CHELLAPPAN Vs. K ALYANI

JUDGEMENT

(1.) BY an "ozhivadharam" of the year 1112 M. E. one Kochaiyappan who was the then karnavan of the marumakkathayam tarwad of respondents Nos. 1 and 2 before us gave possession of the disputed property, 91 cents of land in Survey No. 344/5 of Aryad South Village in Ambalapuzha Taluk to the mother of the revision petitioner, the 2nd applicant before the Land tribunal (she is not a party before us in this revision petition ). Kochaiyappan was in possession of the said land under an "anubhavaudampadi" of the year 1098 to which all the members of the tarwad were parties. The executee under the ozhivadharam, viz. , the 2nd applicant before the Land Tribunal, is described in that document as Kochaiyappan's daughter, but admittedly she is only an'adopted' daughter, and is not a member of the tarwad. After the death of Kochaiyappan the members of the tarwad filed O. S. No. 67 of 1956 on the file of the Sub Court , Alleppey, for partition of the tarwad properties including the disputed property. As per the decree in that suit the said property was allotted to respondents Nos. 1 and 2 before us who were counter petitioners Nos. 1 and 2 before the Land Tribunal. In execution of that decree the allottees took delivery of the land on 5-101970. In respect of the building standing on the property the applicants before the Land Tribunal appear to have raised a contention that they are kudikidappukars. That contention was overruled by the execution court and the execution court's decision was confirmed on appeal in A S No. 323 of 1971. Ultimately the building was also taken delivery of on 5- 4-1973. Pending the execution proceedings and the enquiry into the claim put forward by the applicants that they are kudikidappukars, in 1970, after the Kerala Land reforms Act 1963 (Act I of 1964) (for short the Act) was amended by Act 35 of 1969 they also put in a petition under S. 72b of that Act for. assignment of the right, title and interest of the allottees under the partition - decree which according to them had vested in the Government under S. 72 of that Act as amended by Act 35 of 1969. According to the applicants, before the Land tribunal the ozhivadharam earlier mentioned purports to be a lease deed granted by a person not competent to lease the land and is a registered document as envisaged by S. 7b of the Act. The short question on these facts is as to whether the ozhivadharam is such a document as claimed by the applicants. The land Tribunal held that it is so, but the appellate authority held that that document is only a gift deed by Kochaiyappan in respect of what all rights he had over that property.

(2.) UNDER the ozhivadharam Kochaiyappan gave possession of the property to the 2nd applicant stating that he has decided to relinquish his possession of the property to her during his lifetime itself in lieu of his love and affection towards her:

(3.) UNDER S. 72 of the Act, on a date to be notified by the government in that behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants entitled to fixity of tenure, vest in the Government free from all encumbrances created by the landowners and intermediaries. S. 72f (1) provides that immediately after the vesting of the right, title and interest of the landowners and intermediaries as provided for in S. 72, or where an application under S. 72b or S. 72bb has been received by the Land Tribunal, that Tribunal shall publish or cause to be published a public notice in the prescribed form. S. 72b enables, as already noticed, the tenant to seek assignment of the right, title and interest in the holding that are vested in the Government under S. 72. The next relevant provision to be noticed is S. 72f (5 ). That sub-section directs the Land Tribunal to pass an order specifying the matters mentioned as (a) to (i) in that sub-section. The last mentioned clause, viz. , clause (i)reads: " (i) such other particulars as may be prescribed. " The order contemplated by sub-section (5) is to be passed by the Tribunal after considering the claims and objections received pursuant to the notice issued under S. 72f (1) and the individual notice served under sub-section (2) thereof, as also the advice received from the village committee as envisaged by subsections (3a) and (3b) of S. 72f. The objectors and the claimants are also entitled to be heard if they appear on the notified date.