RUGMINI AMMA Vs. NAYANAR

JUDGEMENT

(1.) Availability of fixity of tenure under the Kerala Land Reforms Act and the benefits of S.53-A of the Transfer of Property Act, coupled with the question whether these two contentions are simultaneously available to the respondents, are the matters to be decided in this second appeal filed by the plaintiffs.

(2.) Suit property is 90 cents of land and a building. It belonged to deceased Rugmini Amma. She was the paternal grandmother of the appellants, under whom they claim. Their claim is based on the original of Ext. A2 will executed by the deceased. Genuineness of the will is denied, though not seriously. Respondent defendant is the Nayanar Balika Sadan, an institution established to protect destitutes, represented by its Secretary. Rugmini Amma admittedly rented out the building to the respondent and its office is housed in it. Respondent says that it was not a lease of the building alone, but a lease of the land also and there is fixity of tenure under the Kerala Land Reforms Act. That question was found in favour of the respondent by the Land Tribunal on reference and the finding was confirmed on the merits by the appellate court Even the appellants admit that the land and building are in the possession of the respondent and they have no case that possession is otherwise than under the lease. Finding regarding possession as lessee and fixity of tenure under the Kerala Land Reforms Act cannot now be challenged.

(3.) Admittedly there was Ext. B1 agreement between the respondent and Rugmini Amma on 18-5-1957 to sell the property for Rs.15,000/-. An advance of Rs.4,000/- was paid on that date followed by admitted payments of Rs.3,000/- more in three instalments, evidenced .by Exts. B2, B3 and B4. Case of the respondent is that the possession as lessee was .thereafter continued, in part performance of the contract and the balance amount of Rs.8,000/- was also paid, as evidenced by Ext.B5. This fact is proved by the depositions of DWs. 1 and 2. None of the appellants went to the box. . Genuineness of Ext.B5 and the fact that respondent continued in possession after Ext.B1 in part performance of the contract are matters which cannot now be challenged.