Neelakanta Pillai v. Madhavan Nair — 1965 DIGILAW 87 (KER)

Judgment :- 1. This appeal is by the plaintiff in O.S. 44 of 1957, Additional Sub Court, Mavelikara against the dismissal of his suit for declaration of title and for recovery of possession with mesne profits of the suit properties, which are Kandukrishi pattom lands. The lands in question, had been acquired by the plaintiff's maternal grand-father in the year 1044. On the extinction of the acquirer's tarwad, a suit for recovery of possession of the property was filed against the elder brother of the plaintiff alleging that the property had been leased to him. In the said suit the members of the plaintiff's tarwad pleaded that there was a gift of the properties to them. The said plea was found against, but the suit was dismissed on the finding that the properties were not held under the lease deed. Ex. A is a copy of the judgment of the High Court of Travancore which evidences these facts. Thereafter by a Nichayapatrom, Ex-D dated 3-1-1091 in the plaintiff's tarwad, the properties were to be enjoyed by the successive karanavans of the tarwad for the time being. The karanavan at the time of Ex-D was one Govinda Pillai who died in 1108 and was succeeded by one Sankara Pillai. Sankara Pillai executed a lease deed Ex-11 dated 8-8-1108 (copy of which is Ex. E) to the first defendant. Sankara Pillai died in 1110 and was succeeded by the next karanavan Velayudhan Pillai. By a Nichayapatrom. Ex-G dated 11-12-115 Velayudhan Pillai conveyed his life interest and his right to be in possession in favour of his nephew Damodaran Pillai. Velayudhan Pillai died in 1122 and Damodaran Pillai in 1128. Damodaran Pillai sued the first defendant in O.S. 108 of 1116 for recovery of possession with arrears of rent (Be it noted that this suit was not based on Ex-11 but on the lease deed Ex. F, in respect of which, it was common case, as is recorded in Para.4 of the judgment of the trial court, that the same was not acted upon). The suit O.S. 108/1116 was compromised as evidenced by Ex-L dated 1-4-1119. By the terms of the said compromise, item 2 of the plaint schedule property was surrendered by the first defendant to Damodaran Pillai and Damodaran Pillai gave up all rights in respect of item 1 in favour of the first defendant. 2. The suit O.S. 108/1116 was compromised as evidenced by Ex-L dated 1-4-1119. By the terms of the said compromise, item 2 of the plaint schedule property was surrendered by the first defendant to Damodaran Pillai and Damodaran Pillai gave up all rights in respect of item 1 in favour of the first defendant. 2. Pending the above suit Damodaran Pillai and the first defendant had applied for transfer of registry which was eventually granted by the Government to the first defendant in respect of item 1, and to Damodaran Pillai's wife (2nd defendant) in respect of item 2, Damodaran Pillai himself having died before the final order directing mutation of names was passed. This is evidenced by Ex. XIX dated 29th September 1950. Defendants 3 to 11 are the children of Damodaran Pillai and the 12th defendant is the person in possession. 3. The plaintiff is the next senior in age to Velayudhan Pillai and also the sole member of the family at the time of the institution of the present suit. He laid the suit on the ground that the rights of the first defendant as the lessee had come to an end on the death of Sankara Pillai, that in any event, the same had terminated as a result of the compromise evidenced by Ext-L, and that he is therefore entitled to recover possession of the properties. 4. In the course of the hearing it seems to have been argued in the court below that the issuance of the patta by the order Ext-XIX ought to enure in favour of the plaintiff by reason of the principle embodied in S.90 of the Indian Trusts Act, and that the plaintiff is entitled to regard himself as the pattadar of the lands on that basis. 5. The court below found that the first defendant had been holding the property under Ex-II, that he is estopped from questioning the title of the plaintiff's tarwad to the properties at the time of the lease and that the grant of the patta to defendants 1 and 2 extinguished whatever antecedent rights the plaintiff and his tarwad had in the properties. 6. On the basis of the above findings the court below dismissed the plaintiff's suit, against which the plaintiff has preferred this appeal. 7. 6. On the basis of the above findings the court below dismissed the plaintiff's suit, against which the plaintiff has preferred this appeal. 