KOCHU LAKSHMI v. VELAYUDHAN — 1980 DIGILAW 258 (KER)

Judgment :- 1. The appeal is against the decision of the Subordinate Judge's Court, Trivandrum in L. A. R No 36 of 1974, relating to apportionment of compensation in respect of 15.87 Ares of land acquired from out of Sy. Nos. 1930/1 and 1932/1 of Chengazhassery Village. The extent acquired from Sy No. 1930/1 is 5.12 Ares and from Sy. No. 1932/1 is 10.75 Ares. The total compensation in deposit in the civil court for the purpose of apportionment among the rival, claimants is Rs. 11,343 81. The contest is between claimants 2,5 and 6 on the one hand, and claimants 1, 7, 8 and 9 on the other. Claimants 3 and 4 support claimants 2, 5 and 6, and claim their share of compensation separately 2. Claimants 11 and 12 represent the rival jenmies in respect of the property. They have filed a statement that adjudication of their respective claims inter se need not be done in these proceedings as a suit is pending in respect of their claim to the jenmom title, and the question as to who is entitled to the jenmom rights will be decided in that suit. 3. The question for consideration therefore relates to the claim of tenancy between the rival claimants in this reference. It is the admitted case of all the parties that the property belonged in jenmom to Chithumaia Bhagavathi Elankom Temple and that Kaliarnbi Narayanan had pankuvaram right in respect of this property Ext. BI dated 16-2-1101 is the document under which this property and other items were held by Kalinambi Narayanan. The acquired property is included in the B schedule to Ext. BI and shows it was a pankuvaram arrange ment for a period of one year. It is also seen that Narayanan had paid 1050 fanams as premium to the Jenmi at the time when the property was granted on pankuvaram. Narayanan died in 1959, after the commencement of the Hindu Succession Act. His legal heirs are claimant No. 2 his second wife, claimants 5.6 and deceased Velayudhan, his three sons and claimants 3 and 4 his daughters. Claimants 5 and 6 are the sons of Narayanan and the 2nd claimant. Claimants 3 and 4 and deceased Velayudhan are the children of Narayanan in his first wife, Narayanan Velayudhan also died in 1969. The 7th claimant is his wife and claimants, 1, 8 and 9 are his children. Claimants 5 and 6 are the sons of Narayanan and the 2nd claimant. Claimants 3 and 4 and deceased Velayudhan are the children of Narayanan in his first wife, Narayanan Velayudhan also died in 1969. The 7th claimant is his wife and claimants, 1, 8 and 9 are his children. According to claimants 2,5 and 6 and also claimants 3 and 4 who support them, the compensation in respect of the tenancy right in the property is to be apportioned among the wife and all the children of deceased Kaliambi Narayanan as the tenancy belonged to him and on his death devolved on his wife and children. This claim to compensation is opposed by claimants 1.7,8 and 9, the legal representatives of Narayanan Velayudhan. According to them on the death of Kaliambi Narayanan the property was lying fallow for about three months and there was a fresh oral engagement by the jenmi in favour of Narayanan Velayudhan. He was a tenant in respect of the property and on bis death in 1969 the tenancy rights devolved on his legal heirs who are claimants 1, 7,8 and 9. They had applied to the Land Tribunal, Trivandrum for the assignment of the landlord's rights in respect of these properties and had obtained the purchase certificates Exts. Al and A2 dated 13-11-1975 relating to the aforesaid two survey numbers. Exts. Al and A2 are conclusive in regard to their absolute title to the property and the entire amount of compensation should be paid to them. The court below accepting Exts. Al and A2, held that the property by virtue of these certificates of purchase vests absolutely in claimants 1, 7, 8 and 9 and they are entitled to the entire compensation in respect of the property. There is a further direction in the judgment for deposit of Rs. 3037.50 being the balance compensation due to the jenmies in respect of the property covered by the purchase certificate Ext. A2. It is also found that the entire compensation under the Land Reforms Act with respect to Ext Al purchase certificate had been paid by these claimants. They had paid one instalment of Rs 202.50 towards the compensation due to the jenmi in respect of the second item covered by Ext. A2 purchase certificate. It is against this decision of the lower court that claimants 2, 5 and 6 have filed the above appeal. 4. They had paid one instalment of Rs 202.50 towards the compensation due to the jenmi in respect of the second item covered by Ext. A2 purchase certificate. It is against this decision of the lower court that claimants 2, 5 and 6 have filed the above appeal. 