enjoy all the benefits of tenancy. We do not find any justification for such sub-classification. "Deemed tenants" under other provisions of the Act are within the prohibition of Section 74 of the Act. There is no reason to treat deemed tenants under" Section 7 alone differently. The legislature would not have intended such anomalous position. A certain class of persons will definitely come within the category contemplated in Section 7 and without doing violence to Section 74 they can be conferred the benefits of that section. They are persons who had come into possession before 1st April 1964 and continued in possession honestly believing themselves to be tenants for a period of two years between that date and 11th April 1967 and were in occupation on 1st January 1970. A harmonious construction of Sections 7 and 74 together will lead to the conclusion that only this class of persons are intended to be benefited by Section 7 and they can claim those benefits by invoking the aid of that section and the explanation thereto.

The Appellant has admittedly come into possession in 1967 after the commencement of the Land Reforms Act. The lease or the deemed tenancy in his favour is violative of Section 74 of the Act and as such invalid. The rights of a deemed tenant cannot, therefore, be claimed by him. The Land Tribunal and the appellate Court had rightly denied the relief claimed by the Appellant. No interference is called for in second appeal.

We dismiss the second appeal but without costs.

*A reproduction from ILR (Kerala Series).