Vareed vs P.C. George

Krishnamoorthy Iyer, J.—The two questions that arise for consideration in this appeal are: (1) Whether under the terms of Ext. P1 Will executed by Ittiachan in 1083 his widow Iittianam was competent to execute Ext. P3 lease dated 22-9-1093 to the defendant''s father, in respect of the plaint properties and (2) If so whether the defendant is entitled to the benefit of the proviso to Clauses (i) to (vii) to Sub-section (1) of Section 3 of Act I of 1964.

The plaintiff who is entitled to possession of the plaint items under the terms of Ext. P1 instituted the suit for their recovery from the defendant. The suit hag been concurrently decreed by the courts below. The second appeal is filed by the defendant against the decrees of the courts below.

Paramel Ittiachan executed Ext. P1 Will on 19-10-1083 in respect of his properties including the plaint items. Ittiachan died in Mithunam 1083. The plaint properties are A Schedule items 1 and 2 in Ext. P1. It is agreed that A schedule items 6 and 8 in Ext. P1 were given absolutely to Ittianam. The dispute between the parties relates to the nature of the right created in favour of Ittianam in respect of A Schedule items 1 to 5, 7 and 9 to 17 in Ext. P1. It is admitted that these items were given to the plaintiffs father subject to the rights created in favour of Ittianam. The plaintiffs father died in 1932 and in the partition in the plaintiffs family evidenced by Ext. P2 dated 26-1-1960 the plaint properties were allotted to the share of the plaintiff. The plaintiff claims recovery of possession of the plaint items from the defendant on the basis of his title.

The plea of the defendant that his father got the plaint items on lease from Ittiachan has been concurrently found against and the said finding was not impeached before us.

The appellate Judge found that since Ext. P1 only authorised Ittianam to take the income from A Schedule items 1 to 5, 7 and 9 to 17 in Ext. P1 for her maintenance she was not competent to execute Ext. P3. This finding was impeached before us by the counsel for the defendant. It is therefore necessary to examine the terms of Ext. P1. We shall extract Clauses 4, 5 and 6 of Ext. P1 which deal with the rights created in favour of Ittianam.

[Extract in Malyalam Script.]

In view of the above clauses the plaintiff''s counsel submitted that the right created in favour of Ittianam is only an interest in the properties restricted in its enjoyment to her personally within the meaning of Section 6, Clause (d) of the Transfer of Property Act, and Ext. P3 executed by her is invalid because of the said provision. It has to be mentioned that at the time of Ext. P3, the Transfer of Property Act was not in force in the erstwhile Cochin State, and the question, therefore, cannot be decided on the basis of Section 6 of the Transfer of Property Act.

A lease of immovable property being a transfer of a right to enjoy such property, the person granting the lease must possess an interest therein. A lease may be in respect of corporeal hereditaments or in respect of incorporeal hereditaments. The words [Extract in Malyalam Script] in Clause 4 of Ext. P1 make it clear that the testator did not intend to create a life-estate in favour of Iltianam in respect of the properties but he intended to confer on her a restricted right of enjoyment of the usufruct only for her maintenance. The object of the bequest in favour of Ittianam is to provide her maintenance and for this purpose to give her a personal right to appropriate the profits of the properties. It is significant to find a provision in Ext. P1 to the effect that if on account of illness Ittianam had to incur any additional expenditure she could encumber the properties to the extent of Rs. 500. This shows that the properties set apart for the maintenance of Ittianam were yielding only an income sufficient for her maintenance. It is no doubt an indication that what was granted was only a right to appropriate the profits of the properties which will not exceed a reasonable maintenance for her. In view of the decisions in AIR 1939 157 (Privy Council) and Lal Mohan Mahanty and Another Vs. Onkar Mall Marwari and Another, it may be possible to hold that the interest in favour of Ittianam under Ext. P1 was an interest restricted in its enjoyment to the owner personally within the meaning of Clause (d) of Section 6 of the Transfer of Property Act. But this finding will not in any way assist the plaintiff since Section 6(d) has no application to the case. It has therefore to be examined whether Ext. P1 created an interest in land in favour of Ittianam. We think it unnecessary to decide this question as we are of the view that even assuming that Ittianam was competent to execute Ext, P3, the defendant is not entitled to the benefit of the proviso to Section 3 (1) (i) to (vii) of Act I of 1964. According to the learned counsel for the defendant though Ittianam got only a life-interest in the plaint properties under Ext. P1, the defendant who claims under Ext. P3 acquired fixity of tenure u/s 4 of the Cochin Verumpattomdars Act (VIII of 1118) and the said right is preserved by the proviso to Clauses (i) to (vii) of Sub-section (1) of Section 3 of Act 1 or 1964.

Clause (vi) of Sub-section (1) of Section 3 exempts 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 from the operation of Chapter II of Act I of 1964 subject to the right of the tenant for fixity of tenure during the period of the life-interest or other limited interest. But the proviso to Clauses (i) to (vii) of Sub-section (1) of Section 3 of Act 1 of 1964 on which reliance was made on behalf of the defendant reads thus:

"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;"

The plea of the defendant was that though he was the lessee of a limited owner or a person having only a life-interest in the property Section 4 of Cochin Verumpattomdars Act (VIII of 1118) has conferred on him fixity of tenure on the land which he is enjoying even against the plaintiff. It is therefore necessary to examine the soundness of this contention.

