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1995 DIGILAW 433 (KER)

Rama Panicker v. Leelavathi Amma

1995-12-14

K.G.BALAKRISHNAN, P.A.MOHAMMAD

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Judgment :- Mohammed, J. These appeals came up for hearing before us on a reference for answering a question whether a "varamdar" under a life interest-holder is entitled to benefits of the Kerala Land Reforms Act, 1963 (for short'the Act') once the life interest is no longer subsists. The main contention of the appellants is that since the varam arrangement involved in the case was originated under a life interest holder it could not survive after the death of the life-interest holder. They further plead that the decision of this court in Ouseph v. Jose (1987(2) KLT 228) requires re-consideration. 2. The question of tenancy involved in O. S. Nos 498 and 594 of 1971 filed by the appellants before the Munsiffs Court, Parur was referred to the Land Tribunal, Alappuzha under Section 125(3) of the Act. The Tribunal has numbered the references as O. A. No. 355 and 631 of 1975. These applications were disposed of by the Tribunal as per separate orders, both dated 25.4.1984. The Tribunal after the enquiry came to the conclusion that the varam arrangements claimed in respect of 221/4 cents of nilam comprised in survey number 6/4C and 1 acre and 5 cents of nilam comprised in survey number 8/1B. are true and valid under section 8 of the Act. It also found that one Kunju Mohammed was entitled to get fixity of tenure and he had transferred all his varam right to Smt. Leelavathy Arnma, who is the first defendant in O.S. No. 594 of 1971 and third defendant in O. S.498 of 1971, as per sale deed No. 3069 dated 20.9.1971 of Sub Registry office, Alwaye. The Tribunal further observed that the transferee, Smt. Leelavathy Amma, is also a 'Varamdar" entitled to get fixity of tenure in respect of all the plaint schedule properties except 22112 cents of nilam comprised in survey No.8/1B. 3. The above findings of the Land Tribunal were accepted by the trial court and accordingly it held that Smt. Leelavathy Amma is entitled to get fixity of tenure as ordered by the Tribunal. The trial court thus passed a preliminary decree declaring that the plaintiffs are entitled to get half share of the jenmom right in the plaint schedule properties in O.S. No. 594 of 1971 and item Nos.1 and 2 of the plaint schedule properties in O.S. No. 598 of 1971. The trial court thus passed a preliminary decree declaring that the plaintiffs are entitled to get half share of the jenmom right in the plaint schedule properties in O.S. No. 594 of 1971 and item Nos.1 and 2 of the plaint schedule properties in O.S. No. 598 of 1971. As against the judgments and decrees in the above suits, appeals were filed before the Principal Subordinate Judge's Court, Parur, as A. S. Nos. 41 and 78 of 1986. Those appeals were dismissed by the lower appellate court as per the common judgment dated 29.1.1988 in confirmation of the judgments and decrees of the trial court. Hence these second appeals were filed by the plaintiffs. 4. A Varamdar' is a person who undertakes cultivation under a varam arrangement and Varam' has been defined in Section 2(60) of the Act thus : (60) Varam" means an arrangement for the cultivation of nilam with paddy and sharing the produce, made between the owner or other person in lawful possession of the nilam and the person who undertakes cultivation under such arrangement, and includes the arrangements known as pathivaram, pankuvaram and pankupattam; and Varamdar' means the person who undertakes cultivation under a varam arrangement. Notwithstanding the expiry of the term fixed under the varam arrangement, any person who by virtue of the provisions of Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957, was entitled to cultivate any nilam after the 11th day of April 1957 and was cultivating the nilam at the commencement of this Act shall be deemed to be a tenant by virtue of the provisions contained in Section 8 of the Act. Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957 reads thus: 6. Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957 reads thus: 6. Varamdar's right to continue to cultivate lands (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, (i) Subject to the provisions of clause (ii), where in respect of any land there is a varamadar at the commencement of this Act, such varamdar: (ii) where a varamdar, in respect of any land, has not started agricultural operations at the commencement of this Act and a person other than that varamdar had cultivated the land under a varam agreement in the cultivation season immediately preceding such commencement, such other person; (iii) where in respect of any land there is no varamdar and the agricultural operations have not been started at the commencement of this Act, the person, if any, who had cultivated the land under a varam agreement during the cultivation season immediately preceding such commencements; and (iv) where in respect of any land there is no varamdar at the commencement of this Act, but the person who had cultivated the land under a varam agreement during the cultivation season immediately preceding such commencement had started the agricultural operations of the land at such commencement, such person shall be entitled to cultivate the land on the same terms and conditions under which he was cultivating the land at the commencement of this Act or during the cultivation season immediately preceding such commencement, as the case may be. By virtue of the provision contained in Section 10 of the Act, a varamdar shall be deemed to be a tenant notwithstanding anything to the contrary contained in any law or in any contract, custom or usage or in any judgment, decree or order of court. 