Ammukutty Amma v. Viswantha Iyer

Thomas, J.:— The 1st appellant is the widow of Ramanatha Iyer. He and the rest of the members of his family executed Ext. A1 partition deed oo 17-12-1932. Among the items allotted to different sharers as per Ext. Al, Ramanatha Iyer got life interest in the suit properties. It is stipulated therein that on the death of Ramanatha Iyer the suit properties would revert to his brother Balakrishna Iyer. On 19-2-1962, as per Ext. A2, the said Balakrishna Iyer assigned his rights in the suit properties in favour of the plaintiff, who is another brother of the above said persons. But during the life time of Ramanatha Iyer, a lease was created on 5-8-1963 (as per Ext. B1) in favour of his wife (the 1st appellant), leasing out the suit properties for a period of one year. Ramanatha Iyer passed away on 19-5-1975. The present suit has been filed after the death of Ramanatha Iyer for recovery of the suit properties with mesne profits from the 1st appellant and her children. The suit is resisted by the 1st appellant contending, inter alia, that she is entitled to fixity of tenure as per the provisions of the Malabar Tenancy Act, 1929 and that she had obtained a certificate of purchase from the Land Tribunal on an application filed by her as O.A No. 1023 of 1971. Alternatively she contended that if she is liable to be evicted for any reason, she is entitled to the value of improvements effected by her subsequent to the lease in her favour.

2. The court below repelled all her contentions except her claim regarding value of improvements. The suit was decreed with mesne profits at the rate of Rs. 8942/40 per annum from the date of suit. However, the learned Sub Judge found that the 1st appellant is entitled to get the value of improvements made by her from 1956 onwards which was fixed by the lower court as Rs. 13,120/-. Set off was allowed for the said amount in the total quantum of mesne profits due from the 1st appellant. The learned counsel for the appellants urged the following contentions in this appeal: (i) The tenancy in favour of the 1st appellant, evidenced by Ext. B1, is protected under S. 43 of the Malabar Tenancy Act and hence she has fixity of tenure in the suit properties; (ii) she, being a tenant under Act 29 of 1958, is entitled to continue in possession until the entire value of improvements is paid to her. As a corollary, it is contended that until the payment of the value of improvements the question of mesne profits does not arise; and (iii) even otherwise she is not liable to pay any mesne profits since her possession has never been wrongful.

3. Though the 1st appellant has raised a plea in the written statement that she is not liable to be evicted on account of the issuance of the certificate of purchase by the Land Tribunal, the learned counsel did not seriously pursue that plea in this appeal. Neither the certificate of purchase nor a copy of the order of the Land Tribunal pursuant to which the said certificate was issued has been produced in this case. That might be the reason why the learned counsel did not think it fit to seriously pursue the claim based on the said certificate. We shall now deal with the above contentions in seriatim.

4. S. 43 of the Malabar Tenancy Act, 1929, confers right on a cultivating tenant to continue in the holding “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……”. A Division Bench of this Court in Madhavi v. Kanaran (1968 KLT. 738) has given a wide meaning to the expression “or otherwise” in S. 43 of the said Act. It was held that even tenancies created by persons having only life interest or other limited interest in the land are protected by S. 43 of the Malabar Tenancy Act by giving a wider meaning to the aforesaid expression. The first contention of the learned counsel for the 1st appellant is based by S. 43 of the Malabar Tenancy Act as interpreted in the above Division Bench of this Court. But the Malabar Tenancy Act stood repealed as early as 21-1-1961 with the enactment of Kerala Agrarian Relations Act. According to the learned counsel, the Malabar Tenancy Act was repealed only on 1-4-1964 by the Kerala Land Reforms Act, 1963 because S. 132(2)(iii) of the said Act mentions Malabar Tenancy Act 1929 as one of the Statutes repealed. In the statement of objects and reasons of the Kerala Land Reforms Act, a brief reference is made to the history of Kerala Agrarian Relations Act (Act IV of 1961), which received the assent of the President on 21-1-1961. The Supreme Court struck down Act IV of 1961 as unconstitutional in its application to the ryotwari lands situated in two taluks in the Malabar area and this Court has declared the said Act as null and void in its application to the ryotwari lands of the entire Malabar area and some other categories of lands situated in the Travancore area. These facts are stated in the statement of objects and reasons of the Kerala Land Reforms Act. Malabar Tenancy Act, 1929 is included in Schedule III of Act IV of 1961 which contains a list of statutes repealed by the said Act. The learned counsel contends that since the Malabar Tenancy Act, 1929 is included in the list of enactments repealed by virtue of S. 132 of the Kerala Land Reforms Act, the legislature must have regarded the Malabar Tenancy Act, 1929 to be alive till the commencement of the Kerala Land Reforms Act. We are not inclined to accept the aforesaid argument because Act IV of 1961 was not declared to be void in its entirety either by this Court or by the Supreme Court and S. 95 of the said Act came into force on 21-1-1961 itself which repealed, inter alia, the Malabar Tenancy Act, 1929.

