The prohibition in S.74 of the Kerala Land Reforms Act is absolute and nullifies any lease created after 1-4-1964, including deemed tenancies under S.7. Only a specific class of persons who came into possession before 1-4-1964 and satisfied the conditions of S.7 are intended to be benefited by that section.

Balanarayana Marar, J.

1. 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 29-1-1967 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 71/2 paras are to be adjusted towards interest and the balance of 221/2 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.

2. 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 25-6-1964 on payment of a munpattom amount of Rs.200/-and agreeing to deliver 20 paras of paddy every year. They claimed fixity of tenure.

3. 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.

4. 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 K.L.T. S.N.47, Rathna Bai v. Rajeeiva (1981 K.L.T. S.N. 62) and B. Rajeevi v. Thyampanna Shetty (AIR 1984 Ker. 222 = 1984 KLT 536). That is how the matter is now before us.

5. Can S.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 K.L.T. (S.N.) 47 held that if the conditions specified in S.7 are satisfied in a given case, the transaction shall be deemed to be a tenancy notwithstanding the embargo of S.74 against the creation of tenancies after 1-4-1964. It was stated that S.7 cannot be considered as repugnant to S.74 and it has to be given full effect. In a later decision Bhat, J. held that there is nothing in S.74 of the Act or in any other provision of the Act which will indicate that the expression "tenancy" in S.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 S.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 S.74 of the Act" (vide 1981 KLT SN 62). In. a still later decision in A.I.R. 1984 Ker. 222 Bhaskaran Ag. C. J. (as he then was) held that the deeming tenancy envisaged by S.7 within its sweep is capable of taking in all cases of occupation satisfying the requirements laid down in S.7 read with the Explanation. This apparent conflict of views has to be resolved.

6. S.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. S.7 was recast in the present form in 1969 by S.9 of Act 35 of 1969, at a time when S.74 was in the statute book and the embargo in creating future tenancies was still operative. S.74 prohibits creation of tenancies on and from the 1st of April, 1964 and any tenancy created in contraven