7. The main point and indeed the only point, that was urged before us by counsel for the appellant was that as the first defendant was in possession as a lessee under Ex-II and obtained patta under Ex-19, by availing himself of his character as a lessee, the grant should enure in favour of the plaintiff by reason of the principle in S.90 of the Indian Trusts Act. Counsel for the contesting respondents took up the position that the principle of S.90 of the Indian Trusts Act is unavailable in regard to the grant of patta to Kandukrishi lands. On their behalf it was further contended that, in any event, they are entitled to the benefits of the Kerala Land Reforms Act I of 1964 and that a decree for recovery of possession could not be passed against them. 8. Before we examine the above contentions we may refer to the nature and character of Kandukrishi lands. 9. Counsel have taken us elaborately through the provisions of the Travancore Land Revenue Manual, Vol. II, page 326; Rules relating to Transfer of Registry etc., of Kandukrishi lands dated 8th March, 1934 and published at page 831 of the IInd supplement to the Travancore Land Revenue Manual Vol. II and the subsequent amendments to the rules; The Travancore Revenue Settlement Proclamation of 1061 (S. 28) and Travancore Land Revenue Manual Vol. III, pages 15 and 16 (paras 23 and 24). We think it unnecessary to extract from the authorities so cited. Two things appear clear to us from these authorities and from the judicial decisions to which our attention has been drawn, namely, (1) that the occupant or cultivator of Kandukrishi lands is regarded as a tenant-at-will; and (2) that it is an absolute right of the Government to grant patta in respect of Kandukrishi land to whomsoever it pleases, and such grant will extinguish all prior rights of the occupant. 10. To say that a grant of patta in respect of Kandukrishi lands would extinguish all antecedent rights of the occupant, seems to us to be a far cry from stating that the principle of S.90 of the Indian Trusts Act can never be made applicable to such grant. 10. To say that a grant of patta in respect of Kandukrishi lands would extinguish all antecedent rights of the occupant, seems to us to be a far cry from stating that the principle of S.90 of the Indian Trusts Act can never be made applicable to such grant. Neither on principle, nor on the authorities which we have surveyed and to which we will presently make reference, have we found anything to support such an extreme proposition. If an occupant of Kandukrishi land has let into possession a tenant, and the tenant by availing himself of his character as tenant and in derogation of the rights of his landlord could obtain a patta in his favour, we fail to see why the principle of S.90 of the Trusts Act should not apply. 11. S.90 of the Indian Trusts Act may, here, be conveniently extracted. It reads: "Where a tenant for life, co-owner, mortgagee, or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted in gaining such advantage". 12. Counsel appearing for the contesting respondents argued that the Indian Trusts Act was made applicable to the State of Travancore-Cochin only on and from 1-4-1951 by the Part B States (Laws) Act, 1951 and that S.90 cannot proprio vigore apply to the area with which we are concerned in this appeal. The argument is of little assistance, as, it has been held in a number of decisions that S.90 of the Trusts Act embodies a principle of justice, equity and good conscience which is of universal application (see for instance the decision in Parameshwar Rai v. R.P. Sinha AIR. 1935 Pat. 360). The decisions of the Travancore High Court to which our attention has been drawn and which will be referred to presently also proceed on the same footing. . 13. 1935 Pat. 360). The decisions of the Travancore High Court to which our attention has been drawn and which will be referred to presently also proceed on the same footing. . 13. Analysing then, the principle underlying S.90 of the Trusts Act in relation to the facts of the present case, there are 4 ingredients to be satisfied before the doctrine of constructive trust embodied in the section could be applied against the first defendant, (1) that he was a qualified owner; (2) that he availed himself of his position as such; (3) that he gained an advantage; and (4) that such advantage was gained in derogation of the rights of the plaintiff. 