Saraswathy v. The Official Receiver — 1990 DIGILAW 497 (KER)

JUDGMENT S. Padmanabhan, J. 1. Appellants are the obstructors, who failed before the execution court and the first appellate court. 2. The unfortunate litigation, which gave rise to these obstructions in execution, started in the year 1111 ME as O. S. No. 131 before the Subordinate Judge, Alappuzha. The suit was filed by Peethambaran Pillai, who was the Karanavan of Koithunni branch of Chakkumthara tharavad. The branch consisted of the thavazhies of Parvathi Kalyani and Parvathi Ichira. Peethambaran Pillai belonged to the first and the first defendant, Padmanabha Pillai, to the second. Though Padmanabha Pillai was a junior member of Koithunni branch, he was the senior member in the thavazhi of Ichira. Therefore, he was in possession of the properties allotted to that thavazhi for maintenance. When he unauthorisedly began to encumber and alienate the properties one after another, the suit was filed by the karanavan to remove him from management and to recover the properties after avoiding the alienations. The suit was ultimately decreed by this court in 1954 and a receiver was put in possession. Subsequently, the official receiver took over. 3. When execution was taken out to get delivery, the Amin was obstructed by several persons, including the appellants in the two second appeals or their predecessors. All the obstructions were considered together and disposed of by a common order. The application of the official receiver to get delivery after removal of all the obstructions was allowed. There were four appeals and cross objections in some of them. Cross objections related to kudikidappu rights allowed to some of the obstructors. All the appeals and cross objections were dismissed by a common judgment. Now, in these two second appeals, we are concerned only with the obstructions relating to 40 cents and 98 cents out of 3 acres 70 cents in Item No. 6 by the appellants in S. A. No. 13 of 1986 and Item No. 10 by the appellants in S. A. No. 13 of 1990, which was originally filed as a civil revision petition. Appellants in S. A. No. 13 of 1986 are claiming benefits under S.7B of the Kerala Land Reforms Act, on the basis of registered documents, and the appellants in S. A. No. 13 of 1990 under oral lease, coupled with surrender from another tenant. All the transactions were by the first defendant after the institution of the suit. Appellants in S. A. No. 13 of 1986 are claiming benefits under S.7B of the Kerala Land Reforms Act, on the basis of registered documents, and the appellants in S. A. No. 13 of 1990 under oral lease, coupled with surrender from another tenant. All the transactions were by the first defendant after the institution of the suit. All of them have obtained purchase orders and purchase certificates also from the Land Tribunal. These orders and certificates were also obtained after the institution of the suit. 4. The purchase orders and purchase certificates are not even worth considering. The karanavan or other members of the tharavad were not made parties and no notice was given to them. First defendant and his personal heirs alone were impleaded. The purchase orders and purchase certificates are not only collusive and obtained behind the back of the parties without contest and without impleading and giving notice to proper persons, but they were all obtained during the pendency of the litigation also. Explanation to Order XXI R.102 of the Code of Civil Procedure is also relevant in that connection. Therefore, these documents are only to be ignored. The oral tenancy claimed by the appellants in S. A. No. 13 of 1990 is unsupported, by any acceptable evidence also. 5. Therefore, the only claim worth considering is that under S.7-B by the appellants in S. A. No. 13 of 1986, They are the legal representatives of the fourth respondent in execution. Her husband (father of the appellants) is alleged to have had a lease of 1106 for 98 cents from the first defendant even before suit. But such a claim was not established. The fourth respondent's case was that she got a registered lease for the same property in 1113 from the first defendant. It is styled as a Nadappu panayadharam, which means mortgage. 40 cents is also claimed on the basis of such a registered document from the first defendant after suit. It is doubtful whether these documents could be treated as "purporting to be lease deeds" in order to attract S.7-B. So also, possession as on 1-1-1970, which is another requirement of S.7-B, is also said to be not there because in 1966, the official receiver took possession in execution. It is doubtful whether these documents could be treated as "purporting to be lease deeds" in order to attract S.7-B. So also, possession as on 1-1-1970, which is another requirement of S.7-B, is also said to be not there because in 1966, the official receiver took possession in execution. It is clear that these transactions were entered into by the 1st defendant after suit, when his actions were challenged and properties sought to be recovered from him after removing him from management and cancelling the documents executed by him. He was only a junior member having -possession only under a maintenance arrangement. After suit, he was a disgruntled member interested in placing the properties out of reach of the karanavan and other members, either out of vengeance or out of desire to secure the properties to himself or his personal heirs. The transactions are collusive and mala fide. But for these transactions, the properties could have been recovered in execution of the decree because when the suit was filed, the first defendant himself was in possession and he had no lawful excuse not to surrender. The question is whether pendente lite collusive lessees could be placed in a better position even if it be on the basis of claims under the Kerala Land Reforms Act having non obstante clauses. 