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1984 Supreme(Ker) 193
Kerala High Court
SUKUMARAN
C.S.Chandrasekharan Nair - Appellant
Versus
K.George - Respondent
Decided On : 08/10/1984
V. Vyasan Potti and N. Sugathan, for Appellants; V. Ramakrishnan and R. Krishnan Nair, for Respondents.
The court clarified the distinction between a redeemable mortgage and a tenancy under the Kerala Land Reforms Act, 1964, and interpreted the applicability of S.6C to the specific transaction in question.
Headnote:
Redeemable Mortgage - Kerala Land Reforms Act, 1964 - S.74, S.125(3), S.6C
Fact of the Case:
The plaintiff filed a suit for redemption of a transaction, which the defendant claimed to be a tenancy. The lower court upheld the plaintiff's title and found the transaction to be a redeemable mortgage. The defendant raised contentions regarding the nature of the document, the referral of the tenancy question to the Land Tribunal, and the value of improvements. The appellate court assumed the transaction to create a landlord-tenant relationship but found it invalid due to the Kerala Land Reforms Act, 1964. The defendant also raised a contention under S.6C of the Act, which was dismissed by the court.
Finding of the Court:
The court found that the transaction was a redeemable mortgage and not a tenancy, and therefore, the question of referral to the Land Tribunal did not arise. The court dismissed the defendant's contention under S.6C of the Kerala Land Reforms Act, 1964.
Issues: Nature of the transaction, referral of tenancy question to Land Tribunal, validity under S.74 of the Act, and the applicability of S.6C of the Act.
Ratio Decidendi: The court interpreted the provisions of the Kerala Land Reforms Act, 1964, particularly S.74, S.125(3), and S.6C, to determine the nature of the transaction and the applicability of the Act to the case. The court held that the transaction was not a tenancy and therefore not protected under S.6C of the Act.
Final Decision: The second appeal was dismissed, and no costs were awarded.
The defendant in a suit for redemption of Ext. A1 transaction is the appellant in the second appeal. There were various contentions to resist the suit. One was that the transaction in truth and substance amounted to tenancy. The other was that the question whether Ext. A1 document dt. 5-10-1964 evidences a tenancy was within the exclusive jurisdiction of a Land Tribunal. And the third one related to the value of improvements.
2. The title of the plaintiff was upheld and the transaction was found to be a redeemable mortgage. The suit was therefore decreed. Value of improvements to the extent of Rs. 170 had been granted. Three contentions were raised before the Appellate Authority and they related to the nature of the document, about the propriety of not referring the question of tenancy to the Land Tribunal, and the finding on the value of improvements.
3. The last question is one of fact and no violation of any principle of law is established.
4. The first two are serious contentions The lower appellate court, without entering any definite finding on nature of the document, was prepared to assume that Ext. A1 did create landlord-tenant relationship. Even that most favourable finding would not be of any help to the appellants; for, the transaction under Ext. A1 was one which was entered into after the coming into force of the Kerala Land Reforms Act, the reason that Ext. A1 was a post 1-4-1964 transaction. S.74 of the Kerala Land Reforms Act, 1964 prohibited creation of future tenancies. That section would therefore stare in the face of Ext. A1. Therefore that transaction was denuded of legal validity. As there was no valid tenancy which could be taken cognisance under law, the question of reference to the Land Tribunal did not naturally arise. It was for this reason that the court below found no justifiable grievance for the appellants.
5. It was not as though the necessity to have a reference to the Tribunal, ordinarily and when a question of tenancy arises, had not been appreciated by the lower appellate court. That was appreciated in full measure. The ultimate position, taking the most favourable view for the defendant, was that the transaction was of no avail to the defendant, in view of the fact that it was after 1-4-1964. The view cannot be said to be vitiated by a substantial error of law.
6. S.125(3) of the Kerala Land Reforms Act reads as follows :
"125(3). If in any suit or other proceeding any question regarding rights of a tenant or of a Kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only." (Emphasis supplied)
7. Significance has to be attached to the word 'arises' regarding therein. Counsel for the appellants, who argued the case with considerable tenacity, referred to the decision of the case reported in Kesava Bhat v. Subraya Bhat, 1979 Ker LT 766 : (AIR 1980 Ker 40). A Full Bench decision of this Court, sketched the ambit of the term relating to the 'arising' of tenancy in the context of that section. Useful as the guidelines contained in the Full Bench decision are, I am of the view that they are not exhaustive. In the present case, the question of tenancy does not arise in the suit, for a different reason than the one indicated in l979 Ker LT 766 : (AIR 1980 Ker 40) (FB) (supra).
8. The section opens with the words : "If in any suit or other proceeding any question regarding rights of a tenant.......................(including a question as to whether a person is a tenant or a kudikidappukaran) arises........" (Emphasis supplied.) For the section to get attracted, it is therefore essential that the question of tenancy should arise. It is not enoug
