PATHU v. MAMMAD — 1985 DIGILAW 299 (KER)

Judgment :- 1. learned single judge of this Court has referred these cases to Division Bench "to resolve the apparent conflict between the decision by Eradi J. in 1974 K.L.T. 286 and Poti J. in 1980 K.L.T. 854" and in view of the fact that "the decision by Eradi J. is seen doubted by a Division Bench of this Court in A.S.A. No.3 of 1971 (1974 K.L.T. S.N. 23)". 2. Revision petitioner in the C.R.P. is the first respondent in the second appeal. First appellant in the second appeal daughter of Ibrayi, filed a suit O.S.257 of 1964 in the Munsiff's Court, Payyoli for partition and separation of her 7/72 share in the suit property on the allegation that the property belonged to her deceased father Ibrayi and on his death, she has inherited a share. She also challenged registered lease deed (Ext.B7) marked in the suit executed by her brother, third defendant, in favour of her brother-in-law, 7th defendant and contended that she is entitled to partition free from the claims under the lease deed. Second defendant is the widow, defendants 3.4 and 6 are sons and plaintiff and defendants 1 and 5 are daughters of Ibrayi. Third defendant remained exparte in the suit. Defendants 1,2 and 4 to 6 supported the plaintiff and claimed their own shares. Seventh defendant contended that the lease deed is valid and binding on all the parties, that the property belonged to the puthravakasam thavazhi of the defendants of which third defendant was the karanavan and the lease deed executed by the karnavan is binding on all the members of the family. He also contended that the lease was granted with the consent of all the other sharers. He further contended that in the event of eviction he is entitled to value of improvements. Trial court held that the property did not belong to any puthravakasam thavazhi as alleged but that the property was inherited by the widow and children of Ibrayi as co-heirs, that the third defendant had no representative capacity to grant the lease, that the lease was not consented to by the co-owners and was not valid and binding on the co-owners except the third defendant. Issues 5 and 6 relating to improvements and equity were left open and preliminary decree was passed directing partition and separation of plaintiff's share and declaring that the lease deed is not binding on any of the co-owners' except the third defendant. Appellate Court confirmed the decree but held that the seventh defendant is entitled to value of improvements and directed quantum to be assessed in the final decree proceedings. Second appeal filed by the seventh defendant was dismissed but with a direction that claim of the seventh defendant that he is a deemed tenant as contemplated in S.7B of Kerala Land Reforms Act 1/1964 (for short'the K.L.R. Act') would be decided before final decree is passed. 3. Plaintiff filed application for passing final decree. Seventh defendant filed I.A. 1072/1975 pleading that he is adeemed tenant as contemplated in S.7B of the KLR Act and contending that the decree should be reopened. Application was opposed by all the sharers except third defendant (they are the appellants in the second appeal). Trial court held that the lease transaction is fishy and came about in a fraudulent atmosphere and that seventh defendant cannot be said to be a person holding possession honestly believing himself to be tenant as contemplated in the decision of this Court in Kaliyannan v. Narasimha Iyer 1974 K L.T. 286. The Court held that seventh defendant is entitled to protection under S.7B of the KLR Act and accordingly dismissed the petition. Order was challenged before the appellate court which reversed the decision and held that the seventh defendant is entitled to the benefit of protection under S.7B. Appellate Judgment is challenged in second appeal. 4. Meanwhile, seventh defendant filed O.A.778/1975 seeking to purchase landlord's right in the property and claiming to be "deemed tenant" under S.7B. Application was opposed by the co-owners and was dismissed by the Land Tribunal. In appeal, appellate authority reversed the decision and allowed the O.A. upholding the claim of the seventh defendant. Appellate judgment is challenged in the revision petition. 5. Only question which arises for consideration in these cases is whether seventh defendant is a deemed tenant as contemplated in S.7B of the K.L.R. Act. In appeal, appellate authority reversed the decision and allowed the O.A. upholding the claim of the seventh defendant. Appellate judgment is challenged in the revision petition. 5. Only question which arises for consideration in these cases is whether seventh defendant is a deemed tenant as contemplated in S.7B of the K.L.R. Act. Sub-s. (1) of S.7B reads as follows: "(1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgement, decree or order of court, any person in occupation of the land of another at the commencement of the land 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." 