14. Giving the matter our best attention, we are satisfied that all the ingredients stand made out in the present case. A perusal of Para.2 to 4 of the plaint and the discussion and conclusion of the court below on issue (1) in Para.4 of its judgment, with which we agree, are sufficient to satisfy us that the first defendant was holding property as a lessee, notwithstanding the death of the lessor, Sankara Pillai who had only a life interest. That a lessee is a qualified owner within the meaning of S.90 of the Trusts Act has been held in the decision in AIR. 1935 Pat. 360 (cited supra). 15. That an advantage was gained does not admit of any controversy in view of the grant of patta evidenced by Ex. XIX. 16. Was the advantage gained by availing himself of his character as lessee? - is the next question. We have heard counsel at length on this question, but a perusal of Ex. 19 leaves no doubt in our mind that the primary and predominant consideration which weighed with the authorities in the grant of patta was the possession under the lease Ex. II. We are, therefore of the opinion that the grant was obtained by the first defendant by availing himself of his character as lessee. What applies to the first defendant would also apply to the 2nd defendant, because the application for patta was made pending the suit O.S. 108/1116, and at the time of making the application, possession was with the first defendant. 17. The last and final ingredient is that the advantage must have been gained in derogation of the rights of the plaintiff in this case. 17. The last and final ingredient is that the advantage must have been gained in derogation of the rights of the plaintiff in this case. That leads to two questions: had the plaintiff any rights in the property?: and if so, was the advantage gained by the first defendant in derogation of such rights? We have carefully surveyed the Manuals and the judicial decisions which have been placed before us by counsel. In some of the earlier authorities it is stated that the occupant of Kandukrishi lands has no rights of any kind in the lands cultivated by him (See S.28 of the Revenue Settlement Proclamation of 1061; the Travancore Land Revenue Manual Vol. 3, pages 15 and 16, Para.23 and 24). We think it unnecessary to trace the evolution of the rights of the occupant of Kandukrishi lands in any detail, in view of some of the judicial pronouncements, to which we proceed to refer. 18. In Subramonian Kesavan Empran v. Krishnan Govindan Plappalli (22 TLJ. 968 at p. 976 (F.B.) it is stated as follows: "This being the correct position in regard to tenancies-at-will generally, the position is stronger in respect of Kandukrishi lands, for as the Full Bench observed in 33 T.L.R. 242, such tenants are "according to the traditional policy of the Crown of not capriciously disturbing possession, left to enjoy Kandukrishi lands for generations" and their rights have except so far as regards the liability to eviction at the will of the Sirkar been always regarded as valuable property. It is therefore not possible to hold that the tenant of such lands has no right or interest at all in them as contended by the respondent's learned Vakil." Again at page 980 of the same decision it is stated: "It is therefore impossible to hold that he holds these lands as a mere tenant-at-will with no powers of disposal at all over them." In an earlier decision, Official Receiver, Alleppey District Court v. Umbichi Aiyisha Veevi (17 T.L.J. 879 at p. 883) occurs the following passage: "The policy adopted in such matters thus seems to be towards recognising alienations by way of mortgages and leases with regard to Kandukrishi pattern lands". The lands involved in the present case are Kandukrishi pattom lands and from the decisions cited above it seems clear to us that the rights of the occupant of such lands constitute "valuable property". The lands involved in the present case are Kandukrishi pattom lands and from the decisions cited above it seems clear to us that the rights of the occupant of such lands constitute "valuable property". If the result of the grant of patta in respect of such lands is to extinguish antecedent rights of the occupant, we are clear that such grant can only be in derogation of the rights of the occupant. 19. There is again another aspect of the matter. In the present case the plaintiff's predecessor as the Kandukrishi occupant of the lands had placed the first defendant in possession as a lessee under Ex-II. The plaintiff, therefore, had the right to evict the tenant and issuance of the patta to the first defendant seems to us to be in derogation of the said right to evict. The last ingredient of the doctrine of constructive trust also stands satisfied. 