4. The question for consideration is therefore as to who among the claimants are entitled to the compensation in respect of the land acquired. All parties admit that the property was held by Kaliambi Narayanan as per Ext. BI of the year 1101 and he was in possession of the property until his death in 1959. Ext. BI shows that he had also paid a sum of 1050 fanams by way of security for due payment of rent to the jenmi. It is no doubt true that the arrangement under Ext. BI in respect of the acquired property was only a pankuvaram, but as admitted by all parties Narayanan continued in possession till his death in 1959 at a time when Kerala Act I of 1957 was in force As per the provisions of the said Act it was not possible for the landlord to evict even pankuvaram tenants during the pendency of the Act. The operation of the Act continued until the Agrarian Relations Act was passed in 1961. This was later replaced by the Kerala Land Reforms Act 1 of 1964. Under these Acts, a pankuvaramdar in possession is a tenant entitled to fixity of tenure. Therefore on the death of Kaliambi Narayanan his tenancy right in respect of the property devolved on his legal heirs viz, claimants 2 to 6 and deceased Velayudhan. As against this the claim of the contesting claimants viz claimants 1.7,8 and 9 is that on the death of Narayanan the property was not cultivated for two or three months and thereafter there was a fresh engagement by the jenmi by way of lease to Velayudhan. This separate lease to Velayudhan is not proved in this case According to these claimants it was an oral arrangement under which Velayudhan got the property under a lease from the Devaswom No person on behalf or the jenmi has been examined to prove the oral lease. There is only the oral evidence of CW.1 the first claimant in support of the case of a fresh engagement to Velayudhan He has admitted Narayanan's possession till his death in 1959. There is only the oral evidence of CW.1 the first claimant in support of the case of a fresh engagement to Velayudhan He has admitted Narayanan's possession till his death in 1959. The contesting respondents rely on the award passed by the Land Acquisition Officer in which he refers to certain tax receipts etc. in the name of Velayudhan. These receipts are not produced before the lower court, and are not in evidence in the case. Even the award shows that the receipts produced before the Land Acquisition Officer were all relating to periods after the death of Narayanan. The possession of Velayudhan after the father's death in the absence of proof of a surrender of Ext. Bl lease, can only be on behalf of the legal heirs of Narayanan. There is no proof of surrender of Ext. Bl. Nor is there any acceptable evidence of a fresh engagement to Velayudhan. CW.1 the first claimant does not show as to what adjustment was made in respect of the premium of 1050 fanams paid by Narayanan at the time of Ext. Bl engagement. In the circumstances we have no hesitation to hold that the fresh lease to Velayudhan from the jenmi set up by claimants 1, 7, 8 and 9 is not proved in this case. The result of this finding is that the tenancy rights in the property belonged to Narayanan and on his death devolved on all his legal heirs, claimants 2 to 6 and deceased Velayudhan. 5. There is a further contention raised by Sri. Paripoornan learned Counsel for the contesting respondents and that is Sy. No 1930/1 is not seen included in Ext. Bl lease in favour of Narayanan It is true that this survey number is not seen specifically mentioned in the document The property acquired from this survey number was held by Narayanan as per Ext Bl was not a matter in controversy before the court below. The first claimant examined as CW 1 in his evidence has specifically admitted the tenancy of Narayanan in respect of both the items acquired and his possession until his death in 1959. We have therefore to reject this argument of the learned Counsel that no part of Sy. No. 1930/1 is included in Ext. Bl. 6. The further contention on behalf of the contesting respondents is that on account of Exts. We have therefore to reject this argument of the learned Counsel that no part of Sy. No. 1930/1 is included in Ext. Bl. 6. The further contention on behalf of the contesting respondents is that on account of Exts. Al and A2 purchase certificates issued by the Land Tribunal, Trivandrum in favour of claimants 1,7,8 and 9 they are absolutely entitled to the property by virtue of the provisions of the Kerala Land Reforms Act As per S.72 of the Act, on the date notified by the Government all right, title