6. Sub-s. (1) of S.7B begins with a non-obstante clause. Conditions to be satisfied under the section are (a) the person claiming benefit of the section should be in occupation of land of another (b) he should be in occupation on the date of the commencement of KLR (Amendment) Act, 1969, that is, 1-1-1970 (c) such occupation should be on the basis of a registered deed purporting to be a lease deed and (d) such person or his predecessor-in-interest was in occupation of the land on 11-4-1957 on the basis of that deed. If the above conditions are satisfied, such a person shall be deemed to be tenant notwithstanding the fact either (1) that the lease was granted by a person who had no right over the land or (2) that the lease was granted by a person who was not competent to lease the land. There has been no contention at any stage of the litigation that the lease deed (Ext. B7) has not taken effect or that the seventh defendant did not get possession. We think it is accepted that the seventh defendant was in possession of the suit property on 11-4-1957 as well as on 1-1-1970. There has been no contention at any stage of the litigation that the lease deed (Ext. B7) has not taken effect or that the seventh defendant did not get possession. We think it is accepted that the seventh defendant was in possession of the suit property on 11-4-1957 as well as on 1-1-1970. Appellate Court which disposed of the appeal against preliminary judgment found that seventh defendant was in possession on the strength of the lease deed and held that he was entitled to value of improvements. It is not contended before us that possession of the seventh defendant has not been on the basis of the registered lease deed. In the suit, trial court as well as the two appellate courts concurrently held that the lease deed was executed by only one of the several co-owners viz, third defendant, that he had not obtained consent of the other co-owners in granting the lease and therefore the lease was not valid and binding on the other co-owners. It cannot be said that the executant of the lease deed, third defendant, had no right over the land. He had co-ownership right over the land; but it can certainly be said that he was not competent to lease the land. He might be competent to lease his share in the land but he was not competent to lease the land. Prima facie, it would appear that all the conditions contemplated under S.7B of the KLR Act are satisfied in the instant case. 7. According to learned counsel for the appellants, person claiming benefit of S.7B(1) of the Act should have an honest belief that he is a tenant and the transaction should not be collusive. In support of this argument, learned counsel places reliance on the decisions of this Court in Kaliyannan's case (1974 K.L.T. 286) and Ahammed v. Moideen & Others (1974 K.L.T. 549). The reference order suggests that the decision in Ayisomma v. Abdul Rahiman, (1980 K.L.T. 854) is in conflict with the decision in Kaliyannan's case and the latter has been doubted by a Division Bench of this Court in A S.A. No. 3/1971 (1974 K.L.T. Short Notes 23). 8. Sub-section (1) of S.7B of the KLR Act requires, inter alia, that occupation contemplated therein should be on the basis of a registered deed purporting to be a lease deed. 8. Sub-section (1) of S.7B of the KLR Act requires, inter alia, that occupation contemplated therein should be on the basis of a registered deed purporting to be a lease deed. On this aspect, we are unable to find any conflict between the decisions in Kaliyannan's case and Ayisomma's case. In Kaliyannan's case, the person claiming benefit under S.7B of the KLR Act contended that he was inducted into possession under an oral lease on 6-2-1951 by the second respondent and that the second respondent subsequently executed a registered lease deed dated 20-6-1951. The oral lease was found to be untrue and the registered lease deed was found to be invalid and as not conveying any right. Since, according to the party, occupation commenced on the basis of an oral lease and not on the basis of a registered lease and since the oral lease was found to be false, the Court concluded that the occupation originated from trespass. A person who occupied a land by trespass and thereafter purported to take a registered deed from another who is not competent or has no right whatever to grant the same will not attract the operation of S.7B of the KLR Act. In Ayisomma's case, facts were different. One half of the property belonged to first defendant's thavazhi and the other half belonged to predecessors of plaintiffs. One Chathan took lease of both the halves and transferred his right to one Nani. Thereafter, first defendant granted a melcharthu. Second defendant obtained a decree and took possession of the entire property in execution of the decree. Subsequently, plaintiffs filed the suit for partition and separation of their half share from the second defendant. Second defendant claimed protection under S.7B (1) of the KLR Act. One of the contentions urged against the claim was that second defendant did not get possession under the melcharthu, a registered document, which was said to attract the operation of S.7B of the KLR Act but that he got possession independently and therefore it could not be said that the second defendant was in occupation on the basis of a registered document. This argument was repelled by the Court pointing out that occupation commenced not independent of the registered document but in pursuance of the registered document and on the basis of a decree obtained on the strength of the terms of the registered document. This argument was repelled by the Court pointing out that occupation commenced not independent of the registered document but in pursuance of the registered document and on the basis of a decree obtained on the strength of the terms of the registered