5. As per the terms of settlement deed No. 3309 dated 25.9.1118 M.E. Rama Panicker Sankara Panicker has a life interest in the properties and he has no power to alienate the properties. He died in the year 1975. Ext. B1 dated 20.9.1971 in O.A. No. 355 of 1975 is the deed of assignment of varam right executed by Kunju Mohammed in favour of Smt. Leeiavathy Amma. Kunju Mohammed was in possession of nilam prior to the execution of Ext. B1 as a varamdar, under Rama Panicker Sankara Panicker. He died in the year 1975. Ext. B1 dated 20.9.1971 in O.A. No. 355 of 1975 is the deed of assignment of varam right executed by Kunju Mohammed in favour of Smt. Leeiavathy Amma. Kunju Mohammed was in possession of nilam prior to the execution of Ext. B1 as a varamdar, under Rama Panicker Sankara Panicker. The testimony of Kunju Mohammed and Kumaran, who were examined as D.Ws 2 and 3 before the Land Tribunal, revealed that the property was outstanding on tenants on varam arrangement about 30 years back and that Kurnaran was the predecessor of Kunju Mohammed who had been cultivating the property for five years. After analysing the evidence the tribunal found that varam arrangement in favour of Kunju Mohammed was valid and the transfer of varam right in favour of Leeiavathy Amma was also valid. Then the remaining question is whether Kunju Mohammed or his assignee Leeiavathy Amma can continue as a varamdar after the death of Rama Panicker Sankara Panicker. In other words, the question is whether the varam arrangement created by a life interest holder will continue to subsist even after the cessation of such an interest. 6. A person who is a'deemed tenant' under sections 8 and 10 of the Act is a tenant who is entitled to fixity of tenure under Section 13 of the Act by virtue of the provisions contained in Section 2(57)0) of the Act. However, it was argued that such fixity would not be available in the case of tenancies created by a person who is having only limited interest in the land. It is true that certain tenancies have been exempted from the operation of the provisions of the Act. Section 3 of the Act deals with such exempted tenancies. Section 3(1)(vi) deals with tenancies in respect of land created by persons having only life interest or limited interest in the land. It runs thus: (vi) tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both: Provided that this clause shall not apply to a tenancy created by any person who was governed by the Madras Aliyasanthana Act, 1949. It runs thus: (vi) tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both: Provided that this clause shall not apply to a tenancy created by any person who was governed by the Madras Aliyasanthana Act, 1949. Provided further that the provisions of this Chapter other than Sections 53 to 72 S shall apply to tenancies falling under clauses (v) and (vi) so long as the mortgage or, as the case may be, the life interest or other limited interest subsists. In view of the above provision, tenancies created by a life interest holder will be exempted from the operation of the Act. By virtue of second proviso quoted above, in the case of tenancies created by persons having life interest, Sections 8,10 and 13 of the Act shall apply so long as such life interest subsists. 7. The above position will, no doubt; support the contention that the varam arrangement will not continue on the death of the life interest holder. But it has been explicitly altered by the provisions contained in the Kerala Land Reforms (Amendment) Act, 1969. By virtue of this, the following proviso has been added to Section 3(1)(i) to (vii) of the Act. "Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21 st January 1961 under any law then in force or persons claiming under such persons;" The above proviso will apply in the facts of the present case inasmuch as the predecessors-in-interest of Leeiavathy Amma were entitled to fixity of tenure before 21.1.1961 under the law then in force. Therefore, the tenancies created by life interest holder is not an exempted tenancy under Section 3 of the Act, In .other words, the benefits under Section 8 read with Sections 10 and 13 of the Act are available to the tenants under a life interest holder even after the cessation of such interest by reason of death or otherwise. 8. Therefore, the tenancies created by life interest holder is not an exempted tenancy under Section 3 of the Act, In .other words, the benefits under Section 8 read with Sections 10 and 13 of the Act are available to the tenants under a life interest holder even after the cessation of such interest by reason of death or otherwise. 8. In Ouseph v. Jose (1987(2) KLT 228), after analysing the provisions of the Kerala Land Reforms Act, a learned single judge of this court held: " A varamdar whether holding under a limited owner or not should therefore be treated as one entitled to fixity of tenure immediately before 21st January, 1961. The Stay Act as already stated, has conferred fixity of tenure on varam tenants and the said right was of an enduring nature or of a permanent character. This right must therefore be treated as preserved by S.4 of the General Clauses Act. The appellants accordingly are entitled to the benefit of S.8 read with Ss.10 and 13 of the KLR Act." The law has been correctly laid down in the aforesaid decision of this court. In view of the discussions herein before, we do no see any reason to re-consider the said decision. In the result, the Second Appeals have no merit and they are accordingly dismissed. No costs.