and interest of the landowners and intermediaries in respect of the holdings held by cultivating tenants entitled to fixity of tenure under S.13 of the Act shall subject to the provisions of the Section vest in the Government free from all encumbrances created by the landowners and intermediaries. A cultivating tenant is defined in S.2 (8) of the Act to mean a tenant who is in actual possession of and is entitled to cultivate, the land comprised in his holding. The expression 'tenant' is defined in S 2 (57) to mean any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land, and includes various types of persons mentioned in the definition. S.72B of the Act provides that a cultivating tenant of any holding or part of a holding the right, title and interest in respect of which have vested in the Government under S.72, shall be entitled to assignment of such right, title and interest. Sub-section (3) of S.72B provides for an application by the cultivating tenant to the Land Tribunal within whose jurisdiction such holding is situated for assignment of the rights of the landlords and intermediaries vested in the Government; and sub-section (4) of the said Section provides for particulars to be furnished in an application for assignment of the landlord's rights by the cultivating tenants. S.72F provides for the procedure of the Land Tribunal on an application under S.72B or under S.72BB as per which the landowner or intermediary may apply for assignment of his rights to the tenant and for compensation. Sub-sections (1), (2) and (3) of S.72F are in the following terms: "S. 72F Land Tribunal to issue notices and determine the compensation and purchase price. Sub-sections (1), (2) and (3) of S.72F are in the following terms: "S. 72F Land Tribunal to issue notices and determine the compensation and purchase price. (1) As soon as may be after the right, title and interest of the landowner and the intermediaries if any, in respect of a holding or part of a holding have vested in the Government under S.72, or, where an application under S.72B (or S.72BB) has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form (in such manner) as may be prescribed, calling upon (a) the landowner, the intermediaries, if any, and the cultivating tenant; and (b) all other persons interested in the land, the right, title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice and to appear before it on the date specified is the notice with all relevant records to prove their respective claims or in support of their objections. (2) The Land Tribunal shall also issue a notice individually to the landowner, each of the intermediaries and the cultivating tenant and also, as far as practicable to the other persons referred to in clause (b) of sub-section (1) calling upon them to prefer claims and objections if any within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections. (3) Notwithstanding anything contained in sub-section (2), the publication of a notice (in the manner referred to in sub-section (1)) shall be deemed to be sufficient notice to the landowner, the intermediaries, if any, the cultivating tenant and all other persons interested in the land." Sub-section (5) of S.72F provides for an enquiry by the Land Tribunal on the claims and objections received in pursuance to the notice under subsection (1) or sub-section (2) and the matters to be decided by the Land Tribunal after such enquiry as is contemplated by the said sub-section. S.72F provides for the assignment of the landlord's rights by mutual consent of the cultivating tenant and the landlord. S.72F provides for the assignment of the landlord's rights by mutual consent of the cultivating tenant and the landlord. S.72K, sub-sections (I) and (2) are in the following terms: 72K. Issue of certificate of purchase (1) As soon as may be after the determination of the purchase price under S.72P (or the passing of an order under sub-section (3) of S.72F) the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries if any. Explanation. For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights, including rights if any, in respect of trees reserved for his enjoyment shall stand extinguished. (2) The certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates." 7. It is clear from the provisions of S.72K that only on the issue of a certificate of purchase to the cultivating tenant, the right, title and interest of the landlord and the intermediaries if any, in respect of the holding to which the certificate relates vest in the cultivating tenant free from all encumbrances created by the landlord or the intermediaries. The explanation to sub-section (I) of S 72K makes it further clear that on the issue of a certificate of purchase to the cultivating tenant, the landlord or intermediaries shall cease to have any right in the property Sub-section (2) of S.72K states that the certificate of purchase shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries if any, over the holding to which the certificate relates. 