document. In such a case, the Court opined that occupation could be said to be on the basis of the registered document, 9. So far as the question decided in Ayisomma's case is concerned, we find no conflict between that decision and the decision in Kaliyannan's case. In Kaliyannan's case, possession was alleged to originate from an oral lease which was held to be false and no party had a contention that possession arose on the strength of a registered deed. The two decisions were rendered on totally different sets of facts and involve no conflict. The more material question which arises for consideration is whether a person claiming benefit under sub-section (1) of S.7B of the KLR Act is obliged to allege and prove that he entered upon the land bona fide or that the Court should be satisfied that there was no collusion between the grantor and the grantee. 10. It is worthwhile to examine the facts in Kaliyannan's case. There was a suit for partition by first respondent against the second respondent in 1951. Preliminary and final decrees were passed in due course. In execution, delivery was ordered and the revision petitioner obstructed delivery claiming leasehold right. According to him, second respondent had orally leased the property to him on 6-2-1951 and subsequently executed a registered lease deed on 20-6-1951. Petition to remove the obstruction was dismissed. Thereupon, first respondent filed the suit to set aside the order. Suit was dismissed by the trial court. In appeal, the suit was decreed. Pending second appeal, the KLR Act came into force and the obstructor claimed benefit of S.7 of the Act as well as S.2(c) of Act 5/1969 (substantially corresponding to S.7B (1) incorporated in the KLR Act subsequently). His contentions were overruled. Thereafter, S.7B was incorporated in the KLR Act. Thereupon, he filed an application for reviewing the order of delivery seeking protection under S.7 and 7B of the K.L.R. Act. Petition having been dismissed, he filed revision before this Court. His claim was rejected by this Court. His contentions were overruled. Thereafter, S.7B was incorporated in the KLR Act. Thereupon, he filed an application for reviewing the order of delivery seeking protection under S.7 and 7B of the K.L.R. Act. Petition having been dismissed, he filed revision before this Court. His claim was rejected by this Court. His claim under S.7 was rejected on the ground that since he set up a specific lease and failed to establish the plea, he cannot turn round and contend that he should be treated as deemed tenant under S.7. Considering his claim under under S.7B, the court noticed that he cannot be said to be a person in occupation on the basis of a registered deed and since the earlier oral lease set up by him was false, the occupation originated from trespass. A person who has occupied a land by trespass and has thereafter purported to take a registered deed from another who is incompetent or had no right whatever to grant the same will not attract the operation of S.7B. Reasoning of the learned judge is as follows: "The said section is obviously intended to grant protection to persons who have bona fide entered upon the land on the basis of a document of lease granted in their favour by another who is ultimately found to be not competent to grant the lease, for which turn of events the grantee cannot be held responsible. The basic assumption underlying the said section is the absence of any collusion between the grantor and the grantee and the existence of bona fides on the part of the grantee even though the expression 'bona fide' has not been specifically employed in the said section. The intention of the legislature is perfectly clear and the section has been introduced into the Act only with a view to grant protection to persons who may be in occupation of the lands belonging to others under documents purporting to be leases but which, for some technical or legal reasons, may ultimately be found to be lacking in validity but not in bona fides." (emphasis supplied) 11. A Division Bench of this Court had occasion to consider S.7B(1) of the K.L.R. Act in Ahammed v. Moideen & Others (1974 K.L.T. 549). Suit for redemption of a mortgage was originally filed in 1952 and it was re-presented in the proper court in 1955. A Division Bench of this Court had occasion to consider S.7B(1) of the K.L.R. Act in Ahammed v. Moideen & Others (1974 K.L.T. 549). Suit for redemption of a mortgage was originally filed in 1952 and it was re-presented in the proper court in 1955. The grantee-assignee granted a lease to the fourth defendant a few months after the original institution of the suit and the fourth defendant assigned his right to the sixth defendant who claimed benefit of S.45 of the Malabar Tenancy Act. It was held that the lease was not a proper transaction and the grantee had no right to grant the lease. It was further held that the lease was collusively entered into for preventing the plaintiff from getting possession. The conclusion was affirmed in second appeal holding that the lease was fraudulent and collusive. Thereafter C.M.P. was moved before the court for review of the judgment and to consider the claim for relief under S.7 and 7B of the K.L.R. Act. Relief was denied by the court. Relief under S.7 was denied on the ground that in the circumstances sixth defendant cannot be regarded as having been in occupation during the requisite period with requisite honest belief, and the fact displaced the presumption mentioned in the proviso to S.7. It was argued before the Division Bench that all that S.7B requires is occupation on the relevant dates on the basis of a registered deed and nothing else. The Division Bench observed: "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." (emphasis supplied) The Court held that the transaction in question was collusive. 