5. There is another angle from which the learned counsel for the respondent met the contention based on S. 43 of the Malabar Tenancy Act. Even assuming that the said Act continued to be in force till the coming into force of the Kerala Land Reforms Act, the legislature has clearly expressed its intention that all the rights created under the Malabar Tenancy Act were not to survive subsequent to the repeal of the Act. All provisions regarding tenancies, in the Kerala Land Reforms Act have been included in Chapter II of that Act which starts with S. 3. The said section says that nothing in Chapter II shall apply to “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”. This is mentioned in clause (vi) of sub-section (1). A proviso inserted after clause (vii) is quoted:

“Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons.”

6. S. 132(3) of the Kerala Land Reforms Act provides that certain actions taken pursuant to the repealed Acts are to continue in the manner specified in that sub-section. It is contended by the learned counsel for the respondent that the legislature, by including the said proviso and by providing that certain actions taken under the Malabar Tenancy Act are to continue, has “manifested its intention” that despite the repeal of the Malabar Tenancy Act, only certain rights which accrued or were acquired under the said Act will survive. Under S. 4 of the Kerala Interpretation and General Clauses Act “where any Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed”, (emphasis supplied) Dealing with S. 132 vis-a-vis S. 4 of the Kerala General Clauses Act a Division Bench of this Court has held in Adamkutty v. Damodaran Nambudiri (1970 KLT. 321) that

“By the enactment of S. 132(3) the new legislation manifests an intention contrary to the provisions of S. 4 of the Interpretation and General Clauses Act; a different intention such as is contemplated by the Section as being sufficient to prevent the preservation of a right or privilege acquired or secured under a repealed Act may arise by necessary implication and full effect has to be given to the repeal subject to any provision in the repealing statute itself”.

7. Whenever there is a repeal of an enactment the consequnce laid down under S. 4 of the Kerala Interpretation and General Clauses Act will follow unless a different intention appears. In the case of a simple repeal there is hardly any room for expression of a different intention. But when the repeal is followed by fresh legislation on the same subject, provisions of that legislation must be looked into for the purpose of determining whether they indicate a different intention (vide State Of Punjab v. Mohar Singh, Son Of Pratap Singh, AIR 1955 SC 84). We respectfully agree with the observations of the Division Bench in Adamkutty's case cited supra. The result is that we hold that no right specified or dealt with under the Malabar Tenancy Act, except those specifically made mention of in S. 132(3) read with proviso to S. 3 of the Kerala Land Reforms Act, will survive, after the repeal of that Act. A proper understanding of the relevant provisions of the Malabar Tenancy Act, 1929, the Agrarian Relations Act, 1961 and the Kerala Land Reforms Act, 1963, in the light of S. 4 of the Kerala Interpretation and General Clauses Act, as explained, by the Supreme Court in State Of Punjab v. Mohar Singh, Son Of Pratap Singh (AIR 1955 SC 84) which was followed in T. Barai v. Henry Ab Hoe ((1983) 1 SCC 177 : AIR 1983 SC 150 at Page 156) and by this Court in Adamkutty's case (1970 KLT 321) fortfies the above view. The decision of the Supreme Court in State of Gujarat v. Shri Ambica Mills ((1974) 4 SCC 656 : AIR 1974 SC 1300 at page 1307) explains the legal effect of a few provisions of the Act being declared void by the courts.

