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1960 DIGILAW 209 (KER)

Chacko Aley v. Kurian Chacko

1960-06-03

M.S.MENON, T.K.JOSEPH

body1960
Judgment :- 1. The decree-holder in O.S. No. 359 of 1113 of the Munsiff's Court of Kanjirappally is the appellant in this Second Appeal. The Munsiff stayed the execution of the decree under Act VIII of 1950. The Additional District Judge of Kottayam confirmed the order and dismissed A.S. No. 251 of 1953, the appeal filed by the decree holder. 2. Act VIII of 1950 was followed by Ordinance No.1 of 1957. Both the Act and the Ordinance were repealed and replaced by Act 1 of 1957, the Kerala Stay of Eviction Proceedings Act, 1957. 3. S.4 of Act 1 of 1957 provides for the stay of eviction proceedings in the following terms: "Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for the recovery of arrears of rent in respect of, or for damages for use and occupation of, the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, shall lie in any Court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the Courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed: Provided that nothing in this section shall preclude the Court from granting any relief to which the lessor is entitled other than eviction from the holding." The definition of the expression "holding" as given in S.2 (1) of the Act -omitting the reference to Kanapattom and the proviso which are not material - is: "Any immovable property held under a single transaction by which a leasehold right in the property is created and possession of the property is transferred by one person in favour of another." 4. The decree in O.S. No. 359 of 1113 was based on a "Vechupathi Udambadi" dated 2-8-1085, and marked as Ext. A in that suit. The only question for determination is whether the property held under that document constitutes a holding within the meaning of that expression as defined in S.2 [1] of Act 1 of 1957, or in other words, whether Ext. A spells a lease or not. 5. A in that suit. The only question for determination is whether the property held under that document constitutes a holding within the meaning of that expression as defined in S.2 [1] of Act 1 of 1957, or in other words, whether Ext. A spells a lease or not. 5. The nature of the possession under Vechupathi leases was the subject of conflicting decisions in the High Court of Travancore. That question eventually came up before a Full Bench of that court in 25 T.L.J. 230. Joseph Thaliath, Ag. C.J., observed - and if we may say so with respect, correctly - that the proper course to be adopted is to look at the actual terms of the deeds concerned and decide according to the terms disclosed rather than by relying on any general conception regarding the character of such leases. 6. A lease of immovable property according to S.105 of the Transfer of Property Act, 1882, is "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically of on specified occasions to the transferor by the transferee, who accepts the transfer on such terms." We entertain no doubt that Ext. A created a lease within the meaning of this section. 7. The material portion of Ext. A reads as follows: The only contention urged before us is that the provision we have underlined in the extract converts the relationship of landlord and tenant to that of co-owners on the expiry of 12 years from the date of the demise and that after the expiry of the said period of 12 years no "holding" as defined in S.2 (1) of Act 1 of 1957 can be deemed to subsist. 8. We find it impossible to accept the contention. Such an agreement as to how the value for the tenant's improvements should be adjusted on the expiry of the term granted by the lease cannot possibly be construed as effecting on such expiry an automatic conversion of the relationship of land lord and tenant to one of co-ownership between the parties. 9. Such an agreement as to how the value for the tenant's improvements should be adjusted on the expiry of the term granted by the lease cannot possibly be construed as effecting on such expiry an automatic conversion of the relationship of land lord and tenant to one of co-ownership between the parties. 9. Act VIII of 1950 provided that the expression "holding" shall not include Waram or Pathivaram." The only contention urged by the decree holder in the first instance was that the arrangement under Ext. A amounted to a Pathivaram arrangement and was thus outside the purview of that Act. Act 1 of 1957 embodies no such restriction and the contention was not pressed before us. 10. As we take the view that the property in question constitutes a holding as defined in S.2 (1) of Act 1 of 1957, the decisions of the courts below have to be affirmed and this appeal dismissed. We decide accordingly, though in the circumstances of the case without any order as to costs. 11. The proviso to S.4 of Act 1 of 1957 says that nothing in that section "shall preclude the Court from granting any relief to which the lessor is entitled other than eviction from the holding." We make it clear that nothing in this judgment will preclude the decree-holder from moving for any relief other than eviction to which he may be entitled or the court from granting the same.