N. Parameswara Pillai and ors. Vs. Kunchali Lekshmi and ors. - Court Judgment

Shamsuddin, J.

1. The important question of law that has been referred to the Full Bench for consideration is the period of limitation within which an application for resumption has to be filed under Section 17 of the Kerala Land Reforms Act 1963 (hereinafter referred to as the Act for short), by a small-holder for resumption of a portion not exceeding one-half of the holding from deemed tenants under Section 4A of the said Act, introduced by Act 35 of 1969.

2. The facts leading to the above C.R.P. and the circumstances in which the matter was referred to the Full Bench, are as follows : The petitioners filed O.S. No. 1032 of 1966 for redemption of a mortgage. While the matter was pending Act 35 of 1969 came into force which inserted Section 4A. As per this section, certain mortgagees and lessees of mortgagees were treated as deemed tenants. It is not in dispute that respondents 1 to 5 are deemed tenants under Section 4A of the Act. It was so held in O.S. No. 1032/1966 and the decree of the Munsiff's Court became final. Thereafter the petitioners filed O.A. No. 1 of 1977 before the Land Tribunal, Trivandrum, under Section 17 of the Kerala Land Reforms Act for resumption of one-half of the property of an extent of 1 acre 50 cents comprised in Sy. No. 237 of Ulloor Village, Trivandrum, from respondents 1 to 6 on the ground that the petitioners are small-holders and are entitled to resume one-half of the property from respondents 1 to 6 who were held to be deemed tenants, as defined in Section 4A of the Act. This application was filed long after the expiry of six months from the commencement of Act 35/1969. It was resisted by respondents 1 to 6 contending that the application was time barred. The Land Tribunal following the decision of Janaki Amma, J. in Raghavan Nair v. Narayana Panicker 1976 Ker LT 369 : (AIR 1977 Ker 11) held that there is no bar of limitation for filing application by a smallholder for resumption of one-half of the holding from deemed tenants and that therefore the petitioners are entitled to resumption of one-half of the petition schedule property, namely 75 cents. He also issued a commission to ascertain the value of improvements and for division of property. Aggrieved by the order of the Land Tribunal, respondents 1 to 6 filed A.A. No. 828 of 1978 before the Appellate Authority (Land Reforms) Alleppey. Before the Appellate Authority also it was contended by respondents 1 to 6 herein that the application for resumption is barred by limitation. The Appellate Authority found that the prescribed period of limitation for filing the application for resumption in respect of cases covered by the amendment Act 35/1969 is six months from the commencement of the said Act. In reaching this conclusion, the appellate Authority followed the decision in Kunhamina Umma v. Krishnan ILR (1978) 2 Ker 371 which took the view that the time prescribed for filing the application for resumption in respect of tenancy created by the amendment Act 35/1969 is six months from the commencement of the amendment Act. Therefore the appellate authority held that the application filed by the petitioners for resumption after the expiry of the aforesaid period is time-barred and in this view of the matter, the order of the Land Tribunal granting resumption was reversed and the application was dismissed. It is against the judgment of the Appellate Authority that the petitioners have filed this C.R.P.

3. When the C.R.P. came up for hearing before Sreedharan J., the learned Judge referred the matter to be considered by a Division Bench on the ground that conflicting views have been expressed regarding time limit for filing an application for resumption of lands from deemed tenants under Section 4A of the K.L.R. Act. Consequently the matter was posted before a Division Bench which took the view that the matter required consideration by a larger Bench, in view of, the apparent conflict between three Division Bench decisions of this Court on this point. It is thus the matter came up before us.

4. Before dealing with the rulings of this Court it is necessary to examine the relevant provisions relating to resumption. We are concerned here with only resumption by a small-holder under Section 17 of the Act which reads as follows :

'17. Resumption by small-holder without prejudice to the right of resumption under Section 16, a small holder (other than a sthani or the trustee or owner of a place of public religious worship) may resume from his tenant a portion of the holding not exceeding one half:

Provided that, by such resumption, the total extent of land in the possession of the small holder shall not be raised above two and a half standard acres or five acres in extent, whichever is greater;

Provided further that no land shall be resumed under this section from a tenant who was entitled to fixity of tenure in respect of his holding immediately before the 21st January, 1961 under any law then in force.'