8. 8. From these provisions of the Act, it is clear that what those provisions provide for is only for the extinguishment of the rights of the landlords and intermediaries in respect of the holding and the vesting of the same in the cultivating tenant. These provisions are intended to achieve a social purpose of abolition of landlordism and to vest the proprietorship of the land in the cultivating tenant. 9. The Explanation to S 72 K makes it further clear that the purpose of these provisions of the Act, is only to confer proprietorship of the soil on the cultivating tenant. S 72F does not contemplate the determination of a question of contest between rival claimants to tenancy and for assignment of the landlord's rights Sub-section (4) of S.72-B provides for the particulars to be contained in an application for assignment which among other things require only the names and addresses of the landowner and intermediaries and also every other person interested in the land and the nature of their interest so far as they are known to the applicant. Sub-section (5) of S.72F which provides for the matters to be enquired into by the Land Tribunal requires the Tribunal to pass an order specifying only such matters as are mentioned therein, and that does not include a dispute inter se among cultivating tenants, and a decision on such dispute by the Land Tribunal. Disputes inter se among cultivating tenants is not a matter for determination of the Land Tribunal in an enquiry regarding the vesting of rights of the landlord and the intermediaries in the cultivating tenant by the issue of a purchase certificate to him. The Kerala Land Reforms (Vesting and Assignment) R.1970 also do not provide for the determination of any such question. R.9 and 10 are extracted below. "9. Dispute about tenancy or vesting. The Kerala Land Reforms (Vesting and Assignment) R.1970 also do not provide for the determination of any such question. R.9 and 10 are extracted below. "9. Dispute about tenancy or vesting. (1) Whereafter the publication of the public notice under sub-section (1) of S.72-F and the service of the individual notice under sub-section (2) of that section in respect of a holding, any of the parties to the proceedings pleads that the land comprised in such holding is not held by any cultivating tenant or that the right, title and interest of the landowner and the intermediaries in respect of such holding have not vested in the Government, the Land Tribunal shall decide such question as a preliminary point and pass an order thereon with reasons for such order. (2) Where the order under sub-rule (1) is that such land is not held by any cultivating tenant or that such right, title and interest have not vested in the Government, the Land Tribunal shall forthwith reject the application referred to in R.4 or discontinue the proceedings referred to in R.5 and such order for rejection or discontinuance, as the case may be, shall be deemed to be an order under S.72F for all purposes of the Act. 10. Further proceedings for assignment and determination of compensation, purchase price, etc. (1) Where in any proceedings for the assignment of the right, title and interest of the landowner and intermediaries in respect of a holding vested in the Government, to the cultivating tenant, there is no dispute of the nature referred to in sub-rule (I) of R.9, or, where there is such a dispute, the Land Tribunal has ordered that the holding is held by a cultivating tenant or that the right, title and interest of the landowner and intermediaries have vested in the Government, as the case may be, the Land Tribunal shall, after perusal and consideration, of the application, if any, referred to in R.4. the information referred to in R.5, the written statement, if any, filed by the parties, other documentary evidence, if any, produced and the report, if any, of the officer appointed under S.105A and after such further enquiries as it may deem necessary and after giving a reasonable opportunity of being heard to all the persons to whom individual notices have been issued under sub-section (2) of S.72F, and to the other persons who have preferred claims and objections and appeared before the Tribunal in pursuance of the notice issued under sub-section (1) of that section, pass an order under sub-section (5) of the said section: Provided that the order