20. While it seems difficult, if not impossible, to resist the applicability of the doctrine of constructive trust to a grant of patta in respect of Kandukrishi lands, we may pause to examine whether there is anything in the judicial decisions on which considerable reliance has been placed by counsel for the contesting respondents, to compel a contrary conclusion. We proceed to examine these decisions. 21. The earliest of these decisions to which our attention was drawn is the case in Kanakku Raman Ananthan v. Chempakakutti Narayani (I. T.L. J. 334). Here the mortgagees of a and Kandukrishi land after an open contest with the mortgagor had obtained patta in their name and the question arose whether the said patta could enure in favour of the mortgagor by reason of the applicability of the doctrine of constructive trust. It was held: "It is only when the registry is effected in the name of the mortgagee by the mortgagee taking advantage of his status and peculiar position as mortgagee that the mortgagor can claim the benefit of it. Such is not the case here. Kandukrishi lands can be registered in the name of any person by the Sirkar, and it is only by accident that in this particular case the registry happened to be in the mortgagee's name. It might have been in the name of any other person", (underlining ours) 22. Such is not the case here. Kandukrishi lands can be registered in the name of any person by the Sirkar, and it is only by accident that in this particular case the registry happened to be in the mortgagee's name. It might have been in the name of any other person", (underlining ours) 22. The words underlined by us above seem to clearly imply that the doctrine of constructive trust is applicable on principle to Kandukrishi lands, but it stood excluded on the actual facts. 23. The next decision cited to us is Narayanan Sankaranarayanan Panicker v. Narayanan Kunjoo Pillay (1. T.L.J. 358 F.B.). In Para.4 of the decision, there is a reference to the earlier ruling at 1 T.L.J. 334 (cited supra) as having held registry of Kandukrishi lands in the name of the mortgagee does not enure for the benefit of the mortgagor. We do not see how this observation can advance the matter any further. 24. In Parameswaran Govindan v. Ouseph Geevarghese Kathanar (29 TLR.100) there is this significant sentence: "It is not contended before us that the Sirkar granted the registry to the defendant or that the latter took the registry for the benefit of the plaintiff." 25. The decision in Ouseph Abraham v. Kuncheria Kuncheria (6 T.L.T. 959 F.B.) was strongly pressed upon us. On the actual facts we are not satisfied that there was any question of a limited owner taking advantage of his position as such. 26. In Gnanabharanam Kuthiam v. Soosamuthu Naryaviswasam Nadar (1947 T.L.R. 558 at page 561), it is expressly observed: "As the grant was made to the tenant, not by virtue of the lease, not on behalf of his landlord as well, expressly or by implication of law, but on the top of an open contest before the revenue authorities in which the lessor had the worst of it, the grant of the land to the first defendant on kuthakapattom was not burdened by any equity which compels the defendant to hold the grant on behalf of his quondum landlord" The decision, therefore, has no application. 27. Counsel for the contesting respondents cited to us the decisions in Kumarankari Devaswam v. Uthuppu Chacko (1960 KLT. 800); Beni Per shad Koeri v. Chaturi Tewary (ILR. 33 Cal. 444): Dattatraya Sitaram Kulkarni v. Shankar Mahadji Kulkarni (AIR. 1938 Born. 250); Abdul Rahman v. Haji Mohamed Idris (AIR. 27. Counsel for the contesting respondents cited to us the decisions in Kumarankari Devaswam v. Uthuppu Chacko (1960 KLT. 800); Beni Per shad Koeri v. Chaturi Tewary (ILR. 33 Cal. 444): Dattatraya Sitaram Kulkarni v. Shankar Mahadji Kulkarni (AIR. 1938 Born. 250); Abdul Rahman v. Haji Mohamed Idris (AIR. 1929 Sind 212 at p. 214 and 215); Uttamchand Nanghirmal v. Satamatrai Khubchand (AIR. 1931 Sind 27) Mi Asha v. Jogendra Lal Cheodhary (AIR. 1921 P. C. 135) and Mohin Chandra Sarkar v. Anil Bandhu Adhicary (1 I.C. 66). 