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1980 DIGILAW 156 (KER)

TRAVANCORE DEVASWOM BOARD v. KRISHNAN

1980-07-18

V.KHALID

body1980
Judgment :- 1. The Travancore Devaswom Board represented by its Secretary is the petitioner in this Civil Revision Petition, which arises from O. S. No.17 of 1957. The property belonged to Thruppukuttaro Devaswom. There was a grant in favour of Chittazhathu tarwad under the Service Inam Proclamation of 1068. The grantee had to perform services in the temple. The karnavan of that tarwad one Neelakandan transferred the rights of the tarwad in the property as per Ex. A3 pattapanayadharam on 30-1-1095 to one Threasia, who assigned her right in the property to the predecessor-in-interest of the respondents herein on 16-3-1098. Since Ext. A3 was contrary to the stipulations in the grant, Devaswom authorities threatened action. Knowing this, the grantee took proceedings for resumption of the property from the plaintiff by filing a petition for resumption before the Government of Travancore. The Government of Travancore allowed resumption of the property. The plaintiff filed an appeal before the Devaswom Board against this order of resumption. That appeal was dismissed by the Board as per order dated 6-9-1954. The plaintiff, who was the predecessor-in-interest of the present respondents, filed O. S. No. 17 of 1957 challenging the validity of the order of the Devaswom Board The order of the Board was upheld by the trial court but it was observed that the suit property could be recovered from the plaintiff only in execution after payment of the value of improvements The Board filed an appeal against that portion of the decree which granted value of improvements to the plaintiff. The plaintiff filed a cross-appeal. This Court dismissed both the appeal and the cross-appeal and confirmed the judgment of the Sub Court. Thereafter E. P. No. 12! of 1969 was filed for recovery of possession of the suit property on payment of value of improvements in accordance with the directions in the decree. The plaintiff then objected to the execution stating that he was entitled to the benefits of S.7B and 13 of the Kerala Land Reforms Act. The plaintiff died during the pendency of the application and the respondents who are his legal representatives were impleaded. 2. The execution Court held by its order dated 1 11 1977 that the plaintiff was a deemed tenant within the meaning of S.7B(1) of the Kerala Land Reforms Act, (hereinafter referred to as the Act) and therefore not liable to be evicted. Hence this revision. 3. 2. The execution Court held by its order dated 1 11 1977 that the plaintiff was a deemed tenant within the meaning of S.7B(1) of the Kerala Land Reforms Act, (hereinafter referred to as the Act) and therefore not liable to be evicted. Hence this revision. 3. The revision petitioner's counsel put forward two submissions before me; one, that Ext. A3, which is the document in question, is not a lease but only an alienation as found by this Court in appeal, that this finding is binding on all parties and that therefore S.7 B cannot be invoked by the respondents. The second submission is that if Ext. A3 is held to be a lease, then that is exempted by S.3(l)(vi) of the Act, for. it is a lease granted by a person having only a limited interest. The respondents' counsel met this submission with the plea that S.7B did not require that the document relied upon should evidence a lease. All that is necessary is that it should be a registered instrument purported to be a lease. Therefore notwithstanding the finding by this Court in appeal, a further examination of the document is permissible. In answer to the case built on S.3(l)(vi) of the Act, it was contended that S.3 was controlled by S.7B. 4. I will consider both these submissions separately. It was in A. S. No. 626 of 1960 that this Court observed as follows on Ext. A3: "The respondent is a transferee from the original tenure-holder; and the recitals in the document of transfer, as rightly pointed out by the lower court, show that the transfer was not a mere lease but amounted to an alienation. If so, the Board was right in resuming the land..." It is necessary to note that this Court was very guarded in describing Ext. A3. What is stated is that Ext. A3 is "not a mere lease", but "amounted to an alienation".It is not categorically stated that Ext. A3 is not a lease. The guarded manner in which Ext. A3 has been characterised by this Court assumes importance, when this finding has to be considered in the context of S.7B What S.7B says is not that the registered document on which benefit is claimed should be a lease but that it should purport to be a lease. The phraseology used in the section is deliberate. A3 has been