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1976 DIGILAW 260 (KER)

SAROJINI AMMA v. SUMATHY AMMA

1976-12-01

GOPALAN NAMBIYAR, P.JANAKI AMMA

body1976
Judgment :- 1. The appeal is against the judgment of a learned judge of this court in S. A. No. 79 of 1974 The question that arose for consideration was whether the defendant who was the successful appellant in the Second Appeal can be regarded as a 'tenant' entitled to fixity of tenure under the Land Reforms Act. The suit was for redemption of a sub-mortgage Ext. A-1 dated 22nd September 1956 in respect of nearly 55 cents of paddy field. The two plaint items and others had been mortgaged in the year 1093 (not exhibited). A superior mortgage was granted in 1118 (not exhibited) to redeem the mortgage of 1093.0. S. No. 501 of 1119, Munsiff's Court, Nedumangad was filed by the superior mortgagee for redemption and was decreed (vide Ext. B-1 dated 21st December 1944). Instead of executing the decree, the superior mortgagee obtained a release of the rights of the mortgagee of 1093, and then, in his turn, surrendered his mortgage right to the jenmi under Ext. A-2 dated 16th May 1960. Before doing so, he had executed the plaint sub-mortgagee Ext. A-1 dated 22nd September 1956 in respect of the plaint items There was a provision in Ext. A-1 that a proportionate part of the michavaram payable by the mortgagee to the jenmi may be paid directly by the sub-mortgagee to the jenmi. The jenmi executed Ext. A-3 in 1968 to the plaintiff and others in respect of the plaint property. The rights under Ext. A-3 devolved on the plaintiff and accordingly the suit for redemption was brought. The trial court and the lower appellate court, negatived the defendant's plea for fixity of tenure; but the learned single judge in Second Appeal, reversed the decrees of the courts below and held that he is entitled to continue in possession by reason of the exception enacted by sub-clause (iv) to S, 3 (v) of the Land Reforms Act. The effect of the exception is that although generally a lessee under a mortgagee is disqualified from claiming fixity, that disqualification is removed it the mortgagee or his successor-in-interest has acquired or acquires the equity of redemption. 2. The learned judge also held that in view of the provision for payment of proportionate michavaram to the jenmi under Ext. A-1 the defendant would be a tenant. 3. 2. The learned judge also held that in view of the provision for payment of proportionate michavaram to the jenmi under Ext. A-1 the defendant would be a tenant. 3. We are unable to see how the requirements of exception (iv) to S.3 (v) of the Act stand made out There was no acquisition by the mortgagee or bis successor-in-interest of the equity of redemption Counsel for the respondent fairly stated before us that unless he established that he was a 'tenant' under S.2 (57) of the Act he would not be a tenant. It was argued that he would satisfy the definition of a 'tenant', as a person 'who has paid or agreed to pay rent for his being allowed to possess and enjoy the land'. The definition of the term'rent' under S.2 (49) includes 'michavaram'. The term'michavaram' is defined in S.2 (36). By reason of this definition, it was claimed, that the defendant could regard himself as a tenant within the body of the definition is S, 2 (57) of the Act. The definition of 'michavaram' in S.2 (36) reads: "'Michavaram' means the money or produce or both specified as michavaram in the document evidencing the transfer by a person of an interest in specific immovable property to another person, and includes the balance of money or produce or both payable periodically under the document evidencing such transfer after deducting from the money or produce or both due to the transferor, the interest due on the amount advanced to the transferor, but does not include customary dues." 4. We find it difficult to read and to interpret the above clause in the way in which counsel for the respondent would have us read and interpret. There is, in the definition, a main clause and an inclusive clause. The main clause requires only the specification of the payment as michavaram and nothing else. The inclusive clause requires the striking of a balance of money or produce or both payable periodically, after deducting from the money on produce or both due to the transferor the interest due on the amounts advanced to the transferee. 5. Our attention was called to a number of decisions which have expounded the scope of an inclusive clause in the definition. 5. Our attention was called to a number of decisions which have expounded the scope of an inclusive clause in the definition. It is enough for our purpose to refer to the decision of the Supreme Court in Commissioner of Income Tax, Andhra v. M/s Taj Mahal Hotel, Secundarabad AIR 1972 SC. 168 and to a Full Bench ruling of this court in Krishnan Nair v. Sivarama Namboodiri 1967 KLT. 78. As explained in the Full Bench ruling of this court, the inclusive clause may serve one of the three purposes: first, by way of illustration, second by way of enlargement or amplification; and third as a matter of abundant caution. We are unable to understand the inclusive clause in the definition in S.2 (36) as illustrative of the main clause. It is impossible to regard it so, as counsel for the respondent contended. The main clause requires a specification eo nomine of the payment as michavaram. The inclusive clause does not require any such specification, and brings in certain ingredients such as adjustment of rights and liabilities, and striking of the balance after such adjustment. Far from being illustrative of the main clause, the inclusive clause seems to be destructive of the main clause, in so far as it dispenses altogether with the only requirement in the main clause, of express specification of the payment as michavaram. Understood differently, it is restrictive of the main clause, in so far as it introduces the element of adjusting accounts and striking a balance. In Chori Ouso and others v. Sasoon Helegua and others 1968 KLT. 428 a Full Bench of this court referred to, and cited with approval, the decision of Justice Mc. Cardie in Mellows v. Low 1923 (1) K. B. 522 at 526. The following quotation from the judgment was approved: "In any view the word 'includes' as used in para (g) is not a term of limitation or precise definition; it means what it says - That it includes the matters thereafter mentioned; in otherwords, it is a word or enlargement rather than of restriction". We have considerable difficulty to understand the inclusive clause in S.2 clause (36) of the Act either as restrictive or as destructive of the main clause in the definition. We have considerable difficulty to understand the inclusive clause in S.2 clause (36) of the Act either as restrictive or as destructive of the main clause in the definition. We think that the words "after deducting from the money or produce or both due to the transferor -------- customary dues", should be tacked on both to the main clause and to the inclusive clause. This is only a matter of punctuation of the clause. Otherwise, on mere specification in the document, a payment which can never pass as michavaram, will have to be regarded as such. 6. We allow this appeal, set aside the judgment and decree of the learned Single Judge and restore the decree of the lower appellate court. The appellant will be entitled to his costs. Allowed.