Full Judgment Text
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PETITIONER:
PARAMESWARAN GOVINDAN
Vs.
RESPONDENT:
KRISHNAN BHASKARAN AND ORS.
DATE OF JUDGMENT06/02/1992
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
REDDY, K. JAYACHANDRA (J)
CITATION:
1992 AIR 1135 1992 SCR (1) 582
1993 SCC Supl. (1) 572 JT 1992 (2) 130
1992 SCALE (1)316
ACT:
Kerala Land Reforms Act, 1963-Section 132 (2)-Reopening
of a decree-Conditions-Redemption of mortgage decree-
Reopening-Legality of.
Kerala Land Reforms Act, 1963-Section 2 (57)-‘Tenant-
Construction-Ingredients-‘Mortgage’ u/ss. 60, 76 (h), 83.
Transfer of Property Act, whether tenant-Payment of decretal
amount (inclusive mortgage amount) prior to coming into
force of the Amending Act 35 of 1969-Effect.
Kerala Compensation for Tenants Improvement Act, 1958-
Sections 4, 5 read with section 60, Transfer of Property
Act-Decree of eviction of tenant-Whether preserved-
Possession u/s 60, T.P. Act on redemption of mortgage
whether affected.
Kerala Compensation for Tenants Improvements Act, 1958-
Object of.
Kerala Land Reforms Act, 1963-Section 4-A read with
Section 4, Kerala Compensation for Tenants Improvements Act,
1958-Distinction-Non-completion of 50 years continuous
possession on the date when the Amending Act 35 of 1969 came
into force-Effect.
Kerala Land Reforms Act, 1963-Sections 13, 54(2)-
Vesting of lands in the State-Whether land held by
mortgagees vests.
HEADNOTE:
The appellant was a mortgagor and the respondent No. 1
defendant No. 4 was one of the mortgagees. The suit for
redemption of mortgage filed by the appellant was decreed
providing for payment of Rs. 500, and Rs. 943/9.2 towards
improvements as a condition for redemption.
The appellant court in appeal enhanced the sum for
improvements by Rs. 256/8.4.
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When appellate filed an execution application, the
respondent filed another application under the Kerala
Compensation for Tenants Improvements Act, 1958 claiming a
further sum for improvements.
When it was pending, the appellant deposited the
decretal amount including the enhanced sum decreed by the
appellate court.
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The respondent’s application was allowed and appellant
was directed to pay a total amount of Rs. 4,149.66 paise
inclusive of decretal amount.
Thereafter, the respondents filed another application
to reopen the decree u/s. 132 (3) of the Kerala Land Reforms
Act, 1963 contending that he was a tenant u/s. 4A of the
Act, having been continuously in possession for over 50
years and that, therefore, the decree of eviction cannot be
executed against the respondent.
The executing court dismissed it, but on revision, the
High Court declared that the respondent was a ‘deemed
tenant’ u/s. 4A of the Kerala Land Reforms Act, against
which this appeal was filed.
The respondent No. 1 contended that he was a tenant
u/s. 2 (57) of the Kerala Land Reforms Act and that u/s. 72
of the Act the appellant no longer was the holder of the
land and the land stood vested in the State.
Allowing the appeal of the mortgagor and dismissing the
C.R.P., this Court,
HELD : 1.01. If there is a decree passed in one of the
four Acts enumerated in sub-s. 2 of s. 132 and the decree
remained unexecuted and pursuant to which possession was not
effected, then on the commencement of the Kerala Land
Reforms Act a tenant or landlord may make an application
upon which the decree would be reopened and be disposed of
in accordance with the provisions of Act. [588B]
1.02. The decree in question is only a redemption
decree pursuant to which the mortgagor is entitled to
possession, on redemption of mortgage, under s.60 of T.P.
Act. Therefore, the very application to reopen the decree
itself is misconceived, without jurisdiction and authority
of law.
