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1961 DIGILAW 389 (KER)

Thomas v. Poulose

1961-11-02

M.MADHAVAN NAIR

body1961
Judgment :- 1. A.S. No. 11 of 1957 is by the 1st defendant, and A.S. No. 63 of 1957 by the assignee of defendants 3 and 5 against the decree in O.S. No. 184 of 1124 on the file of the District Court, Kottayam. 2. The suit was for recovery of property on the basis of a 'Melvaipa Pattachit', evidenced by Ext. I dated 18-4-1100, executed by the 1st defendant in favour of Kesava Pillai, a member of the plaintiffs' tarwad. In a partition in the tarwad of Kesava Pillai, the suit property, 5 acres 10 cents in extent, was allotted to Ramakrishna Pillai, who assigned the same to the plaintiffs and thereby conferred on him a title to redeem the Melvaipa-pattom. Ext. I covers an extent of 26 acres 95 cents of paddy flats out of which the suit property is only a portion. The contention of the 1st defendant was that the plaintiffs are entitled only to the reversion in 4 acres 10 cents of the suit property; and also that he is entitled to fixity of tenure under the Act IV of 1961 which contention, though not specifically raised in the Memorandum of Appeal, has been allowed by me to be raised in view of the Act passed long subsequent to the institution of this appeal, with direction that all suits concerning agrarian relations shall be decided in accordance therewith. 3. The court below found that the plaintiffs have title to the entire suit property, 5 acres 10 cents in, extent. The, learned Advocate for the 1st defendant pointed put that the entire land covered by Ext. I was 26.95 acres only, but the land that was conveyed under Ext. A to the plaintiffs was described to be 5 acres, 10 cents, after leaving 22 acres 70 cents for Kesava Pillai, that it is impossible to accommodate both in Ext. I property and that therefore the plaintiffs' land could not be 5 acres 10 cents in extent. Ext. A does not refer to the land denied under Ext. I being parcelled out as 22 acres 70 cents for Kesava Pillai and 5 acres 10 cents for plaintiffs' assignors. There is no knowing whether the land mentioned as reserved for Kesava Pillai was out of, Ext. I property or of adjoining land or out of both. Ext. A does not refer to the land denied under Ext. I being parcelled out as 22 acres 70 cents for Kesava Pillai and 5 acres 10 cents for plaintiffs' assignors. There is no knowing whether the land mentioned as reserved for Kesava Pillai was out of, Ext. I property or of adjoining land or out of both. Without the whole facts before the Court, title cannot be found on, a process of addition and subtraction in the incomplete data in evidence. The finding of the District Judge has to be accepted in these circumstances. 4. The question then is whether the 1st defendant is entitled to fixity of tenure. Involved in this is the question whether Ext. I evidences a transaction of tenancy or of usufructuary mortgage. The District judge found Ext. I to be a usufructuary mortgage. The contention now is that Ext. I would amount to a transaction of tenancy as defined in the Act IV of 1961. Sac. 2 (50) of Act IV of 1961 defines a tenant thus: 12. (50) (i) "tenant" means any person who has paid or has agreed to pay or other consideration, for his being allowed by another, to possess and to enjoy land of the latter, and includes (a) an intermediary; (b) a verumpattamdar of any description; (c) a kanamdar; (d) a kanam-kuzhikanamdar; (e) a kuzhikanamdar; (f) a punam or kumri cultivator; (g) a licensee in Kuttanad taluk; (h) a varomdar; (i) an odacharthudar or any person claiming under an odacharthudar referred to in S.4; 0) the holder of a kudiyiruppu; (k) a vechupakuthidar; (1) the holder of a chalgeni lease; and (m) a mulgenidar but shall not include a person holding land under a transaction known as Irakkipanayam ................................... Counsel for the plaintiffs contends that unless the 1st defendant comes within one of the categories thus specified in the definition, he is not a tenant as defined in the Act. I do not see any force in this contention. The clause defines 'a tenant' as meaning such, and such, and then adds that it shall include certain specified categories of persons. The rule of interpretation is that the word 'means' signifies an exhaustive definition, and the word 'includes' indicates that, while the term retains its general meaning, its scope is enlarged by the specific enumeration of certain objects which may or may not come within its ordinary meaning. The rule of interpretation is that the word 'means' signifies an exhaustive definition, and the word 'includes' indicates that, while the term retains its general meaning, its scope is enlarged by the specific enumeration of certain objects which may or may not come within its ordinary meaning. The word 'includes' is always understood to be a word of enlargement and not of restriction. It implies that something more than what is covered by the general meaning is intended to be covered by the term as used in the Act concerned. It can in no way mean that only the specific categories are contemplated in the general expression of the definition. 