KALLIANI AMMA Vs. KERALA VARMA THIRUMULAPAD

JUDGEMENT

(1.) This second appeal was referred to a Division Bench by a learned Judge of this Court. Before the learned Judge the correctness of the decision in Subramanian v. Kunjamma 1983 KLT 351 was disputed. The point that arises for consideration is whether an application for resumption by a small holder under S.18 of the Kerala Land Reforms Act 1 of 1964 against a mortgagee who is a deemed tenant under S.4A can be filed after the expiry of six months from 1-1-1970, the date of commencement of the Kerala Land Reforms Amendment Act, 35 of 1969.

(2.) The appellants are plaintiffs 2 to 4 in a suit for redemption filed in 1968. When Kerala Act 35 of 1969 came into force on 1-1-1970 the plaint was amended challenging S.4A incorporated in Kerala Act 1 of 1964 as unconstitutional. The contention that even if that section was not unconstitutional, the plaintiffs, as small holders, were entitled to resume half the plaint schedule properties under S.17 of Act 1 of 1964 was also taken subsequently. The first contention regarding constitutionality was taken in the amendment filed on 17-10-1970 while the second contention regarding the right of resumption was taken only in the amendment filed on 16-12-1972. The Trial Court dismissed the suit holding that it had no jurisdiction to allow resumption of half the plaint schedule property under S.17 of Act 1 of 1964. The lower appellate court dismissed the appeal filed by the plaintiffs and it was under the above circumstances that this second appeal was filed.

(3.) The facts that the appellants are small holders and the respondents are deemed tenants under S.4A of Kerala Act 1 of 1964 are not disputed in this case. S.17 of Act 1 of 1964 which allows resumption by small holders, does not fix any time limit for applying for resumption. The question is whether simply because no time limit is fixed by S.17 of the Act, can an application for resumption by a small holder be filed after the rights of the landlords in the land in question vested with the State under S.72 of the Act. S.72 which provides for vesting of the landlords' rights in the State on a date notified by the Government in that behalf provides for certain exemptions. As per S.72(4), if the landowner or the intermediary is a small holder, the vesting will take effect only on the expiry of six months from 1-1-1970, the commencement of Amendment Act 35 of 1969, if no application for resumption of the holding or part of the holding had been preferred. The Scheme of the Act is that after vesting, no application for resumption is maintainable. Otherwise, there is no reason why the vesting has been postponed by six months in the case of a small holder (This postponement is there in the case of some others also). The landlords' rights in all lands in the possession of tenants who have got fixity of tenure under S.13 of the Act vested with the State on 1-1-1970. It goes without saying that after this vesting the landlord, even if he is a small holder, cannot have any rights in the land and hence an application for resumption cannot be filed. This may be the reason why the vesting has been postponed by six months by S.72(4) (a). In this case, the amendment of the plaint incorporating a prayer for resumption was filed in the Court only on 16-12-1972. As that was more than six months after 1-1-1970, it goes without saying that no resumption could be possible. In this view of the matter, the judgment and decree of the lower appellate court confirming the judgment and decree of the Trial Court refusing resumption and dismissing the suit do not call for any interference in this second appeal.