8. Another point urged by the learned counsel in this context is that the lease created by Ramanatha Iyer in favour of his wife was without authority and in violation of the express conditions stipulated in Ext. A1. Para. 11 of Ext. A1 contains a clause forbidding Ramanatha Iyer from alienating or encumbering the suit properties. In Ext. A1 itself Ramanatha Iyer had signified his unqualified consent to abide by the said condition. It is further provided in para. 27 of Ext. A1 that anything done in violation of the said condition shall be invalid. So the parties to Ext. A1 including Ramanatha Iyer have agreed to the condition that the suit properties shall not be alienated or encumbered during his life time. Ext. Bllease created by Ramanatha Iyer in favour of the 1st appellant was in violation of the express prohibition made in Ext. A1 and hence, according to the learned counsel for the respondent, Ext. B1 is void ab initio. He has further contended that the condition forbidding alienation or transfer is not repugnant to S. 10 of the Transfer of Property Act because the said section applied only to a case where property is transferred by one person to another. It is well-nigh settled that in a partition of the family properties as between the coparceners of a joint family or co-owners or co-sharers, no transfer of property is involved. In & partition each co-sharer renounces his right in the common properties. It is thus a renunciation of mutual rights and does not involve any transfer by one co-sharer to the other. In a partition the joint enjoyment is converted into enjoyment in severality. A Division Bench of the Patna High Court considered a similar condition in a partition deed and the conditions were held to be not repugnant to S. 10 of the Transfer of Property Act; (In Jatru Pahan v. Ambikajit Prasad, AIR 1957 Patna 570). The said principle was affirmed and followed in a later decision of the Division Bench of the same High Court in Bulkan Sah v. Ganga Devi (AIR 1964 Pat. 214)

9. Viewing Ext. B1 from the above angle, we are inclined to uphold the contention that the lease created by Ramanatha Iyer was invalid since he was forbidden from doing so by the conditions stipulated in Ext. A1 partition deed.

10. Even otherwise, a lease created by Ramanatha Iyer who was only a life interest holder will not survive him. The general rule, that a person cannot by transfer or otherwise confer a better title on another than what he himself has, would govern any transfer created by a life estate holder as well. The aforesaid principle is given statutory recognition in S. III (c) of the Transfer of Property Act. The general principle of law which is uniformly followed by the courts is that a limited owner is not entitled to create a subordinate interest to continue after the termination of his own interest in the property. A Division Bench of this Court has reiterated the said principle in the decision reported in Vareed… v. P.C George…. (AIR. 1971 Ker. 31).

11. The next question to be considered is regarding the right to claim mesne profits. The learned counsel for the appellants adopted a two-fold contention on that question Firstly, he contended that the accountability for the mesne profits arises only if possession of the 1st appellant is found to be unlawful, and that since the 1st appellant came into possession of the suit properties through lawful means her possession cannot be held to be unlawful. Secondly, he contended that the 1st appellant is entitled to remain in possession until payment of the full amount of the value of improvements effected by her in the property. To bolster up this latter limb of the argument the learned counsel pointed out that the court below has assessed the value of improvements and fastened the respondent with the liability to account for the same and the respondent has not chosen to challenge that finding by filing an appeal or a memorandum of cross-objections. We have already found that the lease created by Ramanatha Iyer in favour of the 1st appellant was invalid and even if it is valid, it will not survive beyond the life time of Ramanatha Iyer. Hence we need not again embark on the first part of the contention of the learned counsel. As early as 1911 the Madras High Court has held in Dakshinamurti Pillai v. Subbu Iyer (Vo. XI Indian Cases 381) that where a lease is found to be invalid because the person granting it had no power at the time to do so the lessee is bound to account for the mesne profits. In Krishnamurthy v. Satyanarnyana (AIR. 1939 Mad. 824) the Madras High Court has held that an alienee from a widow having only a limited interest is liable to pay mesne profits to the reversioner from the date of the death of the widow. The Supreme Court also has klaid down the same dictum in Mummareddi v. Durairaja AIR 1952 SC 109 at 114.