5. The material portion in Ext I reads: "The property mentioned herein under is given to you on lease, fixing the rent at 1248 parahs and 2 Edangalies, equivalent, in standard measure, to 1109 parahs 3 3/4 Edangalies of These recitals are very specific that the property is conveyed to be enjoyed on lease, having fixed the rent for the land for a year of such enjoyment. The consideration for the enjoyment having been thus fixed in the document, the transaction came well within the terms of clause (50) of S.2 of the Act, IV of 1961 6. The learned advocate for the plaintiffs contends that the transaction embodied in Ext. I is a usufructuary mortgage since an advance of Rs. 1,750/- was given at the time of the demise and a further sum of Rs. 650/- was to be paid before the property was delivered to the demisee and all the amount has been secured on the land. The fact that an advance has been made under the transaction does not, in my view, offend the transaction being one of tenancy. If the advance amounted to a loan between land lord and his tenant, one would expect some provision in the document for its recovery. Significantly enough there is no provision in the document for enforcing repayment of the advance made under it. If the advance amounted to a loan between land lord and his tenant, one would expect some provision in the document for its recovery. Significantly enough there is no provision in the document for enforcing repayment of the advance made under it. Under clause (50) of S.2 of the Act IV of 1961 a kanomdar would be a tenant; and a 'kanom' is defined in clause (18) of S.2 as a transfer for consideration of an interest in specific immovable property, the incidents whereof include "a right in the transferee of hold the said property liable for the consideration paid by him," It is clearly indicative of the fact that the advance (paid at a demise of land) being secured on the land demised would not derogate from the demise being one of tenancy in respect of the land concerned. The suit document is styled a 'Melvaippa Pattachit'. The word connotes "a lease with a loan". The entrustment of the property is expressly said to be 'on lease' only. The rent is specified in the document. In view of these features; Ext. I can only be a demise on lease, though an advance has also been made which is repayable at surrender of the property. 7. It is not disputed that, if the transaction is one of tenancy, no decree for eviction can now be given in view of the conferment of fixity of tenure on all tenants by S.6 of the Kerala Agrarian Relations Act, IV of 1961. It then follows that the decree of the court below allowing eviction of the 1st defendant has to be set aside, and the award of arrears of rent declared subject to the provisions of S.34 of the Act IV of 1961. Further, the claim in the plaint is for arrears of rent upto the date of the suit, and mesne profits thereafter. The suit being against a lessee came within the statutory stay by the Act I of 1957 and therefore also within the purview of the Act IV of 1961. Further, the claim in the plaint is for arrears of rent upto the date of the suit, and mesne profits thereafter. The suit being against a lessee came within the statutory stay by the Act I of 1957 and therefore also within the purview of the Act IV of 1961. Under S.95 of the latter Act the rights of the parties have now to be adjudged only in terms of the latter Act; and even if decree has been passed before the Act for the eviction of a tenant from the holding but eviction has not been effected, the decree has to be amended in conformity with the provisions' of the Act conceding fixity of tenure to the tenant. It then follows that the continuance of the tenant on the land cannot be held wrongful and the award of mesne profits made by the court below cannot be sustained. In the place of mesne profits in the decree of the court below, rent at the rate of 235 parahs of paddy per annum will therefore be substituted. A.S. No. 11 of 1957 is allowed to the extent indicated above. There will be no order as to costs in this appeal. 8. Defendants 3 to 5 claimed 90 cents of land as having been purchased in revenue auctions, Exts. XIV to XVII being the relative sale certificates and delivery lists. They were not parties to the suit as originally instituted. When they were brought on record they filed a statement in court that they were not in possession of any portion of the suit property, the land they purchased in revenue sales having been conveyed away by them in favour of third persons. No attempt was made by the plaintiff to bring on record the assignees of the pieces of land that were sold under the aforesaid revenue sales. The court below has made a declaration that the revenue sales were benami for the 1st defendant. Whether that be fact or not, no such declaration can be made so as to affect persons not on record in this suit. The court below has found that in view of the statement made by defendants 3 to 5 that they are not in possession of any portion of the suit property, they are not necessary parties to the suit. The court below has found that in view of the statement made by defendants 3 to 5 that they are not in possession of any portion of the suit property, they are not necessary parties to the suit. Counsel for the plaintiff agrees for their removal from the array of parties in the suit. I accept the statement and direct that the names' of defendants 3 to 5 be removed from the array of parties in the plaint and the decree. 9. As there is a declaration that the 1st defendant is in possession of the entire suit property and nothing has been shown why that finding should be disturbed at the instance of the 1st defendant, I leave that finding as it is. But I make it clear that the finding can be of no effect so far as it concerns persons not on record in the suit. 10. A.S. No. 63 of 1957 is disposed of as indicated in para 8 above. There will be no order as to costs therein.