VASUDEVAN Vs. KANDAN
LAWS(KER)-1964-2-31
HIGH COURT OF KERALA
Decided on February 25,1964

VASUDEVAN Appellant
VERSUS
KANDAN Respondents

JUDGEMENT

K.K.MATHEW,J. - (1.) THIS is an appeal by the plaintiff from a decree in a suit for recovery of possession of the plaint property.The plaint property belonged to one Chathu.He died leaving behind him his widow Kotha and his daughter Kochi.The plaintiff is the son of Kochi.The widow and the daughter executed a sale of the property to the 1st defendant on 14th September 1943.The plaintiff as reversioner filed a suit in O.S.No.20 of 1944 to set aside that sale.The sale was set aside on condition of the plaintiff paying certain amounts to the 1st defendant.The decree provided that the 1st defendant would be entitled to remain in possession of the property during the lifetime of the executants of the sale deed.The decree was passed on 31st December 1945.Kotha died subsequently.Thereafter the daughter Kochi executed Ex.A -1,by which she surrendered the estate to the plaintiff,and the plaintiff has filed the suit for recovery of possession of the property.Defendants 2 and 3 who were in possession of the property under the 1st defendant contended,among other things,that they were entitled to fixity of tenure,that the surrender of the estate by Kochi in favour of the plaintiff was invalid and fraudulent,that the surrender could not affect their interest in the property and that they were entitled to continue in possession of the property by virtue of the provisions of section 43 of the Malabar Tenancy Act.
(2.) THE courts below have held that the surrender of the estate by Kochi to the plaintiff,the reversioner,was valid and that the plaintiff would have been entitled to recover possession of the property on the basis of the surrender but for the fact that the defendants 2 and 3 were the lessees under the 1st defendant and entitled to protection under section 43 of the Malabar Tenancy Act.
(3.) THE only question for consideration in this appeal is whether the defendants 2 and 3 were entitled to the protection given by section 43 of the Malabar Tenancy Act.Section 43 of the Malabar Tenancy Act is intended to protect the rights of the tiller of the soil.The section reads as follows: "Notwithstanding anything contained in the Transfer of Property Act,1882,or in any other law for the time being in force,or in any contract,a cultivating tenant or the holder of a kudiyiruppu shall be entitled to continue on the holding as such,although the rights of his immediate landlord or of any superior landlord have been extinguished,whether by eviction or by redemption of a mortgage or otherwise,subject however,to liability to pay fair rent and to the provisions of this Act applicable to a cultivating tenant or the holder of a kudiyiruppu,as the case may be." Both the courts below have come to the conclusion that defendants 2 and 3 were cultivating tenants under the 1st defendant,and that even though by surrender of the estate by the daughter Kochi to the plaintiff,the 1st defendant's rights in the property came to an end,the plaintiff was not entitled to recover possession of the property,as under section 43 of the Malabar Tenancy Act,defendants 2 and 3 were entitled to continue in possession.It was argued for the appellant that section 43 can only apply when there is a hierarchy of tenants and not to a case where the lease was granted by a person who had no interest in the property.The decree in O.S.No.20 of 1944 allowed the 1st defendant to continue in possession of the property till the death of the executants of the sale deed.Defendants 2 and 3 were let into possession as tenants at a time when the 1st defendant was entitled to remain in possession.Therefore it cannot be said that the 1st defendant had no authority to induct defendants 2 and 3 into possession as lessees.The fact that by subsequent surrender the estate of Kochi came to a termination cannot affect the right of the lessees to remain in possession of the property.Section 43 says that notwithstanding the extinguishment of the interest of the immediate landlord by redemption,eviction or otherwise,the cultivating tenant would be entitled to continue in possession of the holding.It was contended for the appellant that the extinguishment of the right of the 1st defendant,the immediate landlord,by surrender of the estate by Kochi to the reversioner would not come within the ambit of the expression or otherwise " ;.It was argued that the legislature could not have intended that the words "or otherwise ┬Łoccurring in the section should take in the case of the extinguishment of the right of the immediate landlord by surrender by a limited owner as in this case.I must say that the difficulty of interpretation in a case like this is to find out