KRISHNA IYER Vs. RAMAKRISHNA IYER

JUDGEMENT

(1.) THIS Second Appeal is by the plaintiff in a suit for recovery of property, with mesne profits. The suit property belonged to the tarwad of the 6th defendant, who leased it to Parasu Pattar, the grand-uncle of defendants 1 and 2, as per a 'pattapidipadadharam' Ext. A3, dated September 9 ,1913. The tenancy under Ext. A3 devolved ultimately on defendants 1 and 2 in this case. There was a subsequent renewal of the lease in favour of defendants 1 and 2 as per Ext. A4 dated July 20, 1936, by the 6th defendant; but the plaintiff ignored the same as invalid for want of necessity binding on the lessor's tarwad. The suit property was sold in public auction in O. S. No. 145 of 1945 which was a suit for partition of the 6th defendant's tarwad, and from the auction purchaser therein the plaintiff has taken an assignment of the property and instituted the present suit for recovery of the same. The contentions were that Ext. A4 was valid and binding on the plaintiff, that it amounted to a verumpattom lease entitling the defendants to a fixity of tenure, and that the claim for mesne profits is in any view unsustainable. The learned Munsiff found that the lease by Ext. A4 was valid, that it was of a building with site appurtenant thereto and therefore did not confer any fixity of tenure on the defendants and allowed the suit as prayed for. The learned subordinate Judge on appeal held the lease to be one of land with the house thereon and therefore conferred fixity on the tenants, that the suit having been instituted within two years of the assignment of the property taken by the plaintiff was hit by S. 25 of the Malabar Tenancy Act as amended by Act VII of 1954 and on both these grounds dismissed the suit with costs throughout. Hence this Second Appeal by the plaintiff.

(2.) BOTH the courts below held Ext. A4 valid and binding on the plaintiff. The plaintiff is not a member of the 6th defendant's tarwad and cannot therefore be allowed to impugn the lease granted by the 6th defendant as karnavan of his tarwad. It is trite law that a stranger to a tarwad cannot question an alienation of tarwad property on the ground of want of consideration or necessity or of the requisite consent. So far as the outside world is concerned the karnavan is the accredited representative of the tarwad and his transactions are therefore of the tarwad itself. Whether his acts were detrimental to the interests of the tarwad is a matter of concern to the members of the tarwad only; and if they have no such complaint the transaction must stand. Ext. A4 is not questioned by any member of the sixth defendant's tar-ward and must therefore be held to be the transaction under which the property is demised to the defendants. Though the suit is based on Ext. A3, both the Courts below have proceeded as if it was on Ext. A4, and as the maintainability of the suit is not challenged even in this court on the ground of mistake in the cause of action the suit will be treated as one for recovery of property on the basis of Ext. A4 only.

(3.) THE learned counsel for the respondent drew a distinction between the expressions "land and building" and "building with the land appurtenant thereto" used in S. 3 of the kerala Agrarian Relations Act (IV of 1961) which now governs the relation of the landlords and tenants in this State. In enumerating the exemptions from the applicability, of the Aft in S. 3 thereof, mention is made in clause (2) of leases "of buildings with the land appurtenant thereto" and in clauses (3) (4), (5) and (6) of leases "of land or of buildings or of both. " THE contention therefore is that the description of property in the suit lease-deed (Ext. A4) being of paramba (land) and building as two separate entities the exemption under clause (2) is not attracted thereto. This contention does not appear to me to be correct. What is contemplated in clauses (3) to (6) is any land , or building or both; no special prominence is given to building and it is not necessary that the land should be appurtenant to a building but may be any extensive land with or without a building thereon. But the exception in clause (2) is only of a building with the land that forms the site thereof and the appendage to that building the site and the appendage must necessarily be looked upon as part of or necessary to the building itself. In the eye of law they all form one unit only. If the land involved in the lease is only the backyard of the residential building therein, it necessarily follows that the land is only appurtenant to the building and forms one unit with the house. THE suit lease is therefore covered by the exemption in clause (2) to S. 3 of the Kerala Agrarian Relations act. THE defendants-tenants are not therefore entitled to any fixity in respect of Ext. A4 lease and the claim of the plaintiff for recovery of the property has therefore to be allowed.