on a dispute referred to in, sub-rule (1) of R.9 shall not be reviewed by the Land Tribunal. (2) The Land Tribunal shall before passing the order under sub-section (5) of S.72F ascertain from persons claiming to be cultivating tenants, in case they appear before it, as to whether they opt to pay the purchase price in a lump." The Rules contemplate only the determination of the question by the Land Tribunal as to whether the land is held by any cultivating tenant or whether the right, title and interest of the landowner and the intermediaries have vested in the Government, on such question being raised by any of the parties to the proceedings. The certificate of purchase issued by the Land Tribunal shall be conclusive proof of assignment to the tenant of the right, title and interest of the landowner and intermediaries over the holding to which the assignment relates. As to who else other than the applicant is also entitled to the tenancy right in common with the applicant is not a matter for decision by the Land Tribunal. It should therefore be held that the purchase certificates Exts Aland A2 issued in favour of claimants 1, 7, 8 and 9 should ensure for the benefit also of the other co-owners viz claimants 2 to 6, being the other legal heirs of the cultivating tenant Kaliambi Narayanan. 10. A further argument is advanced by Sri Paripoornan, the learned Counsel for the contesting respondents that under S.72F (3) the publication of a notice in the manner referred to in sub-section (I) of S.72F shall be deemed to be sufficient notice to the appellants in the proceedings that culminated in the issue of the purchase certificates Exts. 10. A further argument is advanced by Sri Paripoornan, the learned Counsel for the contesting respondents that under S.72F (3) the publication of a notice in the manner referred to in sub-section (I) of S.72F shall be deemed to be sufficient notice to the appellants in the proceedings that culminated in the issue of the purchase certificates Exts. Al and A2 and therefore it is submitted that the appellants are also bound by the proceedings of the Land Tribunal that issued the purchase certificates and on the terms of the certificates themselves claimants 1, 7, 8 and 9 alone are the cultivating tenants and to whom alone the purchase certificates are issued. We have already held that Exts Al and A2 enure for the benefit of all the co-owners. That apart, the provisions of S.72F, sub-sections (I), (2) and (3) came up for consideration before a learned judge of this Court in Velappan v. Thomas (1979 KLT. 412). We extract Para.27 and 28 of the judgment reported in 1979 KLT. 412. "27. I feel constrained to make the following observations about S.72F. If S.72F(2) had stood by itself without its ambit being curtailed by S.72F(3), most of the difficulties that Courts experience in dealing with purchase certificates could have been avoided. It is the existence of S.72F(3) that contributes not only to the confusion but for various kinds of unhealthy, unwholesome and undesirable practices. S 72F(2) makes it mandatory on the Land Tribunal to issue notice individually and to all persons inter-sted in the land. The effect of this has been taken away by S.72F(3) by the introduction of a non-obstante clause which provides that notwithstanding anything contained in S.72F(2), the notice referred to in sub-section (1) shall be deemed to be sufficient notice to the landowner etc. In fact the effect of S.72F(2) is destroyed by S.72F(3). If S.72F (3) was properly and happily worded, giving power on the Land Tribunals to resort to this sub-section after being satisfied that notice as provided under S 72F(2), in a given case, was attempted to be served and that service was impracticable, then no complaint can be made against a purchase certificate. That is not how S.72 is used or misused. That is not how S.72 is used or misused. Land Tribunals now resort to S.72F(3) remedy, throwing to the winds all salutary principles of procedure and issue purchase certificates in quick succession, headless of the consequences and the havoc they cause. Cases are not rare when Land Tribunals have issued purchase certificates for the very same property to two rival claimants within an interval of short period. Therefore it is necessary to put a harmonious construction to S.72F(2) and (3) 28 According to me, it is necessary for Courts, with this sub-section 72F(3) on statute book, which cannot be struck down as being violative of natural justice, to read it down and to hold that it will come into operation only when individual notices contemplated in S.72F(2) becomes impracticable in the manner provided under the general law. Otherwise, the wide