[588B-C]
584
2.01. Section 2(57) of the Act, defined ‘tenant’ means
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. There should
exist jural relationship of landlord and tenant and pursuant
to a lease for consideration possession was given and the
lease remained in possession enjoying the land on payment of
rent or other consideration. [588D-E]
2.02. The mortgagee in possession of the hypothica for a
continuous period of not less than 50 years ‘immediately
preceding’ the commencement of the Amending Act 35 of 1969
is deemed to be a tenant under the Act. [589B]
2.03. The main part of s.2(57) does not apply to a
mortgagor and mortgagee and the mortgagee cannot be treated
to be a tenant. [588E]
2.04. By Amending Act 35 of 1969, s. 4A was introduced
on the statute. It is prospective in operation. [588E-F]
2.05. The respondents had not had continuous minimum of
50 years possession immediately preceding Act 35/69 came
into force. The mortgage amount of Rs. 500 together with
the improvements determined in the appeal were deposited on
June 21, 1961. A conjoint reading of s.60, s. 76(h) read
with s. 83 of Transfer of Property Act would amplify that on
deposit of the mortgage amount the contractual relationship
of mortgagor and mortgagee ceases. [589B-D]
Prithi Nath Singh & Ors. v. Suraj Ahir & Ors., [1963]
3 SCR 302, referred to.
3.01. A conjoint reading of ss. 4 and 5 of the Kerala
Compensation for Tenants Improvements Act, 1958 postulates
that a decree of eviction passed against tenant, namely
recovery of possession of land from the tenant, cannot be
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enforced until the compensation determined under the
Improvements Act is paid. Until such payment of
Compensation for improvements made by him or his
predecessors in interest, etc., is made, the tenant shall be
entitled to remain in possession and the decree of eviction
shall not be executed. [591A-B]
3.02. Payment is a condition precedent u/s. 4 and s. 5
provides the procedure by which the right secured under the
Act is to be enforced. The
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right to compensation given under s. 4 is a right to the
improvements made by a tenant while in possession and
enjoyment of the land before decree of enjectment was passed
against him. [591C]
3.03. The right to compensation springs into existence
from his continuance in possession as a tenant before decree
of eviction was passed and until the compensation is paid he
is entitled to remain in possession. For the purpose of
improvements, the mortgagee has been treated by fiction of
law to be a tenant. [591D]
3.04. Section 4(2) preserves the pre-existing contract;
the right and liabilities thereunder. The right to
possession under s. 60 of the transfer of Property Act, on
redemption kept uneffected. [591E]
4.01. The object of the Improvements Act is "to make
provision for payment of compensation for improvement made
by tenants". [591D-E]
4.02. The Improvements Act only hedges the right to
eviction and gives right to remain as a mortgagee till the
payment for improvements are made or deposited so that the
mortgagee/tenant is not driven to a separate suit. [591F]
5.01. The assumption of the High Court that
respondents’ possession under the Improvements Act as a
statutory mortgage and that he was in possession on the date
s. 4A of the Act came into force and that, he is entitled to
the protection from rejectment and the decree is liable to
be reopened under s. 132(3) of the Kerala Land Reforms Act
is clearly wrong.
[592C-D]
5.02. Merely the respondents remained in possession as
mortgagee, they cannot acquire the status as deemed ‘tenant’
under s. 4A tagging the period from June 21, 1961 till date
the Amending Act came into force and thereafter to compute
continuous possession as mortgagee for not less than 50
years immediately preceding Amendment Act 35 of 1969 to the
Act.
[592A-B]
5.03. The entitlement to remain in possession as a
condition for payment is different from the entitlement as a
statutory tenancy under s. 4A of the Kerala Land Reforms
Act. There is no non-obstenti clause in s.4 of the
Improvements Act, unlike s.4A of the Kerala Land Reforms
Act, which engrafts non-obstenti clause. The later is of
little assistance to the respon-
586
dent, as he did not complete 50 years of continuous
possession on the date when the Amending Act 35 of 1969 came
into force. The High Court is in error in holding that the
respondent is a deemed tenant under s. 4A.
[592D-E]
6. The landholder’s all rights, title and interest in
respect of holdings held by cultivating tenant for fixity of
tenure under s.13 and in respect of which certificates of
purchase under s.54(2) have not been issued, shall subject
to the provisions of the Act, vest in the Govt., free from
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all encumbrance created by the land owners etc. Therefore,
it pertains to only lands held by tenants cultivating land
under fixity of tenure under s. 13. The respondent is not a
cultivating tenant under fixity of tenure. Therefore, the
land does not vest in the Government. [592F-G]
Raghavan v. Velayudhan, 1984 K. L. T. 713, over-ruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2354 of
1979.
From the Judgment and Order dated 17.11.1977 of the
Kerala High Court in C.R.P. No. 2341 of 1977
N. Sudhakaran for the Appellant.
M.A. Firoz for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. This appeal by special leave arises
against the order dated November 17, 1977 made in C.R.P. No.
2341 of 1977 of the Kerala High Court which granted the
decree that the respondent is a tenant under s. 4A of the
Kerala Land Reforms Act, 1963 (1 of 1964), for short ‘the
Act’ and is not liable to ejectment pursuant to the decree
in O.S. No. 6/64 on the file of the Munsif Magistrate,
Attingal. The facts relevant are as under :
The appellant is the mortgagor. The respondent is one
of the mortgagees/4th defendant. The appellant’s suit for
redemption of the mortgage was decreed on December 23, 1965.
The decree provides payment of Rs. 500, and Rs. 943/9.2
towards improvements as a condition for redemption. On
appeal, the appellate court enhanced the improvements
587
by Rs. 256/8.4. In the execution application filed by the
appellant the respondent filed another application under the
Kerala Compensation for Tenants Improvements Act, 1958 (Act
29 of 1958), for short ‘the improvements Act’ claiming a
further sum for improvements. Pending application, the
appellant deposited on June 21, 1961 the decretal amount
including the sum decreed by the appellate court. Under the
Improvements Act, in 1975 the respondents’ application was
allowed and total amount of Rs. 4,149.66 paise inclusive of
decretal amount was directed to be paid, which became final.
Then the respondents filed yet another I.A. No. 2340/75 to
reopen the decree under s.132 (3) of the Act, Contending
that he is a tenant under s. 4A of the Act, having been
continuously in possession for over 50 years and that,
therefore, the decree of eviction cannot be executed against
the respondents. The executing court dismissed it, but on
revision, the High Court declared that the respondent is a
‘deemed tenant’ under s. 4A. Assailing the legality thereof
this appeal has been filed.
Section 132 is a repealing and saving section under the
Act and sub-section 3(a) postulates thus:
‘Notwithstanding the repeal of the enactments
mentioned in sub-section (2).
(a) Any decree passed before the commencement of
this Act for the eviction of a tenant from his
holding, pursuant to which eviction has not been
affected, may, on the application of the tenant or
the landlord, be reopened and the matter may be
disposed of in accordance with the provisions of
this Act.
The other sub-sections are not relevant. Hence
omitted. Sub-section 2 thereto provides that:
"The following enactments as in force in any part
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of the State of Kerala are hereby repealed,
namely:-
(i) The Cochin Verumpattamdars Act, VII of 1113.
(ii) The Travancore-Cochin Prevention of Eviction
of Kudikidappukars Act, 1955.
(iii) The Malabar Tenancy Act, 1929.
588
(iv) The Madras Cultivating Tenants (Payment of
Fair Rent) Act, 1956.
A bare reading of both sub-sections would demonstrate
that, if there is a decree passed in one of the four Acts
enumerated in sub-s.2 of s.132 and the decree remained
unexecuted and pursuant to which possession was not
effected, then on the commencement of the Act a tenant or
landlord may make an application upon which the decree would
be reopened and be disposed of in accordance with the
provisions of the Act. Undoubtedly decree in question is
only a redemption decree pursuant to which the mortgagor is
entitled to possession, on redemption of mortgage, under s.
60 of T.P. Act. Therefore, the very application to reopen
the decree itself is misconceived, without jurisdiction and
authority of law. But this question was not gone into by
either of the courts. Therefore, we do not propose to allow
the appeal on this short ground.
The controversy is whether the respondent is a tenant
under the Act, Section 2 (57) of the Act defined ‘tenant’
means 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. A
reading would indicate that there should exist jural
relationship of landlord and tenant and pursuant to a lease
for consideration possession was given and the lease
remained in possession enjoying the land on payment of rent
or other consideration. Therefore, the main part of s.
2(57) does not apply to a mortgagor and mortgagee and the
mortgagee cannot be treated to be a tenant. But by Amending
Act 35 of 1969, s. 4A was introduced on the statute.
Admittedly, it is prospective in operation. It reads thus:
"Certain mortgagees and lessees of mortgagees to be
deemed tenants-
(1) 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, a mortgagee with possession of land, other
than land principally planted with rubber, coffee,
tea or cardamom, or the lessee of a mortgagee of
such land shall be deemed to be tenant if -
(a) The mortgagee or lessee was holding the land
comprised in the mortgage for a continuous period
of not less than fifty
589
years immediately preceding the commencement of
Kerala Land Reforms (Amendment) Act, 1969; or
Other clauses are not necessary. Hence omitted. It
would be manifest that the mortgagee in possession of the
hypothica for a continuous period of not less than 50 years
‘immediately preceding’ the commencement of the Amending Act
35 of 1969 is deemed to be a tenant under the Act.
Admittedly the respondents had not had continuous minimum of
50 years possession immediately preceding Act 35/69 came
into force. The mortgage amount of Rs. 500 together with
the improvements determined in the said appeal were
admittedly deposited on June 21, 1961. A conjoint reading
of s.60, s. 76 (h) read with s.83 of Transfer of Property
Act would amplify that on deposit of the mortgage amount,
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the contractual relationship of mortgagor and mortgagee
ceases. This Court in Prithi Nath Singh & Ors. v. Suraj
Ahir & Ors., [1963] 3 S.C.R. 302 held that when the mortgage
money is paid by the mortgagor to the mortgagee, there does
not remain any debt from the mortgagor to the mortgagee and,
therefore, the mortgagee can no longer continue after the
mortgage money is paid. Therefore, on the payment of
mortgage money or deposit thereof in the court by the
mortgagor, the mortgage comes to an end and the right of the
mortgagee to remain in possession is also coterminous.
Thereafter, the mortgagee continues in unlawful possession.
The Improvements Act defines ‘tenant’ under s. 2(d)
thus:
"tenant" with its grammatical variations and
cognate expressions includes-
(i) a person who, as lessee, sub-lessee, mortgagee
or in good faith believing himself to be lessee,
sub-lessee, mortgagee, or sub-mortgagee of land, is
in possession thereof;
Clauses (ii) and (iii) are not relevant. Hence
omitted. Section 2 (a) defines eviction thus:
"eviction" means the recovery of possession of land
from a tenant".
Section 4 reads thus:
4. Tenant "entitled to compensation" for
improvements:
590
(1) Every tenant shall, on eviction, be entitled to
compensation for improvements which were made by
him, his predecessor-in-interest or by any person
not in occupation at the time of the eviction who
derived title from either of them and for which
compensation had not been paid; and every tenant to
whom compensation is so due shall, notwithstanding
the determination of the tenancy of the payment of
the mortgage money or premium, if any, be entitled
to remain in possession until eviction in execution
of a decree or order of court :
Provided that nothing herein contained shall be
construed as affecting the provisions of the Kerala
Land Conservancy Act, 1957 :
Provided further that this section shall not apply
to tenants holding lands under the Government.
(2) A tenant so continuing in possession shall,
during such continuance, hold as a tenant subject
to the terms of his lease on mortgage, if any.
Section 5 grants payment of compensation as a condition
precedent to enforce a decree of eviction which reads thus:
"5. Decree in eviction to be conditional on payment
of compensation :-
(1) In a suit for eviction instituted against a
tenant in which the plaintiff succeeds and the
defendant establishes a claim for compensation due
under section 4 for improvements, the court shall
ascertain as provided in sections 7 to 16, the
amount of the compensation and shall pass a decree
declaring the amount so found due and ordering that
on payment by the plaintiff into the court of the
amount so found due and also the mortgage money or
the premium, as the case may be, the defendant
shall put the plaintiff into possession of the land
with the improvements thereon."
Sub-sections 2 and 3 are not relevant and hence omitted.