characterised by this Court assumes importance, when this finding has to be considered in the context of S.7B What S.7B says is not that the registered document on which benefit is claimed should be a lease but that it should purport to be a lease. The phraseology used in the section is deliberate. The object is to save documents which are not leases but which bear some resemblance to a lease. Parties may create documents, the legal effects of which are not that of a lease, under the guise of a lease. In certain cases, a close analysis of the document may lead to the conclusion that it is not a lease. But if it bears the outer garment of a lease, then it is protected The document in question is described as a Pattapanayadharam. It is a composite document; pattadharam and panayadharam. On a close scrutiny of the various recitals in the document it can be seen that those recitals partake in some measure of the nature of lease also.Therefore, it cannot be said that it is an alienation simpliciter.That is why this Court while considering the nature of Ext. A3 was constrained to observe that it is not a "mere lease" but "amounts to an alienation." The word 'purport' means outward appearance, guise, as conveying an impression etc. The use of this word widens the jurisdiction of the Court in granting relief to a party who invokes S.7B. The finding of this court cannot bind the parries, for, S 7B contains a non-obstante clause that a party claiming its benefits will be entitled to put forward a claim notwithstanding anything contained to the contrary in any law, or in any judgment. On the wording of S.7B therefore the respondents are justified in submitting that Ext. A3 is a document which purports to be a lease. 5. The second contention is that if Ext. A3 is a lease deed, that is exempted by S.3 of the Act. It cannot be disputed that Neelakandan and his tarwad had only limited right under the grant since on its terms the tenure could be terminated either when the tenure-holder ceases to perform the services or when he alienates the property. The second contention is that if Ext. A3 is a lease deed, that is exempted by S.3 of the Act. It cannot be disputed that Neelakandan and his tarwad had only limited right under the grant since on its terms the tenure could be terminated either when the tenure-holder ceases to perform the services or when he alienates the property. What is contended on the strength of S.3 (1)(vi) is that all tenancies in respect of land or buildings or of both created by persons having only life interest or other limited interest are exempted from the provisions of Chapter II. The petitioner's counsel would submit that this exemption would prevail even if the tenant of a limited owner or tenancies created by such limited owner had been in possession for any length of time. This does not appear to be correct. What S.3 (1) (vi) exempts is tenancies created by life-interest holder or other limited interest bolder. In a suit for recovery of possession from a tenant inducted into possession by a limited owner, the tenant cannot resist the action if he is not able to prove possession for the various grounds mentioned in different sections creating deemed tenancies. But if such a tenant satisfies that he was in occupation of the land of another at the commencement of the Amendment Act of 1969, i.e., on 1 1 1970, and that he or his predecessor was inoccupation of the land on the 11th day April, 1957 on the strength of a registered lease deed purporting to be a lease deed, he will be entitled to fixity of tenure notwithstanding the fact that the land was given by a person who had no right over the land or who was not competent to lease the land. Under S.2 (57) of the Act, a deemed tenant under S.7 B is also a tenant. If the petitioner's submission is to be accepted, then the tenancy created by a limited owner or a life-interest owner has to fail whatever be the length of the period such a tenant was in possession. This overlooks the safeguards given in S 7B. Unlike S.3 (1) (vi) S.7B protects tenants not only from limited owners but even leases granted by a person who had no right over the land or who was not competent to lease the land. This overlooks the safeguards given in S 7B. Unlike S.3 (1) (vi) S.7B protects tenants not only from limited owners but even leases granted by a person who had no right over the land or who was not competent to lease the land. I therefore hold that S.3(1) (vi) has to be read subject to S.7B. Else S.7B would be rendered inoperative. In the result, I bold that the Court below was correct in holding that the respondents are entitled to the protection under S.7 B of the Act, I dismiss the Civil Revision Petition, but direct the parties to bear their costs. Dismissed.