manner in which S.72F(3) is worded would give room for unscrupulous persons in charge of litigations and even Tribunals invested with the power to decide cases to resort to dishonest methods to secure orders dishonestly under circumstances with which can better be imagined than stated". We respectfully agree with this interpretation of sub-section (3) of S.72F and hold that the said sub-section shall have operation only after it is shown that individual notices contemplated in S 72F(2) have become impracticable and that the applicant had taken steps for service of such individual notices to the persons concerned. There is also another reason for the restricted interpretation of the provision of S.72F(3). Any person aggrieved by an order of the Land Tribunal under S.72F is given a right of appeal under S.102 of the Act to the Appellate Authority constituted under the Act. A right of appeal is available only to a party to the proceedings before the Land Tribunal. It is no doubt true that even a non-party can appeal with the leave of the Appellate Authority, but such right of appeal as is provided by the Statute is rendered dependent upon the leave of the Appellate Authority even when the rights of persons not eo nomine parties are affected by the order of the Land tribunal. If the order of the Land Tribunal affects a non-party and his right of appeal is dependent on the leave of the Appellate Authority it can certainly be held that the right of appeal conferred by S.102 of the Act, is considerably curtailed. If the order of the Land Tribunal affects a non-party and his right of appeal is dependent on the leave of the Appellate Authority it can certainly be held that the right of appeal conferred by S.102 of the Act, is considerably curtailed. For this reason also it should be held that the provisions of sub-section (3) of S.72F can be held applicable only in cases where it is shown that individual notices under sub-section (2) of S.72F had been attempted and failed or otherwise become impracticable. 11. For the foregoing reasons, we bold that the Landlord's rights vested as per Exts.Al and A2 shall enure for the benefit of all the co-owners by virtue of S.90 of the Indian Trusts Act and that claimants 1, 7, 8 and 9 hold the certificates of purchase Exts. Al and A2 on behalf also of claimants 2 to 6. 12. The second claimant died pending the appeal before this Court. Hence her 1/6 share devolved on her children claimants 5 and 6. Claimants 5 and 6 will therefore be entitled to 3/6 share of the compensation deposited in Court. Claimants 3 and 4 are entitled to 1/6 share each, and claimants 1, 7, 8 and 9 together will be entitled to 1/6 share that would fall to the shares of deceased Velayudhan as one of the legal heirs of Kaliambi Narayanan. It is further seen from the judgment of the courts below that claimants 1, 7, 8 and 9 had paid the entire compensation due under the purchase certificate Ext. Al and had also paid part of the compensation due to the landlord under Ext. A2. A sum of Rs. 3037.50 is still due for payment to the landlord for the vesting of their rights under Ext. A2. Claimants 1, 7, 8 and 9 are entitled to reimbursement of the compensation deposited by them over and above the amount that is due on their 1/6 share. The other sharers are in law bound to reimburse claimants 1, 7, 8 and 9 in proportion to their shares as declared above. The balance compensation due to the jenmi as per Ext. A2 will also be provided for and safeguarded from the amount in deposit in the court below. The other sharers are in law bound to reimburse claimants 1, 7, 8 and 9 in proportion to their shares as declared above. The balance compensation due to the jenmi as per Ext. A2 will also be provided for and safeguarded from the amount in deposit in the court below. The case is therefore remitted back to the lower court for determination of the proportionate liability of claimants 2 to 6 in respect of the compensation paid by claimants 1, 7, 8 and 9 as per the purchase certificates Exts. Al and A2 and also to make provision from out of the amount in deposit for the balance amount of compensation due to the jenmi as per Ext. A2 The appeal is accordingly allowed and the case is remanded back to the lower court for disposal in accordance with law and in the light of the observations and directions contained in this judgment. We make no order as to costs. Parties are to appear before the court below on 10-11-1980 Allowed. Leave to appeal to the Supreme Court is asked for. We are not satisfied that any substantial question of law of general importance which in our opinion calls for a decision by the Supreme Court arises in this case. Leave refused.