The general principle of law is that a limited owner or a person having a limited interest is not entitled to create a subordinate interest to continue after the termination of his own interest in the property. If authorities are necessary for this proposition we Will cite the decisions of the Supreme Court in Mahabir Gope and Others Vs. Harbans Narain Singh and Others, and Mahabir Gope and Others Vs. Harbans Narain Singh and Others, :Chandrasekhara Iyer, J. pointed out:

"The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee."

Venkatarama Ayyar, J. in AIR 1956 SC 305 said:

"The law is that a person cannot confer on another any right higher than what he himself possesses, and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption of the mortgage."

This principle is also recognised by Section 111(c) of the Transfer of Property Act. The learned counsel for the defendant did not demur to this general principle of law, but according to him in view of the conferment of fixity of tenure to the tenants under, the Cochin Verumpattomdars Act (VIII of 1118) the defendant who is only a tenant of the holder of a limited interest is entitled to claim immunity from eviction even against the plaintiff. In support of his proposition the learned counsel relied on Binad Lala Pakrashi v. Kalu Pramanik, (ILR 1893 Cal 708 and Atal Rishi v. Lakshmi Narain Ghose (1909) 10 C LJ 55. In ILR 1893 Cal 708 a tenant was put into possession by a person who claimed to be the proprietor of the land and though it subsequently turned out that he was not, it was held that the leasing by such a de facto proprietor gave the tenant the status of a raiyat within the meaning of Section 5, Sub-section (3) of the Bengal Tenancy Act (8 of 1885). This decision was considered in Peary Mohan Mondal v. Radhika Mohan Hazra (1904) 8 CWN 815 and Krishna Nath v. Mahomed Wafiz AIR 1916 Cal 598 where it was observed that the basis of the decision in ILR 1893 Cal 708 was that the word "proprietor" in Section 5 (3) would include a ''de facto'' as well as a ''de jure'' proprietor, and a tenant who is ''bona fide'' inducted into possession by a de facto proprietor would have the status of a raiyat. The decision in ILR 1893 Cal 708 does not therefore support the defendant. The decision in (1909) 10 CLJ 55also proceeded on the interpretation of Sections 44 and 45 of the Bengal Tenancy Act (8 of 1885). The head-note of that decision is itself sufficient to show tin''s. It reads thus:

"As a general principle of law, a limited owner is not entitled to create a subordinate interest to continue after the termination of his own interest in the property.

But when an ijaradar having a limited interest brings a raiyat on the land, the status of such raiyat is defined and his rights are regulated by the Bengal Tenancy Act, and he becomes at least a non-occupancy raiyat, and can be ejected only if one or more of the grounds mentioned in Section 44 of the Bengal Tenancy Act art made out.

A raiyat who has obtained possession in good faith from even a trespasser is entitled to be treated as a non-occupancy raiyat."

This decision also does not support the proposition advanced on behalf of the defendant that a tenant in whose favour fixity is graded against his landlord is entitled to claim permanent occupancy rights even against persons having paramount title to his landlord. The decisions of the Supreme Court in Mahabir Gope and Others Vs. Harbans Narain Singh and Others, , Prabhu Vs. Ramdev and Others, and Mahesh Bhagat Vs. Ram Baran Mahto and Others, do not also in our view support the defendant. These decisions were based on an interpretation of the provisions in the several enactments discussed therein and cannot be of any help to us. Section 4 of the, Cochin Verumpattomdars Act (VIII of 1118) will not in any way help the defendant to non-suit the plaintiff. The said Act was passed to confer on certain terms and conditions fixity of tenure to verumpattom tenants against their landlords. Section 4 of the said Act reads:

"Notwithstanding any law, custom or contract to the contrary, every verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in Section 8 of this Act". The terms "eviction" and "holding" are not defined in the Act. Section 17 of the Act says "where there is any conflict or inconsistency between the provisions of this Act and the provisions of the Cochin Transfer of Property Act, XVII of 1111, or the Cochin Tenancy Act XV of 1113, the provisions of this Act shall prevail." The scheme of those enactments and also the Cochin Verumpattomdars Act was to grant fixity of tenure to a kanam tenant and to a verumpattomdar against the landlord. Since there is nothing inconsistent in the Cochin Verumpattomdars Act the terms "holding" and "eviction" there in are to carry the same meaning as that given by the definition clause in the Cochin Tenancy Act XV of 1113. Even that apart Sections 6, 7, 9, 10, 11, 13 and 16 indicate without any doubt that the benefit of Section 4 of the Cochin Verumpattomdars Act is available to a tenant only against his land lord. We are of the view that Section 4 of the Cochin Verumpattomdars Act, 1118, cannot in any way affect the right of the plaintiff to recover possession of the properties from the defendant. We therefore hold that the second appeal is without merit and dismiss it with costs.