- (1.) The appellants, who are the heirs of deceased Defendant 2, have challenged the judgment and order passed by learned Single Judge of the Kerala High court in Civil Revision Petition No. 602 of 1980. The High court rejected the contention of the original appellant-Defendant 2, Original Suit No. 241 of 1974 by which he claimed status of a deemed tenant per the provisions of Section 6-C of the Kerala Land Reforms Act, 1963 as brought on the Statute-Book by the Kerala Land Reforms (Amendment) Act, 1979 (hereinafter referred to as "the Act"). Having obtained special leave to appeal under Article 136 of the Constitution of India the present appeal has been filed by the original Defendant 2. The respondents herein are the original plaintiffs in the suit.
(2.) A few relevant facts leading to these proceedings may be noted outset. The respondent-plaintiffs filed Original Suit No. 241 of 1974 in the of Subordinate Judge at Trivandrum for partition of respondents' 5/6th share the plaint schedule properties and for recovering the same from original appellant-Defendant 2 and his wife original Defendant 1 with past and future mesne profits.
(3.) The respondent-plaintiffs' case in short was that the suit properties originally belonged to one Krishna Pillai Madhavan Pillai. The said Madhavan Pillai by a Settlement Deed of 1945 (II 20 M. P. ) decided that plaint properties A, B, C Schedule were to remain in possession and enjoyment of Shri Madhavan Pillai, his wife Parvathi Amma and for the benefit of their children and the said Parvathi Amma had to remain in possession as life estate-holder. That the said Madhavan Pillai died in 1955 and his widow Parvathi Amma and his son Krishnan Nair succeeded to his properties. That Kerala Land Reforms Act, Act I of 1964 was brought on the Statute-Book on 1-4-1964. The said Krishnan Nair died on 4/1/1968. The said Parvathi Amma by a registered deed is said to have leased out her properties on 10/1/1969 to her son-in-law, deceased appellant original Defendant 2. Widow of Shri Krishnan Nair and her children filed the aforesaid suit as Plaintiffs 1 and 2 to 5 respectively in the trial court for partition and separate possession of their 5/6th share in the plaint schedule properties which were then in possession of original Defendant 2. In the said suit original Defendant 2 took up the contention that he was a tenant under the Kerala Land Reforms Act. That question was referred to the Tenancy tribunal under Section 125 (3 of the Kerala Land Reforms Act for decision. The tribunal held that original appellant-Defendant 2 was not a tenant under the Act and the lease deed in his favour was hit by Section 74 of the Kerala Land Reforms Act which totally barred creation of leases after 1/4/1964. The case of oral lease in his favour prior to 1/4/1964 was also found to be not established. The tribunal's decision was confirmed by the High court on 31/3/1978. The appellant carried the matter to this court. Special leave petition against the High court's judgment was also dismissed by this court on 28/8/1978. Thus the question of alleged tenancy of the appellant under the lease deed of 10/1/1969 finally got concluded against the appellant. In the meantime the trial court passed preliminary decree on 30/3/1976 and a receiver was appointed who took possession of the suit land from the appellant. Final decree was passed on 27/9/1978. Pursuant thereto the respondents obtained possession from the appellant through the receiver. Consequently final decree remained to be executed only for mesne profits and for that purpose the respondent filed execution petition against the appellant on 5/7/1979. Pending these execution proceedings for mesne profits Kerala Land Reforms (Amendment) Act, 1979 was brought on the Statute-Book. As per Section Ss. (2 thereof the said Amendment Act was deemed to have come into force on 7/7/1979. By the said Amendment Act, Section 6-C was inserted in the Kerala Land Reforms Act, 1963. The said provision reads as under: "6-C.certain lessees who have made substantial improvements, etc. , to be deemed tenants. Notwithstanding anything contained in Section 74, or in any contract, or in any judgment, decree or order of any court or other authority, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another person on the basis of a lease deed executed after the 1st day of April, 1964, shall be deemed to be a tenant if (A) he (including any member of his family) did not own or hold land in excess of four acres in extent on the date of execution of the lease deed; and (B) he or any member of his family has made substantial improvements on the land. Explanation. FOR the purposes of this section, improvements shall be deemed to be substantial improvements if the value of such improvements is more than fifty per cent of the value of the land on the date of execution of the lease deed. "the original judgment-debtor Defendant 2, that is, the original appellant herein, applied on 8/1/1980 in execution proceedings to get a fresh reference to the Land tribunal for deciding his deemed tenancy status under Section 6-C of the aforesaid Amending Act. The respondent decree-holders objected to the said application. By an order dated 29/1/1980 the executing court rejected the claim of the appellant for a fresh reference to the tribunal about his status of deemed tenancy under Section 6-C of the Act on the ground that this contention was barred by principles of res judicata. The appellant carried the matter in revision before the High court. As noted earlier a learned Single Judge of the High court by her decision dated 7/4/1980 rejected the said revision application taking the view that though the contention of the appellant was not barred by res judicata because of the coming into force of a new provision by way of Section 6-C of the Act, the lease deed in favour of the appellant dated 7/7/1969 was inoperative in law as Parvathi Amma who was a life estate-holder had no authority to create such a lease and Ch. H of the Kerala Land Reforms Act, 1963 did not apply to the facts of the present case in view of Section 3 (1 (vi) which stated that 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, were not covered by Ch. II of the Act which included Section 6-C. It is the aforesaid order of the learned Single Judge of the Kerala High court that is brought in challenge by the original appellant by way of present proceedings. Pending this appeal original appellant died and his heirs have pursued this appeal.;