6. Application of S.7-B is notwithstanding anything to the contrary contained in any law, etc. What is contained is only a general exclusion in contra-distinction to S.7, 7A and 7D, where the provisions of S.52 of the Transfer of Property Act are specifically excluded. A Division Bench of this court in Augusti v. Ramakrishna Panicker ( 1969 KLT 326 ) said that a lease hit by the rule of lis pendens is not saved by any of the provisions of the Kerala Land Reforms Act and that the right of a party to get recovery cannot be affected by such a lease because otherwise no suit could be brought to a successful end. Such a lease could be ignored. The same view was taken by another Division Bench in Parameswaran Thampi v. Podiyan Thomas ( 1984 KLT 397 ) dealing directly with S.7-B when it said that the land tribunal is as much bound by the rule of lis pendens just as it cannot deviate from the path of natural justice. Such a lease could be ignored. The same view was taken by another Division Bench in Parameswaran Thampi v. Podiyan Thomas ( 1984 KLT 397 ) dealing directly with S.7-B when it said that the land tribunal is as much bound by the rule of lis pendens just as it cannot deviate from the path of natural justice. Another Division Bench in Ahammed v. Moideen and others ( 1974 KLT 549 ) noted the distinction between S.7 and 7-B, so far as S.52 of the Transfer of Property Act is concerned, and said that even in a claim under S.7, where S.52 of the Transfer of Property Act is excluded, the fact that the lease was executed after suit could be taken into account in gauging the honest behalf that is required under S.7. So far as S.7-B is concerned, that decision said that collusive transactions meant as a cloak to cover the real nature and purpose cannot be intended to be protected under S.7-B. Another Division Bench decision in Pathu v. Mammad ( 1985 KLT 1059 ) agreed with that view, but said that S.7-B does not require proof of bona fides though collusive transactions are outside the purview of S.7-B. It is, therefore, clear that a claim under S.7-B is subject to the rule of lis pendens embodied in S.52 of the Transfer of Property Act. 7. Legislature must be presumed to be aware of judicial pronouncements on interpretation of statutes. From the mere fact that S.52 of the Transfer of Properly Act was specifically excluded in S.7, 7A and 7D while it was not excluded in S.7B, it is clear that the non obstante clause under S.7B was not intended to exclude the rule of lis pendens. Rule of lis pendens is based on a public policy. A transferee pendente lite shall not be in a better position than the defendant himself, who effected the transfer pending the suit. The purpose is to give finality to judicial pronouncements. The rule is also intended to cover cases of defendants purposely attempting to defeat the plaids of the plaintiff. Leases given after suit are outside the provision. 8. The general words "notwithstanding any law" cannot abrogate every rule of law intended to serve different purposes having no similarity or affinity to the purpose and object, for which the law was introduced. Leases given after suit are outside the provision. 8. The general words "notwithstanding any law" cannot abrogate every rule of law intended to serve different purposes having no similarity or affinity to the purpose and object, for which the law was introduced. The general words in the non obstante clause could be construed only as having been intended to secure the objects and purposes sought to be ensured or achieved by the legislation. It cannot be construed as wide enough to embrace every principle of law, which is otherwise binding, as having been abrogated. The test is to find out whether the law, which is said to be abrogated by the non obstante clause, occupied the same field or dealt with the same object. Laws falling under that category, the abrogation of which is necessary to enforce the purpose and object of the legislation, alone could be taken to have been abrogated by the general words. The position of special words may be different. The principle of abrogation cannot be extended to other laws enacted on the basis of public policy meant for protection of interests and for finality of pronouncements of courts, which have nothing to do with purposes of the enactment in question. These are the guidelines given in the Full Bench decision in Mohammed Mytheen v. Sreedharan ( 1976 KLT 919 ). Judged by these guidelines also, it cannot be excepted that a transaction hit by the rule of lis pendens is also covered by the non obstante clause in S.7-B. If any particular provision of law, contract, custom, usage or decision of court is expressly excluded by a non obstante clause, there will not be any difficulty. But, if the exclusion is only general, the principle of abrogation could be extended only if such abrogation could be deemed to have been impliedly intended to achieve purpose and object of the provision. Abrogation of general rules such as lis pendens, res judicata, estoppel, etc. cannot be lightly inferred unless the context requires abrogation to achieve the object and purpose of the law. Order XXI R.102 of the Code of Civil Procedure is also relevant in this context. Abrogation of general rules such as lis pendens, res judicata, estoppel, etc. cannot be lightly inferred unless the context requires abrogation to achieve the object and purpose of the law. Order XXI R.102 of the Code of Civil Procedure is also relevant in this context. It says that nothing in R.98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person, to whom the judgment debtor has transferred the property after the institution of the suit. 9. Learned counsel for the appellants took me to the decisions in Velayudhan v. Aishabi ( 1981 KLT 529 FB) approved by the Supreme Court in Appukuttan v. Thundiyil Janaki Amma and another ( AIR 1988 SC 587 ) overruling many decisions, which held that trespassers are not intended to be protected by Explanation II - A to S.2(25) of the Kerala Land Reforms Act. These two decision said that the words "in occupation" in Explanation II-A mean only occupation of any kind, lawful or unlawful, permissive or otherwise and that it is not necessary to enquire into the genesis and character of the occupation. I do not think that these decisions have anything to do with S.7-B, which stands on an entirely different footing. So far as the applicability of S.7-B in relation to S.52 of the Transfer of Property Act is concerned, these decisions have not, in any way, affected the decision in Mohammed Mytheen's case ( 1976 KLT 919 ). The wordings, requirement and context of Explanation II-A to S.2(25) and S.7-B are entirely different, interpretation of Explanation II-A is not applicable to S.7-B. Kudikidappu rights were already recognised by the courts below. Since S.7-B is not applicable, the question whether the ingredients of that section are satisfied or not need not be looked into. Appellants are not entitled to the benefits of any of the provisions of the Kerala Land Reforms Act to claim tenancy. Their obstructions were rightly ordered to be removed. Both the execution second appeals are dismissed without costs.