12. The decision in A.S.A. 3/1971 was rendered by a Division Bench of this Court. Property involved in the suit belonged to first defendant and his sister. Such a transaction cannot, and is not, intended to be protected by S.7B of the Act." (emphasis supplied) The Court held that the transaction in question was collusive. 12. The decision in A.S.A. 3/1971 was rendered by a Division Bench of this Court. Property involved in the suit belonged to first defendant and his sister. First defendant executed a lease deed in favour of the fourth defendant, husband of the first defendant. The lease was challenged in the partition suit. In second appeal, it was held that the lease was not a genuine transaction and was intended to defeat the co-owners' rights. Final decree was passed in due course. Appellate Court rejected the claim put forward under Ss 7 and 7B of the KLR Act. Second appeal was dismissed in limine in view of the decision of a Full Bench of this Court in Chami Chettiar v. Thirumandham Kunnu Bhagavathi Devaswom (1970 KLT 897) striking down these sections. After the statute was incorporated in Schedule IX of the Constitution of India, fourth defendant approached the Court claiming protection under S.7 and 7B. Application under S.7 was rejected on the ground that the possesssion claimed was not bona fide. The Division Bench observed: "person claiming the benefit of the section must be in possession under a registered document. It is not sufficient if there was a registered document and there was possession also. The possession must be under the document. That is how the section is worded. The document may be invalid because the executant may not be solely entitled to the property or may otherwise be incompetent to execute the document. Nevertheless the protection under the section will arise because in such cases, normally, the possession claimed is under the registered document. But there can be cases where registered documents are executed not with any intention of creating any rights or even for passing possession, but for other purposes. There are, therefore documents which are termed sham and documents which are benami under which no rights were intended to pass whether it be of title or possession. But there can be cases where registered documents are executed not with any intention of creating any rights or even for passing possession, but for other purposes. There are, therefore documents which are termed sham and documents which are benami under which no rights were intended to pass whether it be of title or possession. It will be too much to expect that the legislature intended that even in such cases, the protection under the S.7B must be available nor is such an interpretation justified by the wording of the section which in specific terms insists possession 'under a registered document'." After referring to the observations of the learned single judge in Kaliyannan's case regarding the need for bona fides and absence of collusion, the Division Bench observed: "With respect we must say that we are not certain that the insistence on bona fides when the section is silent on the matter will be a correct interpretation of the section. But we are in entire agreement with the observation in the judgment just read, that the basic assumption underlying the section is the absence of any collusion between the grantor and the grantee." On the facts, the Court held that it was a clear case of collusion between defendants 1 and 4 viz., wife and husband and the collusion was for the purpose of defeating the rights of the wife's sister and her descendants The Court also held that the husband's possession was not under the document and he must have been in possession even before the document was created and the document was taken by him from his wife only 'as a device to provide an armour' the claim of his wife's sister and children. On the conclusion that possession of the husband was not under registered document, Division Bench overruled the contentions of the fourth defendant. 13. The observations in Kaliyannan's case that the section is intended to grant protection to persons who have 'bona fide' entered upon the land has been definitely disapproved by a Division Bench of this Court in A. S.A. 3/1971. S.7B does not specifically state that the person claiming the benefit thereof must have occupied or continued his occupation "bona fide" or "honestly believing himself to be a tenant". Absence of such expressions in S.7B (i) cannot be said to be without significance, particularly when we consider the provisions of S.7. S.7B does not specifically state that the person claiming the benefit thereof must have occupied or continued his occupation "bona fide" or "honestly believing himself to be a tenant". Absence of such expressions in S.7B (i) cannot be said to be without significance, particularly when we consider the provisions of S.7. S.7 in effect states that a person in occupation on 1-1-1970 of the land of another situated in Malabar shall be deemed to be a tenant if he or his predeccssor-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 12 years immediately preceding 11-4-1957. The Explanation lays down the presumption in favour of such a person. We do not think the court would be justified in reading into S.7B a condition or a term which the Legislature did not think fit to incorporate. We therefore hold that S.7B does not require the person who claims the protection thereof to prove that he entered upon the land "bona fide". 