V. P. Anandavally Amma v. V P Premalatha Kurup — 1991 DIGILAW 159 (KER)

ORDER M.M. Pareed Pillay, J. 1. Revision petitioner refuted the claim of tenancy by the applicant (1st respondent herein). Land Tribunal rejected that contention and the Appellate Authority (LR) affirmed the decision of the Land Tribunal. 2. The case of the applicant is that she obtained the property on oral tease from the karnavan of the tavazhi in 1955 and in 1961 the oral lease was confirm d by a kuzhikanam document. Revision petitioner contended inter alia that the leases granted by karnavan is not valid as consent of the majority of the major members of the tharawad was not obtained by him. 3. The question that arises for consideration is as to whether consent of the majority of the major members of the tharawad is necessary for a lease granted by the karnavan coming within the purview of Malabar Tenancy Act. Revision petitioner contended that even if the oral lease of 1955 is assumed to be true it cannot be held to be valid as the written consent of the majority of the major members of the tharawad was not obtained. Applicant contended that such consent is not necessary as the lease in her favour is not one coming under any of the categories mentioned under S.33(1) of the Madras Marumakkattayam Act prior to its amendment in 1956. She contended that in view of S.33(1) of the Madras Marumakkattayam Act as it stood prior to the amendment by Amendment Act 26 of 1958 consent of the majority of the major members of the tharawad was really necessary only for the lease of any property with premium returnable wholly or in part or for a period exceeding 12 years and as the lease set up by the applicant does not fall within that category and as it is only a mere oral lease no such written consent is contemplated. 4. To appreciate the position better it is useful to quote S.33 as it stood prior to amendment and thereafter. Before amendment S.33(1) and (2) reads as follows: "33(1). 4. To appreciate the position better it is useful to quote S.33 as it stood prior to amendment and thereafter. Before amendment S.33(1) and (2) reads as follows: "33(1). No sale or mortgage of any immovable property and no lease of any such property either for a premium returnable wholly or in part or for a period exceeding 12 years shall be valid unless it is executed by the Karnavan for consideration, for Tharawad necessity or benefit and with the written consent of the majority of the major members of the Tharawad; (2) No lease of any immovable property of a Tharawad in cases not referred to in sub-s.(1) shall be valid unless it is executed by the Karnavan and where the Malabar Tenancy Act, 1929, confers fixity of tenure on the lessee, unless also the written consent of the majority of the major members of the Tharawad has been obtained to the lease". After amendment S.33(1) and (2) reads as follows. "33(1) No sale or mortgage of any immovable property of a Tharawad and no lease of any such property shall be valid, unless it is executed by the Karnavan for consideration, for Tharawad necessity or benefit, and with the written consent of the majority of the major members of the Tharawad. (2) Nothing contained in sub-s.(1) shall be deemed to affect the validity of any mortgage or lease executed before the commencement of the Madras Marumakkattayam (Amendment) Act, 1958 in accordance with the law in force at that the time of such execution " 5. S.33(2) prior to the amendment makes the position clear that no lease of any immovable property of a tharawad in cases not referred to in sub-s.(1) shall be valid unless it is executed by the karnavan and where the Malabar Tenancy Act, 1929 confers fixity of tenure on the lessee, unless also the written consent of the majority of the major members of the tharawad has been obtained to the lease. Thus, in a case where Malabar Tenancy Act applies, lease granted by the karnavan must be ratified in writing by the majority of the major members of the tharawad. This was the position even before the amendment. As a verumpattamdar the applicant would be entitled to fixity of tenure under the Malabar Tenancy Act if she could establish the oral lease of 1955. This was the position even before the amendment. As a verumpattamdar the applicant would be entitled to fixity of tenure under the Malabar Tenancy Act if she could establish the oral lease of 1955. As any lease conferring fixity of tenure under the Malabar Tenancy Act cannot, be granted by the karnavan only with the written consent of the majority of the major members of the tharawad, the oral lease of 1955 claimed by the applicant would certainly be hit by S.33(2) of the Madras Marumakkattayam Act as it stood prior to the amendment. Though present S.33(2) states that nothing contained in sub-s.(1) shall be deemed to affect the Validity of any lease executed before the commencement of Madras Marumakkattayam (Amendment) Act, 1958 in accordance with the law in force at the time of such execution, the position will not be different so far as the claim of the applicant is concerned in view of S.33(2) as it stood prior to the amendment. Thus for any lease having fixity of tenure under Malabar Tenancy Act consent of majority of the major members of the Tharawad is the sins qua non. As there is total dearth of evidence of any such consent, the lease set up by the applicant is invalid. 6. Applicant examined as P. W. I. stated that the lease granted in her favour was in 1955 and in 1961 kuzhikanam document was executed. In the Kuzhikanam deed of 1961 there is no reference as to the date of commencement of the oral lease. Only for the first time in the evidence P. W. I. stated that she obtained the property in 1955. P. W. I. admitted that there is no document to prove the oral lease. There is no cogent evidence in support of the applicant's case that she obtained oral lease of the property from the Karnavan in 1955. As it is the definite case of the applicant that she obtained the property on oral lease in 1955 the burden is entirely upon her to establish it. Appellate Authority has wrongly cast the burden on the revision petitioner and affirmed the finding of the Land Tribunal that the applicant has leasehold right. That approach is basically wrong and legally not sustainable. 7. Applicant being member of tharawad is cot entitled to claim deemed tenancy under Kerala Land Reforms Act. Appellate Authority has wrongly cast the burden on the revision petitioner and affirmed the finding of the Land Tribunal that the applicant has leasehold right. That approach is basically wrong and legally not sustainable. 7. Applicant being member of tharawad is cot entitled to claim deemed tenancy under Kerala Land Reforms Act. It is apposite to refer to Parvathi Amma v. Parvathi Amma ( 1983 KLT 71 ) where a Division Bench of this Court held thus: "One more concept of the Malabar Law has to be borne in mind. The concept is that the properties belong to all the members of the tharwad and that apart from the right of management the karnavan has no larger right or interest than the other members. It is therefore clear that a member of a tharawad in possession of tharawad property cannot be considered to be a person in occupation of "the land of another", and he is not entitled to claim the benefits of S.7 and 7B of Act 1 of 1964 as amended by Act 35 of 1969." 8. Still on another ground the applicant cannot claim deemed tenancy. Having claimed a specific lease and failed to establish it she cannot turn round and put forward a plea that she should be treated as a deemed tenant under the Land Reforms Act. 9. For the foregoing reasons I hold that the authorities below have erroneously upheld the tenancy claim of the applicant. The judgment of the Appellate Authority and the order of the Land Tribunal are set aside. The Original Application stands dismissed. The Civil Revision Petition is allowed. No order as to costs.