M C CHACKO Vs. VALA SAMUDAYCDHARANI CO OPERATIVE SOCIETY
HIGH COURT OF KERALA
VALA SAMUDAYCDHARANI CO-OPERATIVE SOCIETY
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(1.) A very short question arises for consideration in the second appeal: and the question is whether a tenancy created by a liquidator appointed by the Registrar of Cooperative Societies under S.51(1) of the Travancore - Cochin Cooperative Societies Act of 1952 has fixity of tenure as contemplated by Kerala Act 1 of 1964. The Trial Court held that there was fixity of tenure under Act 4 of 1961; but the Subordinate Judge held that there was no fixity of tenure for such a tenancy under Act 1 of 1964.
(2.) Under S.2(57) of the Act "tenant" means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and to enjoy the land of the latter. The powers of a liquidator appointed under the Cooperative Societies Act are enumerated in S.51(1) of the Act. Clause (k) of the sub-section must apply to the case; and the powers contemplated by this clause are to carry on the business of the Society so far as may be necessary for the beneficial winding up of the same Thus, a liquidator appointed under the Cooperative Societies Act has only powers to carry on the business of the Society so far as may be necessary for the beneficial winding up of the Society. If he does anything beyond those powers, the action will not bind the Society. The action of the liquidator in leasing out the property to the appellant, if it is to be considered as an act to carry on the business of the Society for the purpose of its winding up, can only subsist until and so long as the winding up lasts: it must also be for the beneficial winding up of the Society. If the liquidator creates a lease to which is attached fixity of tenure, what he does is to create a lease which continues even after the liquidation and what he can thereafter sell for the winding up is only the landlord's interest. The asset that came into his hands was the entire interest in the property and not merely the landlord's interest, which would have been the case if the lease itself was created by the Society before it went into liquidation. Such an asset, if it came into the hands of the liquidator, the liquidator is bound to sell, and with the price thereof, the creditors of the Society have to be paid. Moreover, if the tenancy is to be considered as one which has fixity of tenure attached to it, the creation of such a tenancy by the liquidator will not come within the definition in S.2(57), wherein the expression used is "the land of the latter". In a case like this, the land is not the land of the liquidator; and if the land is the land of the Society, the liquidator has no authority to create such a lease.
(3.) Thus, the decision of the Subordinate Judge is correct. The second appeal is consequently dismissed with costs.;
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