14. Kaliyannan's case further lays down that the basic assumption underlying S.7B (i) is the "absence of any collusion" between the grantor and the grantee. However, connotation of the expression "collusion" has not been explained in that decision. But this principle has been laid down in consideration of the facts of the case which clearly showed that the person concerned was in fact a trespasser and the registered deed was brought about by the grantor and the grantee in collusion. The Division Bench in Ahamed's case also took the view that the section was not intended to protect collusive transactions. Court explained the connotation of the expression "collusive transaction". According to the Court, collusive transactions are "those meant as a cloak to cover their real nature and purpose". In that case, it was found that the document was a mere cloak for covering up the sinister design of making it appear that possession had passed from the grantor to the grantee. In A.S.A.3/1971 another Division Bench took the same view in regard to collusive transactions. According to the court, cases where registered documents are executed not with any intention of creating any rights or even for passing possession cannot be comprehended within the terms of S.7B. In A.S.A.3/1971 another Division Bench took the same view in regard to collusive transactions. According to the court, cases where registered documents are executed not with any intention of creating any rights or even for passing possession cannot be comprehended within the terms of S.7B. On the facts, it was held that the grantee was not put in possession under the registered document but was in possession even before the document was created and the document was only meant "as a devise to provide an armour" to the claim of other sharers. 15. The Supreme Court in Nagubai v. B. Shama Rao (AIR 1956 SC 593) while explaining the difference between a "collusive proceeding" and a "fraudulent proceeding" observed: "In such a proceeding (collusive), the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties... While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest." Collusion means a secret and deceitful arrangement for illegal purposes with the object of depriving another of his rights. 16. Collusion implies deceitful arrangement or agreement entered into as a cloak to cover the real nature and purpose of the parties and to provide an armour against the claim of another. Viewed in this light, if a document is collusive it cannot be said that possession passed or was intended to pass from the lessor to the lessee under that document. 17. Question which arises for consideration is whether Ext. B7 registered lease deed is collusive in that sense? Recitals of the document and other evidence would show that possession passed thereunder from the lessor to the lessee. In fact, the lessee put forward a claim for value of improvements effected by him and the claim was accepted by the Court which disposed of the appeal against the preliminary decree and judgment. Of course, the lessor was only one of the co-sharers. Among the co-sharers, he was the eldest male and must have been in management of the property. It was he who granted the lease though he did not have the competency to create a lease in regard to the share of others. Of course, the lessor was only one of the co-sharers. Among the co-sharers, he was the eldest male and must have been in management of the property. It was he who granted the lease though he did not have the competency to create a lease in regard to the share of others. But he was in a position to put the lessee in possession and did put the lessee in possession. The other sharers have no case that the transaction was a sham one or that it was a mere make-believe or a cloak or some sinister design of the parties. Observation of the trial court that the transaction is fishy and came about in a fraudulent atmosphere receive no support from the evidence or circumstances of the case. All the ingredients required under S.7B (1) are satisfied in the instant case. Seventh defendant was a person in occupation of the land of another (others) on 11-4-1957 on the basis of Ext. B7 registered lease deed and he continued to be in occupation of the land on that basis on 1-1-1970 and subsequently. Under the general law, the lease cannot be accepted in regard to the co-owners who did not join the lease deed. That it is a collusive transaction is not made out. In these circumstances, we affirm the decision of the learned Appellate Judge that seventh defendant is a deemed tenant under S.7B (1) of the KLR Act. It follows that S.A. 440/1979 is to be dismissed. We do so. C.R.P.2943/1980 is to be allowed and the order passed by the Land Tribunal in O.A 778/1975 has to be restored and the order of the Appellate Authority set aside. We do so. In the circumstances, parties will bear their costs in these proceedings.