Section 18 of the Act which deals with general conditions and restrictions applicable to resumption under Sections 14, 15, 16 and 17 reads thus :

'18. General conditions and restrictions applicable to resumption under Sections 14, 15, 16 and 17 :-- Resumption of land under Sections 14, 15, 16 and 17 shall also be subject. to the following conditions and restrictions, namely : --

(1) in respect of tenancies subsisting at the commencement of this Act, no application for resumption shall be made after a period of one year from such commencement:

Provided that where the landlord is -

(i) a minor; or

(ii) a person of unsound mind; or

(iii) a member of the Armed Forces or a seaman and the tenant is entitled to fixity of tenure; or

(iv) a legal representative of such member or seaman, was the landlord of the land in respect of which resumption is claimed, the application for resumption may be made within six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 :

Provided further that in the case of a landlord referred to in Clause (iii) or Clause (iv) of the foregoing proviso, the application for resumption may be made after the expiry of the said period of six months and before the date notified under Section 72, if such landlord was prevented by sufficient cause from making the application within the said period of six months;

(2) The right of resumption in respect of a holding shall be exercised only once, and the order of the Land Tribunal allowing resumption shall be given effect to only at the end of an agricultural year;

(3) no kudiyiruppu shall be resumed;

(4) no land in the possession of a tenant who is a member of a Scheduled Caste or Scheduled Tribe shall be resumed.'

Sub-section (1) of Section 18 of the Act would show that in respect of tenancies subsisting at the time of the commencement of the Act, no application can be filed for resumption after the period of one year from such commencement. However, the proviso to Sub-section (1) exempts certain categories of landlords such as a minor, a person of unsound mind, a member of the Armed Forces or a seaman and a legal representative of such member or seaman from the rigour of this period of limitation, and provides for a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act 1969. There is a further extension of period provided for in the case of a member of Armed forces and Seaman and legal representatives even after the expiry of the said period up to the date notified under Section 72 of the Act, if such landlord was prevented by sufficient cause from making the application within the aforesaid period of six months. The petitioners in this case are small-holders and the respondents became tenants only by virtue of the provisions contained in Section 4A of the Kerala Land Reforms Act which was inserted by Act 35 of 1969 which came into force on 1-1-1970 and therefore the periods of limitation referred to above are not applicable in the case of resumption in the instant case.

5. Section 72 of the Act provides for vesting of right, title and interest of landowners and intermediaries in respect of holdings held by cultivating tenants entitled to fixity. This Section as amended by Act 35 of 1969 reads as follows :

'72. Vesting of landlords' right in Government. -

(1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date :

Provided that nothing contained in this sub-section shall apply to a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is pending on such date before any court or tribunal or in appeal or revision.

(2) Where in the case of a holding or part of a holding mentioned in the proviso to Sub-section (1), the order rejecting the application for resumption, either in part or in full, has become final, the right, title and interest of the landowner and the intermediaries, if any, of the holding or part of the holding, as the case may be, in respect of which resumption has not been allowed shall, with effect from the date on which the application for resumption has been finally rejected, vest in the Government free from all encumbrances created by the landowner and the intermediaries, if any, and subsisting thereon on the said date.

(3) Where any land or portion of a land is restored to the possession of any person under the provisions of this Act after the date notified under Sub-section (1), the right, title and interest of the landowner and intermediaries, if any, in respect of such land or portion of land shall, from the date of such restoration, vest in the Government free from all encumbrances created by the landowner and intermediaries and subsisting thereon on the said date.

(4) Where in the case of a holding or part of a holding, the landowner or an intermediary is a minor or a person of unsound mind or a member of the Armed Force or a seaman or a legal representative of any such member or seaman, or a small holder, the right, title and interest of the landowner and intermediaries, if any, in respect of such holding or part of a holding shall vest in the Government -

(a) on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act 1969, or on the date notified under Sub-section (1), whichever is later, in case where no application for resumption of the holding or part of the holding has been preferred;

(b) in any case where application for resumption has been preferred on the date on which the order rejecting such application, either in part or in full, has become final or on the date notified under Sub-section (1), whichever is later.