whether the situation with which the court is confronted was within the contemplation of the legislature.It is said by John Chipman Gray in his book 'The Nature and Sources of the Law 'at page 165: "Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was.But when a Legislature has had a real intention,one way or another,on a point,it is not once in a hundred times that any doubt arises as to what its intention was.If that were all that a Judge had to do with a statute,interpretation of statutes,instead of being one of the most difficult of a judge's duties,would be extremely easy.The fact is that the difficulties of so called interpretation arise when the Legislature has had no meaning at all;when the question which is raised on the statute never occurred to it;when what the judges have to do is,not to determine what the Legislature did mean on a point which was present to its mind,but to guess what it would have intended on a point not present to its mind,if the point had been present." According to the decision of the Supreme Court in Natvarlal Punjabhai v. Dadubhai Manubhai ,A.I.R.1954 S.C.61 the effect of the surrender by the limited owner to the reversioner was that even the so called right of the alienee to remain in possession daring the lifetime of the limited owner came to an end,and the reversioner became entitled to immediate possession of the estate.The view of the Madras High Court that the alienee would be entitled to remain in possession till the death of the limited owner was not accepted by the Supreme Court.Therefore it has to be taken that the effect of the surrender was to put an end to the right of the 1st defendant to remain in possession during the lifetime of Kochi.No doubt the decision of the Supreme Court recognised the power of the court to impose conditions on the reversioner before recovering possession.But it is doubtful whether the condition so imposed can be such as to allow the alienee to remain in possession of the property during the lifetime of the limited owner.Be that as it may,so far as this case is concerned,I am prepared to hold that the surrender by the limited owner operated to extinguish the right of the 1st defendant to remain in possession of the property.The extinction of that right should not affect the interest of defendants 2 and 3 who were inducted into possession before the surrender and at a time when,under the terms of the decree,the 1st defendant had the right to remain in possession of the property during the lifetime of the limited owner.The 1st defendant's possession was lawful under the terms of the decree in O.S.No.20 of 1944,and therefore at the time it was open to him to have inducted any person into possession of the property as a lessee during the lifetime of the widow. It was contended for the appellant on the basis of the ruling reported in Asa Ram v. Mst.Ram Kali, A.I.R.1958 S.C.183 that the 1st defendant had no authority to grant the lease,as his right became extinguished,and therefore defendants 2 and 3 were not entitled to the benefit of section 43 of the Malabar Tenancy Act.In the Supreme Court case,a mortgagee granted a lease extending beyond the period of the mortgage,and on redemption of the mortgage,the lessee in possession obstructed claiming the benefit of an enactment granting fixity of tenure.The Supreme Court said that as the mortgagee had only the right to grant a lease which would enure during the period of the mortgage and as the lease was not binding on the mortgagors under section 76(a)of the Transfer of Property Act,and that as the tenant continued in possession unauthorisedly after the redemption of the mortgage,he was not entitled to fixity of tenure under the enactment.I do not think the case is of much assistance to the appellant.Here defendants 2 and 3 were let into possession as cultivating tenants at a time when the 1st defendant was entitled to the possession of the property by virtue of the provision in the decree in O.S.No.20 of 1944,and they became entitled to the protection conferred by section 43 of the Malabar Tenancy Act.The subsequent surrender of the estate by Kochi to the plaintiff even though it extinguished the right of the 1st defendant to continue in possession,did not affect the right of defendants 2 and 3 to remain in possession.The situation in this case falls precisely within the four corners of section 43 of the Malabar Tenancy Act.I think that the extinguishment of the right of the immediate landlord was brought about by an event,which would fall within the scope of the expression "or otherwise "occurring in that section.The view taken by the courts below that defendants 2 and 3 were entitled to the benefit of section 43 of the Malabar Tenancy Act was correct.;


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