12. The respondent is entitled, under law, to challenge the findings adverse to him while supporting the decree passed in his favour. Hence the counsel for the respondent addressed arguments assailing the finding of the court below regarding value of improvements. The learned Sub Judge awarded value of improvements to the appellants on the assumption that the 1st appellant is a tenant as per S. 2(d)(iii) of the Kerala Compensation for Tenants Improvements Act, 1959 (Act 29 of 1958). The Sub Judge was wrong in making such an assumption. There was no plea by the appellant in the written statement that she is entitled to the value of improvements under Act 29 of 1958. On this short ground, she is not entitled to claim it. Moreover, the language of S. 4 of Act 29 of 1958 will negative the claim put forward now, by the appellant. As held by Raman Nayar, J. (as be then was) in Abdul Rahman v. Kunhan (1963 KLJ. 567) “it is only a tenant of the person obtaining eviction that is entitled to such compensation”. It cannot also be said, that S. 2(d)(i) or S. 2(d)(iii) of the Act, is applicable in the instant case. A transferee from the life tenant is not a tenant entitled to value of improvements. The decision in Narayana Pillai v. Gomathy Amma (1965 KLT. 612) is relevant in this context. Madhavan Nair, J. observed in the said decision thus:

“When property is given to one person for life and to another in remainder, neither can be said to be a tenant or a landlord in relation to the other. One practical test of the landlord-tenant relation is the right of the former to evict the latter from the land and it has to exist to entitle a person a landlord or proprietor”.

13. The said view was later approved by the Division Bench in Kochunni Kartha v. Balaraman (1966 KLT. 719). Krishnamoortby Iyer, J. who speaks for the Bench has stated thus:

“To hold that a person is a tenant within the meaning of S. 2(d)(iii), he must be one who came into possession of land belonging to another person. A person to whom a property is given for his life cannot be said to be a tenant within the definition and a transferee from a life tenant cannot be considered to be in possession of the property belonging to another person during the life time of the transferor, as the entire rights of the life tenant were transferred to the transferee and be is in possession of the land as belonging to himself”.

14. We concur with the said reasoning. In our view, apart from the above hurdles, another principle is involved in the matter. Under general law, such a plea cannot be put forward by a person claiming value of improvements against the paramount title holder (see Vareed v. George AIR. 1971 Ker. 31-DB). For all these reasons, we hold that the appellant is not entitled to value of improvements.

15. Therefore the 1st appellant is liable to pay mesne profits from the date of death of Ramanatha Iyer. But the claim is limited in the plaint to the period commencing from the date of the institution of the suit, and hence the 1st appellant is liable to account for the mesne profits only from that date. Though the claim made in the plaint for mesne profits is only at the rate of Rs. 1750/- per annum, the learned Sub Judge has awarded mesne profits at the rate of Rs. 8942/40 per annum. The learned counsel for the plaintiff-respondent referred us to the decisions in K.C Alexander v. Nair Service Society Ltd. (AIR 1966 Ker. 286) and Koshy v. Luckose (1975 KLT. 443) in support of this contention that the court is competent to award mesne profits at a rate higher than what is stated in the plaint. The first cited decision was rendered by a Division Bench of this Court which was followed by a single Judge in the other decision mentioned above. Subsequently another Division Bench has approved and followed the dictum laid down by the earlier Division Bench. (Vide-Saraswathi Pillai v. Parameswara Kurup, 1977 KLT 638). The principle laid down in all these three decisions is that as the plaintiff is required to state only the approximate amount or value of the mesne profits in the plaint, it is open to the court to award mesne profits at a rate higher than what is specified in the plaint. The learned counsel for the appellant did not advance any argument for a reconsideration of the legal principles followed in those decisions. Hence the quantum of mesne profits awarded by the court below need not be distrubed merely on the ground that it is far in excess of the amount claimed in the plaint. But the learned counsel contended that the defendants other than the 1st defendant should not have been burdened with the liability to account for the mesne profits. The 1st defendant alone claimed possession under the lease executed by Ramanatha Iyer. No other defendant raised any separate claim for possession of the property. Hence we are inclined to uphold the contention of the learned counsel, that the appellants other than the 1st appellant (1st defendant), are not liable to pay the mesne profits.

16. In the result we confirm the decree for possession of the suit properties together with mesne profits at the rate awarded by the court below. However, we modify the decree by directing that the plaintiff is entitled to get mesne profits only from the 1st defendant and not from the other defendants. As the 1st defendant is not entitled to value of improvements, no provision for set off in that regard need be made in the decree. The appeal is thus disposed of without any order as to costs.