(5) Where an intermediary has resumed any land under the provisions of this Act, the right, title and interest of the landowner and the other intermediaries, if any, in respect of the said land shall vest in the Government free from all encumbrances created by the landowner and the other intermediaries with effect from the date of resumption or the date notified under Sub-section (1), whichever is later.'

6. The date of vesting of the right, title and interest of the landlord under Section 72 of the Act has been notified as 1-1-1970 and generally the vesting will take place on that date and the landlord and intermediaries will not have right thereafter as a result of the vesting of their rights in the Government. However, Section 72 postpones the date of vesting in the case of certain categories of persons. Sub-section (4) of Section 72 lays down that in the case of a holding or part of a holding, the landlord or intermediary is a minor or a person of unsound mind or a member of the Armed Forces or Seaman or a small-holder or a legal representative of such member or a seaman or a small-holder the right, title and interest of the landlord and intermediaries shall vest in the Government on the expiry of six months from the commencement of the Act 35 of 1969 or on the date notified under Sub-section (1) of Section 72 whichever is later in case where no application for resumption of the holding or part of the holding has been preferred and in any ease where application for resumption has been preferred, on the date on which the order rejecting such application either in part or in full has become final or the date notified under Sub-section (1) of Section 72 whichever is later.

7. The resultant position is that generally on the notified date under Sub-section (1) of Section 72 for vesting and in cases, the date of vesting has been postponed by virtue of the proviso to Sub-section (1) of Section 72 and also by virtue of Sub-sections (2) to (4) of Section 72. on the dates to which vesting is postponed, the right, title and interest of the landlord and the intermediaries will be extinguished and they will cease to become the landlord or intermediary. On 1-1-1970 the respondents became deemed tenants by virtue of Section 4A of the Act as amended by Act 35 of 1969. Till 1-1-1970 the respondents were not tenants and the petitioners were not small-holders and therefore the petitioners could not have filed an application for resumption and they did not file any application. Therefore, in the instant case an application for resumption ought to have been filed before the expiry of six months from the commencement of the Act 35 of 1969 in view of Sub-section (4) of Section 72 of the Kerala Land Reforms Act. After six months from the date of commencement of Act 35 of 1969 the petitioners in this case ceased to be landlords by reason of the vesting of their right, title and interest in the Government.

8. In Raghavan Nair v. Narayana Panicker 1976 Ker LT 369 : (AIR 1977 Ker 11) Janaki Amma J. took the view that there is no period of limitation for filing application for resumption in respect of deemed tenants inasmuch as Section 18(1) of the Act which prescribes the period of limitation for filing an application for resumption applied only to tenancies subsisting at the commencement of the Act. However the effect of vesting of land in the Government was not noticed by the learned Judge. The fact that Section 18(1) of the Act does not apply to deemed tenancies led the learned Judge to the conclusion that there is no time limit for filing an application for resumption in respect of deemed tenants. In Revindranathan Nair v. Saraswathy Amma 1982 Ker LT 997 the question again arose for consideration of a Division Bench of this Court. While holding that the period of limitation of one year mentioned in Sub-section (1) of Section 18 applies only to the tenancies subsisting at the commencement of the Act and that the learned single Judge was right in holding in Raghavan Nair's case (AIR 1977 Ker 11) that the limitation period of one year is not applicable to deemed tenancies under Section 4A of the Act as amended by Act 35 of 1969, the Division Bench took the view that the conclusion of the learned Judge that there is no time limit for filing application for resumption does not appear to be correct in view of the provisions contained in Sub-section (1) of Section 72 which came into force on 1-1-1970 and the extended period provided under Sub-section (4) of Section 72 of the Act for such vesting in respect of holdings of which the land-owner or the intermediary is a smallholder. If we may say so with great respect, the Division Bench in this ruling correctly held that the reference to commencement of 'this Act' in Sub-section (1) of Section 18 is to the Principal Act which came into force on 1st April, 1964 and that the reference to the commencement of the Kerala Land Reforms (Amendment) Act in the said sub-section is to 1-1-70, the date on which the said Amendment Act came into force. In this view of the matter, the Division Bench further held that an application filed on 5-3-1970 for resumption of land from the deemed tenants before the expiry of the period fixed for the vesting in Government of the right, title and interest of the small-holder in the land under Sub-section (4) of Section 72 of the Act was well within the time. We may state that this is the conclusion which we have arrived at on consideration of the relevant provisions in the Act, as we have indicated above.