28. We think it unnecessary to refer to or discuss these decisions in any detail, as we have found nothing of any great assistance in them. 29. We would refer to the decision of the Full Bench of the Travancore-Cochin High Court in Chandi Avira v. Thomman Varkey (1951 KLT. 7), where, in respect of Cherikkal lands the doctrine of constructive trust was applied to puduval registry. We have found it difficult to deny the applicability of the principle of that decision to Kandukrishi lands. 30. We are, therefore, of the opinion that both on principle and on authority, the doctrine of constructive trust, or the principle underlying S.90 of the Indian Trusts Act is applicable to a grant of patta in respect of Kandukrishi lands in the present case. So applying the principle to the facts of this case, we entertain no doubt that the grant of patta evidenced by Ex. XIX ought to enure in favour of the plaintiff. 31. The result is that the plaintiff is entitled to maintain a suit for recovery against the defendants. But the principle of S.90 of the Indian Trusts Act requires that the advantage so gained will enure in favour of persons like the plaintiff only "subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted in gaining such advantage." This is a matter on which there has been no investigation by the court below, and we would accordingly remit the matter to that court for such investigation. 32. At this stage, on behalf of the defendants-respondents we have been pressed with the provisions of the Kerala Act 1 of 1964, and it has been argued that under the proviso to S.3(1) of the Act the defendants-respondents are entitled to fixity of tenure. 32. At this stage, on behalf of the defendants-respondents we have been pressed with the provisions of the Kerala Act 1 of 1964, and it has been argued that under the proviso to S.3(1) of the Act the defendants-respondents are entitled to fixity of tenure. The said proviso reads: "Provided that in the case of kandukrishi lands sub-leased by a tenant holding such lands under the Government, the provisions of S.13 to 26 shall, so long as the lease granted by the Government subsists, apply to the tenants holding under the sub-lease as they apply to tenants holding lands other than Government lands." 33. It is also claimed on behalf of the appellant that he is a "small holder" as defined in S.2 (52) of the Act, entitled to evict the respondents. S.2 (52) reads: "'small holder' means a landlord who does not have interest in land exceeding eight standard acres or twenty-four acres in extent, whichever is less, as owner, intermediary, or cultivating tenant, or in two or more of the above capacities, so however that the extent of non-resumable land in his possession as owner, or as cultivating tenant, or partly as owner and partly as cultivating tenant, does not exceed (i) four standard acres; or (ii) four acres in extent, whichever is greater. Explanation - For the purposes of this clause, a person who was in possession of, or had interest in, land exceeding the limits specified in this clause immediately before the 18th December, 1957, but such extent of land was reduced to the said limits or below by partition or transfer effected after the date mentioned above, shall not be deemed to be a small holder; nor shall such partition or transfer entitle the allottee or transferee to exercise the rights of a smallholder in respect of the land allotted or transferred to him." 34. We are not inclined to evaluate these contentions at this stage. It would be open to the parties to move the court below for appropriate reliefs, if so advised, under the provisions of the Kerala Act 1 of 1964. 35. We hold that the grant of patta under Ex-XIX enures for the benefit of the plaintiff. We are not inclined to evaluate these contentions at this stage. It would be open to the parties to move the court below for appropriate reliefs, if so advised, under the provisions of the Kerala Act 1 of 1964. 35. We hold that the grant of patta under Ex-XIX enures for the benefit of the plaintiff. On the said finding we set aside the decree of the court below and remit the matter to that court for investigation of the following questions: (1) The adjustment of the equities, if any, as between the plaintiff and the defendants as contemplated by the principle of S.90 of the Indian Trusts Act referred to supra; (ii) The rights of the parties, if any, under the provisions of the Kerala Act 1 of 1964. Parties will be at liberty to adduce such fresh evidence as they deem fit. 36. The findings of the lower court on issues 2 and 7 are confirmed. The appeal is disposed of as above. Parties will bear their costs both here and in the court below. Memorandum of cross objections is dismissed without costs. Allowed.