ABDULLA Vs. NARAYANI

JUDGEMENT

(1.) This second appeal is by defendant No. 9 in a suit which was filed by the plaintiffs for recovery of possession with a claim for the alternate relief of partition. Defendant No. 9 is an assignee from defendant No. 8 in the suit, the assignment being taken by him on 20.5.1969. According to defendant No. 9, defendant No. 8 was a lessee on the basis of a lease dated 12.3. 1962 and the said right having been taken assignment of by defendant No. 9, defendant No. 9 was entitled to fixity of tenure under the Kerala Land Reforms Act and the plaintiffs were not entitled either to recover the property or to recover khas possession of a share therein. Originally the contention of defendant No. 9 was overruled and the suit was decreed for recovery of possession. That decree of the Trial Court dated 7.10.1970 was affirmed in appeal. Defendant No. 9 filed S. A. 376 of 1980 before this Court. This Court set aside the judgments and decrees of the courts below and remanded the suit to consider the question whether defendant No. 9 was entitled to claim fixity of tenure under S.7 of the Kerala Land Reforms Act and whether the decree that is to be granted in the suit could not be one for partition rather than recovery of possession. Pursuant to this remand, the Trial Court in compliance with the requirements of S.125(3) of the Kerala Land Reforms Act held that defendant No. 9 was not entitled to claim fixity of tenure under S.7 of the Act and that the plaintiffs were not entitled to recover possession but were only entitled to the separation and delivery to them of their share. Both the plaintiffs and defendant No. 9 went up in appeal. The appeal filed by the plaintiffs was dismissed and the plaintiffs have not perused further their claim for recovery of possession of the entire property. In the appeal filed by defendant No. 9, the lower appellate court held that on the pleadings and the evidence in the case defendant No. 9 could not claim the protection of S.7 of the Kerala Land Reforms Act and hence the preliminary decree for partition was justified. It is against this decree that defendant No. 9 has filed this Second Appeal essentially raising the substantial question of law whether defendant No. 9 was not entitled to the protection of S.7 of the Kerala Land Reforms Act especially in the light of the explanation to that section.

(2.) The plaint schedule property having an extent of 24 cents belonged to one Kelappan. Kelappan died in the year 1958. Defendant No. 1 in the suit is the widow of Kelappan and the plaintiffs and defendants 2 to 4 are the children of Kelappan. Of the plaintiffs, plaintiffs 2 and 3 are minors. Kelappan had another son Gopalan, who is dead. The widow of Gopalan is defendant No. 5 in the suit and defendants 6 and 7 are the children of Gopalan. Defendant No. 8 was allegedly the lessee of the property and defendant No. 9 the assignee from defendant No. 8. According to defendant No. 9, on 12.3.1962 deceased Gopalan, son of Kelappan and defendants 1 to 3 granted a lease of the plaint schedule property to defendant No. 8 by a registered deed marked Ext. B1. The lease purported to be on behalf of the plaintiffs and defendant No. 4, also all of whom were minors on that day. The mother, the widow of Kelappan acted as the guardian of the minors. On 20.5.1969 defendant No. 8 assigned the leasehold under Ext. B2 to defendant No. 9. The grant of the lease by the mother was found to be not binding on the plaintiffs and defendant No. 4. But it was held by the lower appellate court that defendant No. 4 not having questioned the transaction, was not entitled to claim any relief. It is on that basis that a decree for partition and delivery of three out of eight shares to the plaintiffs was passed. It is the case of defendant No. 9 that if his plea for fixity of tenure under the Kerala Land Reforms Act based on S.7 of the Act is upheld, the plaintiffs would not be entitled to a division and separation of their share by metes and bounds but would be entitled only to divide the compensation that is payable by a cultivating tenant to a landlord in terms of the Act.

(3.) S.7 of the Act as it occurred in the Parent Act, Act 1 of 1964 read as follows: