Parameswaran
Govindan Vs. Krishnan Bhaskaran & Ors [1992] INSC 40 (6 February 1992)
Ramaswamy,
K. 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.
HEAD NOTE:
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. 583
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.
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
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 585 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 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.
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 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, 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 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 there under.
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 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.
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