AHAMMED v. MOIDEEN — 1974 DIGILAW 73 (KER)

Judgment :- S. A. No. 958 of 1966. 1. Judgment in the above Second Appeal was delivered by a Division Bench of this Court on 27th October, 1970. C.M.P. No. 4525 of 1974 was moved for review of judgment. This was allowed by us yesterday on the ground that the petitioner did not, and could not, earlier have an opportunity of urging his claim for relief under S.7 and 7B of the Kerala Land Reforms Act, Act I of 1964. It is this claim that has been urged before us at the re-hearing of the Second Appeal which was proceeded with yesterday, immediately after allowing the application for review. 2. The suit out of which the Second Appeal arises was one for redemption of a mortgage and recovery of possession. The 6th defendant in the suit is the appellant in the Second Appeal. The mortgage sought to be redeemed was Ext. B-1 dated 18 71946. By Ext. B-8 dated 10 81952 the Ist defendant assigned his mortgage right to the 3rd defendant. The 3rd defendant assigned his rights to the 5th defendant, whose legal representatives are defendants 7 to 9. By Ext. B-16 dated 3111952 the 3rd defendant leased the property to the 4th defendant. By that time the suit for redemption of Ext.B-1 mortgage had been instituted on 26 61952 in a Court, which was eventually found to have no jurisdiction to entertain the suit, and the suit for that reason, was directed to be presented in the proper court. The present suit was accordingly filed only in 1955. After the suit was instituted in the proper court, the 4th defendant assigned his leasehold rights to the 6th defendant by Ext.B-127 dated 26 61957. In the suit, the 8th defendant, as the assignee of the rights of the 4th defendant, claimed that he is entitled to fixity of tenure under S.45 of the Malabar Tenancy Act. Both the courts below held that Ext. B-16 lease was not a prudent transaction, which was within the power of the mortgagee to grant. They also expressed themselves that the transaction was collusive and entered into for preventing the plaintiffs from recovering possession. This is found stated in Para.33 of the trial court's judgment, and in Para.44 and 45 of the lower appellate court's judgment. B-16 lease was not a prudent transaction, which was within the power of the mortgagee to grant. They also expressed themselves that the transaction was collusive and entered into for preventing the plaintiffs from recovering possession. This is found stated in Para.33 of the trial court's judgment, and in Para.44 and 45 of the lower appellate court's judgment. When this matter was dealt with by the Division Bench of this Court on the earlier occasion, this Court also found that the transaction was fraudulent and collusive. 3. As we are re-hearing the matter, we have gone into the matter afresh. We think there is enough to sustain the observations made by the trial court and by the lower appellate court that Ext. B-16 lease, which, by assignment vested in the 6th defendant, was a collusive transaction. We are inclined to gather this from the circumstance that the lease was executed, as noticed earlier, subsequent to the institution of the suit for redemption and recovery of possession, although in the wrong court, on 26 61952. Added to this, are certain other circumstances. The 5th defendant, who was the assignee of the rights of the 3rd defendant, is the father-in-law of the 6th defendant, the assignee of the leasehold rights under the 4th defendant. The 4th defendant himself is the uncle's son of the 3rd defendant. The relationship between the parties has been noticed in Para.44 of the lower appellate court's judgment. As a result of the assignments and transfers, we find that while the father-in-law retained the interest of the mortgagee, the son-in-law, the 6th defendant, became entitled to the rights of the lessee under the mortgagee. We also notice that the property was of a fairly extensive area, nearly six acres in extent, with 499 bearing coconut trees and 97 arecanut trees, besides other fruit bearing trees. The rent stipulated under the lease deed was only Rs. 120/-which has been found by the courts below to be low. In view of these considerations and circumstances, we think that the courts below were justified in finding that the transaction evidenced by Ext. B-16, assigned by Ext. B-127 to the 6th defendant, after the institution of the suit in the proper court was a collusive transaction. 4. The subsequent conduct in this litigation also seems to emphasise the collusive nature of the transaction. B-16, assigned by Ext. B-127 to the 6th defendant, after the institution of the suit in the proper court was a collusive transaction. 4. The subsequent conduct in this litigation also seems to emphasise the collusive nature of the transaction. After the disposal of the Second Appeal, the mortgagee's legal representatives, defendants 8 and 9 filed I. A. 1585 of 1972 to reopen the decree under S.108 of the Land Reforms Act. This was dismissed and CRP. 197 of 1973 against the same was also dismissed by this Court. CMP. 2908 of 1973 was filed in this Court, again by defendants 8 and 9, claiming relief under S.108 of the Land Reforms Act. This was also dismissed. The 6th defendant filed I. A. 1331 of 1973 in the court below under S.108 of the Act, which was also dismissed. Thereafter, the 6th defendant filed CMP. 4525 of 1974 to re-open the decree and judgment in the Second Appeal. After the arguments were proceeded with for some time in this C.M.P., as a matter of caution, the 6th defendant filed an application for review of judgment, which we have allowed, and that is how the Second Appeal happened to be re-heard. The cycle of applications and proceedings is not altogether inconsistent with the waiting and watching game as between the 5th and 6th defendants. 