Sections 7 to 16 provides the mode to accretion
improvements and
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591
computation thereof, the details of which are not necessary:
A conjoint reading of ss. 4 and 5 clearly postulates
that a decree of eviction passed against tenant namely
recovery of possession of land from the tenant cannot be
enforced until the compensation determined under the
Improvements Act is paid. Section 4 gives substantive right
to payment of compensation for improvements made by him or
his predecessors in interest, etc. Until such payment is
made, the tenant shall be entitled to remain in possession
and the decree of eviction shall not be executed. Payment
is a condition precedent under s. 4 and s. 5 provides the
procedure by which the right secured under the Act is to be
enforced. The right to compensation given under s. 4 is a
right to the improvements made by a tenant while in
possession and enjoyment of the land before decree of
ejectment was passed against him. Section 4(1) begins by
saying that every tenant shall, on eviction, is entitled to
compensation for improvements which were made by him.
Therefore, the right to compensation springs into existence
from his continuance in possession as a tenant before decree
of eviction was passed and until the compensation is paid he
is entitled to remain in possession. For the purpose of
improvements, the mortgagee has been treated by fiction of
law to be a tenant. The object of the Improvements Act is
"to make provision for payment of compensation for
improvement made by tenants". Sub-section 2 of s.4
preserves the pre-existing contract: the right and
liabilities thereunder. Thus it is clear that right to
possession under s. 60 of the Transfer of Property Act, on
redemption is kept uneffected.
The Improvements Act only hedges the right to eviction
and gives right to remain as a mortgagee till the payment
for improvements are made or deposited so that the
mortgagee/tenant is not driven to a separate suit. Sections
7 to 16 prescribes procedure for computation and s. 5
prohibits eviction till date of payment or deposit. Thus,
for and no further. His continuance in possession is by
virtue of contractual relationship, but by operation of
statue, his possession after redemption remain lawful. His
deeming tenancy under the Improvements Act is only to enable
him to recover the improvements determined under the
improvements Act. It confers no other higher rights. It
does not cloth with any right to statutory protection qua
the mortgage. From June 21, 1961, but for the Improvements
Act, his possession would be unlawful. Section 4A of the
Act would
592
not denude the right to repossession of the mortgagor under
s. 60 of the Transfer of Property Act without assent of the
President of India. Therefore, merely because the
respondents remained in possession as mortgagee, they cannot
acquire the status as deemed tenant under s. 4A tagging the
period from June 21, 1961 till the date the Amending Act
came into force and thereafter to compute continuous
possession as mortgagee for not less than 50 years
immediately preceding Amendment Act 35 of 1969 to the Act.
Admittedly, the respondents did not complete 50 years
of possession as a mortgagee preceding June 22, 1961. The
High Court assumed that his possession under the
Improvements Act as a statutory mortgagee and that he was in
possession on the date s. 4A of the Act came into force and
that, therefore, he is entitled to the protection from
ejectment and the decree is liable to be reopened under s.
132(3) of the Act. In our considered view, the assumption
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of the High Court is clearly wrong. The entitlement to
remain in possession as a condition for payment is different
from the entitlement as of statutory tenancy under s. 4A of
the Act. It is necessary to remember that there is no non-
obstenti clause in s. 4 of the Improvements Act, unlike s.4A
of the Act which engrafts non-obstenti clause. The later is
of little assistance to the respondent, as he did not
complete 50 years of continuous possession on the date when
the Amending Act 35 of 1969 came into force. Thus we are of
the considered view that the High Court is in error in
holding that the respondent is a deemed tenant under s.4A.
It is next contended by the learned counsel for the
respondents that under s. 72 of the Act the appellant no
longer is the holder of the land and the land stood vested
the state. The landholder’s all rights, title and interest
in respect of holdings held by cultivating tenant for
fixity of tenure under s. 13 and in respect of which
certificates of purchase under s. 54 (2) have not been
issued, shall, subject to the provisions of the Act, vest in
the Govt., free from all encumbrance created by the land
owners etc. Therefore, it pertains to only lands held by
tenants cultivating land under fixity of tenure under s.13.
The respondent is not a cultivating tenant under fixity of
tenure. Therefore, the land does not vest in the Government.
The learned counsel also invited our attention to a
decision of the
593
Kerala High Court in Raghavan v. Velayudhan, 1984 K.L.T.
713. In that case also the Division Bench proceeded on the
same premise as in the impugned order. Practically they
followed this judgment. Therefore, for the same reasons,
the ratio therein is not a good law.
The appeal is accordingly allowed. The C.R.P. is
dismissed and that the order of the executing court is
restored. No Costs.
V.P.R. Appeal allowed.
594