9. Two more decisions of two Division Benches of this Court require consideration. In Subramonian v. Kunhamma 1983 Ker LT 351, a Division Bench of this Court held that one year period prescribed by Section 18(1) of the Act cannot have application in respect of resumption of lands from deemed tenants created by Section 4A of the Act, which was introduced only with effect from 1-1-1970. This Division Bench further held that no period of limitation has been prescribed for filing application for resumption by smallholders in respect of deemed tenancies, but felt that the difficulty arising by reason of absence of any specific period provided in the Act for filing application by such smallholders for resumption can be resolved by resort to the provisions of the Limitation Act. In this connection the Division Bench relied on the decision of the Supreme Court in Kerala State Electricity Board v. T. P.K. 1976 Ker LT 810: (AIR 1977 SC 282) and held that the said ruling would supply the answer to the question. According to the learned Judges, a land owner who gets a new right under the Amending Act is governed by Article 137 of the Limitation Act to present an application for resumption. The Division Bench held that the right accrued to the small-holders from 1-1-1970 and they had three years period from that date for filing application and that therefore the application filed in that case on 24-12-1970 was well within time.

10. We are unable to agree with the view taken by the Division Bench in Subramonian's case 1983 Ker LT 351 that a small-holder had 3 years' period for filing an application for resumption under Section 137 of the Limitation Act, in respect of deemed tenancies. Unfortunately, the Division Bench has not taken note of the fact that in the case of a small-holder, the right, title and interest of the landlord and intermediary would vest in the Government under Section 72(4) of the Act on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 where no application for resumption of the holding or part of the holding has been preferred. After vesting no question of resumption can arise since the landowner or intermediary who was a smallholder ceased to be a landowner or intermediary on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act 1969 in a case where no application for resumption of the holding had been preferred. In a case where an application for resumption has been preferred, the vesting will take place only on the date on which the order rejecting the application either in part or in full has become final or on the date notified under Sub-section (1) of Section 72 whichever is later. The Supreme Court in the K.S.E.B.'s case 1976 Ker LT 810 : (AIR 1977 SC 282) was dealing with an application to the District Judge and it is in that context the Supreme Court held that the District Judge acts judicially as a court in determining the payment of compensation payable under Sections 10 and 16(3) of the Indian Telegraph Act, read with Section 51 of the Indian Electricity Act. The Land Tribunal is not a civil Court and therefore the provisions of the Limitation Act cannot be made applicable in respect of applications to the Land Tribunal except to the extent where any provisions of the Limitation Act have been made specifically applicable to proceedings before the Land Tribunal by the Act. Section 5 of the Limitation Act has been made specifically applicable to all proceedings under the Act by virtue of Section 108 of the Act, and we have not been able to find any other provisions of the Limitation Act so made applicable and j therefore Section 137 of the Limitation Act cannot be relied on for determining the period of limitation. In any event, since resumption is impossible after vesting of the right, title and interest of the landlord and intermediary in the Government, no application for resumption can lie thereafter.

11. In the circumstances, with great respect, we disagree with the conclusion of the Division Bench in Subramonian's case (1983 Ker LJ 351) that three years' period from 1-1-1970 is available for filing an application for resumption under Section 17 of the Act in respect of deemed tenancies.

12. Kalliani Amma v. Kerala Varma Thirumulpad 1985 Ker LT 777 : (AIR 1986 Ker 250) is the other Division Bench ruling of this Court which considered this question. In this case the learned Judges came to the right conclusion that in view of Section 72(4) of the Act, the right, title and interest of the landowner and the intermediary who is a small-holder in respect of holding of deemed tenancy, vesting will take place on the expiry of six months from 1-1-1970 where no application has been preferred for resumption. The learned Judges held that according to the scheme of the Act after vesting no application for resumption is maintainable. We are in respectful agreement with the reasoning of the Division Bench in Kalliani Amma's case.

13. From the foregoing discussion it would be clear that the period of limitation for resumption under Section 17 of the Act by a small-holder in respect of deemed tenants is six months from 1-1-1970, the date of the commencement of Amendment Act 35 of 1969 in a case where no application for resumption has been preferred and application after that date is not maintainable in view of the vesting of the right, title and interest of small-holder and the intermediary in the Government on the expiry of that period. That being the position, we overrule the decision of the learned single Judge in Raghavan Nair v. Narayana Panicker 1976 Ker LT 369 : (AIR 1977 Ker 11) and the ruling of the Division Bench in Subramonian v. Kuniamma 1983 Ker LT 351 and hold that the rulings of the Division Benches of this Court in Ravindranathan Nair's case 1982 Ker LT 997 and Kalliani Amma's case 1985 Ker LT 777 : (AIR 1986 Ker 250) have correctly laid down the law on the point.

14. In the instant case, the application was filed on 8-1-1977, long after the expiry of six months from 1-1-1970 and therefore it is not maintainable in view of the fact that the right of the petitioners vested in Government on the expiry of six months from 1-1-1970 by reason of the provisions contained in Section 72(4) of the Act. The petitioners had no subsisting right to file an application for resumption.

15. Before parting with this case, we may advert to one aspect which has emerged in the course of the arguments, with a pointed ness from the factual matrix. Section 4A conferred substantial benefits on those referred to as 'mortgagees' under the pristine property law. Until the transmutation of a mortgage into a tenancy so effected by the Act as on 1-1-1970, the relationship between the parties was that of mortgagor -- mortgagee. A mortgagor is not a landlord. He becomes a small holder in relation to a mortgage holding as a result of the Amendment Act. In view of those circumstances, the former mortgagor who has now turned out to be a small-holder could not have thought of a resumption application earlier. Even as on 1-1-1970, when certain types of mortgagees became tenants under Section 4A, doubts and disputes still persisted about the entitlement of a mortgagee in a given case to the benefits of Section 4A. There was vast scope even for legal disputations, as is discernible from judicial decisions concerning the various facets of Section 4A. As is evident from the present case itself, it took a long period (a decade in the present case) for a Court to finally decide whether the particular mortgagee in question came within the purview of Section 4A. It was soon thereafter that the application for resumption in the present case was filed. This cannot be an isolated case. Very many persons would have had similar difficulties, arising out of the complexities of law and the prolongation of litigation. When a rigid time limit of six months has been fixed by the Legislature (as we have so held) these supervening difficulties and legal complications would not have been within its contemplation. The Legislature had provided for suitable extensions, when such difficulties had been anticipated. For example, under the proviso to Section 22(1), the vesting date in relation to cases coming under that sub-section is postponed, till after the pendency of a resumption application before any Court or Tribunal or in appeal or revision. A similar benefit is conferred in limited contingencies under Section 72(4)(b) also.

16. Those small holders who would have bona fide felt doubt about the mortgages in question coming within Section 4A and awaited the culmination of the legal proceedings in which their claims were being considered, would altogether lose their right, when at a later date they are made to realise by a Court decision that the mortgage did come within the ambit of Section 4A. This is an avoidable hardship. However, it is only for the Legislature to consider the matter and remedy the situation, if deemed fit Understandable frustration is likely to arise in the minds of a section of society, unorganised and suffering, and frustrated in many ways by the impact of the social legislation. It may only be a fair and just measure if what the Legislature itself had conferred on them as a limited right is permitted to be availed of by that segment of society. We trust that this will receive due and serious consideration of the Government and of the Legislature.

17. In the result, there is no merit in the C.R.P. and it is accordingly dismissed. However, in the circumstances, there will be no order as to costs.