5. In the Second Appeal itself, the question agitated is whether the appellant, the 6th defendant, is entitled to relief under S.7 and 7B (1) of the Land Reforms Act. For convenience, these sections in so far as necessary, may be quoted: 7. Certain persons occupying land honestly believing to be tenants, to be deemed tenants: Notwithstanding anything to the contrary contained in S.52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar shall be deemed to be a tenant if he or his predecessor¬in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967. Explanation: Notwithstanding anything contained in the Indian Evidence Act, 1872, where a person has been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant. 7-B. Certain persons occupying lands under leases granted by incompetent persons to be deemed tenants: (1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment decree or order of court, any person in occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant if he or his predecessor-in-interest was in occupation of such land on the 11th day of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who had no right over the land or who was not competent to lease the land". We do not think that S.7 can apply to the facts disclosed. True, the Section operates notwithstanding anything contained in S.52 of the Transfer of Property Act. But we think that the appellant's having obtained the assignment of the lease in his favour after the institution of the suit in the proper court, and his assignors having obtained his lease after the suit for redemption was instituted in a wrong court, may properly be taken into account in gauging the honest belief of the appellant referred to in the Section, On the facts, which have been sufficiently high-lighted, we are unable to hold that the appellant can be regarded as having been continuously in occupation from the period contemplated by the Section with the requisite honest belief. The Explanation to S.7 was relied on; but, as pointed out by a Full Bench of this Court in Narayanan Asan Thankappan Asari v. Ammukutty (1973 KLT. 444), no doubt in dealing with the proviso to S.2 (25) of the Act, more or less to the same effect, the presumption raised by the Explanation can apply only if the fact of occupation and the continuance in possession for the requisite period alone, are made out, and nothing more appears. 444), no doubt in dealing with the proviso to S.2 (25) of the Act, more or less to the same effect, the presumption raised by the Explanation can apply only if the fact of occupation and the continuance in possession for the requisite period alone, are made out, and nothing more appears. In this case, on the facts noticed by us, we think that there is clear enough evidence to show that the occupation even for the requisite period cannot be regarded or presumed to be under the honest belief that the appellant was a tenant. We therefore negative the claim for protection under S.7 of the Act. 6. We next come to S.7B (1). What was stressed before us was that it would be enough to show that there was a registered deed purporting to be a lease deed and that in pursuance of the same the appellant or his predecessor-in-interest was in occupation of the land on the 11th day of April 1957 and on 111970. It was stressed that it did not make any difference whether the person who granted the lease had no right over the land or was not competent to lease the land. While these two infirmities are specifically got rid of by the Section, we think that to accept the appellant's contention would be to take too narrow a view of the Section. We do not think that the Section was intended to protect collusive transactions, meant as a cloak to cover their real nature and purpose. In the instant case from the background of the facts, and the relationship between the parties, we are satisfied that the so-called lease in favour of the 4th defendant, assigned to the 6th defendant, was nothing more than a mere cloak for covering up the sinister design of making it appear that possession had passed from the mortgagee to the lessee. Such a transaction cannot, and is not, intended to be protected by S.7B of the Act. 7. Counsel for the appellant argued that this would be opposed to the finding of the trial court and the lower appellate court, both of which had found that defendants 4 and 6 were in possession of the property, and had awarded value of improvements separately to each of them, and to the mortgagee who had granted the lease which devolved ultimately on the 6th defendant. These, we are afraid, cannot be conclusive circumstances, to show that the transaction was not a collusive one. For, it makes little difference to the mortgagor if the totality of the value of improvements that he has to pay for, is paid to one, or spread over between two or more. We think, from the circumstances which we have referred to earlier, that the effect of the finding and the consideration as to possession and improvements, has been more than satisfactorily displaced. There was, at no time, any contest as between the mortgagee and the lessee in regard to the nature and character of the possession of the property. That alone would have brought to light the real question as to whether the transaction of lease by the mortgagee was a collusive one or not. On the facts and material before us, we are of the opinion that the transaction was collusive, and the courts below rightly found it to be so. 8. Counsel for the respondent relied on S.3 Clause (v) read with S.3, Clause (vii) of the Land Reforms Act, and contended that the combined effect and operation of these clauses would be to exclude a lease of the type granted to the 4th defendant and assigned to the 6th defendant, from the scope and operation of the terms of the Act relating to fixity of tenure. In the view that we have taken, we consider it unnecessary to deal with this contention and express no views on the same. 9. We dismiss the Second Appeal with costs. C. M. P. 4525 of 1974 in S. A. 958 of 1966. 10. In view of the fact that the Second Appeal itself was re-heard after allowing the application for review, this C. M. P. was not pressed. It is accordingly dismissed. No order as to costs. C. R. P. 216 of 1974. This is against the order passed in I. A. No. 1331 of 1973 which has been referred to in the course of the judgment in Second Appeal No. 958 of 1966. We are unable to find any jurisdictional error which warrants interference. We dismiss this C. R. P., but in the circumstances, without costs. Dismissed.