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Judges : M.S.MENON,P.GOVINDA NAIR
MADHAVI AND OTHERS - Appellant
Versus
KANARAN AND OTHERS - Respondent
Case No : S. A. No. 875 of 1963
Decided On : 03/05/1968
Advocates Appeared :
V. R. Krishna Iyer; K. Raghavan Nair; For Appellants P. C. Balakrishna Menon; A. P. Chandrasekaran; For Respondents
Land Reforms Act - Entitlement to Fixity of Tenure - S.3 of Land Reforms Act, 1963 - S.43 of Malabar Tenancy Act, 1929 - [S.3 of Land Reforms Act, 1963, S.43 of Malabar Tenancy Act, 1929] - The court discussed the entitlement to fixity of tenure under S.3 of the Land Reforms Act, 1963 and S.43 of the Malabar Tenancy Act, 1929. The court interpreted the provisos to Clause vii of sub-section (1) of S.3 and held that the appellants were entitled to the benefits of S.43, saving the fixity of tenure conferred by it in favor of the lessees. The court also addressed the contention regarding the validity of leases created by life interest holders and held that S.43 applies notwithstanding any contract, thereby allowing the appeal in favor of the appellants.
Fact of the Case:
Defendants 1 to 5 appealed for entitlement to the benefit of the provisos to Clause vii of sub-section (1) of S.3 of the Land Reforms Act, 1963. The trial court rejected their plea, and the matter was brought before the Division Bench for consideration.
Finding of the Court:
The court found that the appellants were entitled to the benefits of S.43 of the Malabar Tenancy Act, 1929, saving the fixity of tenure conferred by it in favor of the lessees. The court also allowed the appeal in favor of the appellants in relation to the properties covered by certain leases.
Issues: The main issue was the entitlement of the appellants to the benefit of the provisos to Clause vii of sub-section (1) of S.3 of the Land Reforms Act, 1963, and the validity of leases created by life interest holders.
Ratio Decidendi: The court held that the appellants were entitled to the benefits of S.43, saving the fixity of tenure conferred by it in favor of the lessees. The court also ruled that S.43 applies notwithstanding any contract, allowing the appeal in favor of the appellants.
Final Decision: The court allowed the appeal in regard to the claims put forward by the appellants pertaining to certain properties covered by leases and set aside the decree passed by the lower courts in respect of these properties, dismissing the suit in regard to these properties. The decree in respect of the other properties stood, and the parties were directed to bear their respective costs throughout.
1. 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.
2. 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 provisos to Clause vii of sub-section (1) of S.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.
3. S.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 clauses (v) and (vi) of sub-section (1) of S.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 in 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 S.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 (1) to (vii) shall affect the right of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force;"
4. It is urged by counsel for the appellants that by virtue of S.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.
5. S.43 of the Malabar Tenancy Act, 1929 is in these terms:-"43. 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."
6. The contention put forwad 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 readejusdemgeneris 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 and the landlord (mortgagor) of the property. Only such extinguishment that results from the exercise of volition by the landlord that 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 on his part. And in such cases the section, it is said, has no application. The other way of reading the section, which we think is the prope
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