ARUMUGHAM Vs. VELAYUDHA MENON

JUDGEMENT

(1.) This revision petition by defendants 12 and 13 in the suit is against the dismissal of their application under S.25 (3) of the Malabar Tenancy (Amendment) Act, 1954 for an amendment of the decree for possession passed against them. Their claim is that they are entitled to fixity of tenure under S.43 of the Malabar Tenancy Act, 1929 as that Act now stands. This provision was first introduced by the Malabar Tenancy (Amendment) Act, 1951, and the case of the petitioners is that had the Malabar Tenancy Act, 1929 as amended by the amending Acts of 1951 and 1954 been in force at the time, no decree for possession would have been passed against them.

(2.) The decree in question was passed on 4-7-1951, before the amending Act of 1951 came into force on 23-10-1951. It was a decree for the redemption of a usufructuary mortgage held by the 1st defendant, arid for possession of the land mortgaged, as against the 1st defendant and others, like the present petitioners, holding portions of the land under tee 1st defendant. There were the usual directions regarding the payment of the mortgage money and value of improvements and the apportionment of these sums between the several persons entitled to them. In E. P. 103 of 1952, the plaintiff sought to execute his decree for possession, but, on application by some of the defendants, execution was stayed under S.55 of the amending Act of 1951. It was on 8-4-1954, when execution stood so stayed, that defendants 12 and 13 came forward with their present; application contending that the transactions embodied in the deeds, Exts. B-4, B-6 and B-7, by virtue of which they hold and cultivate their respective portions under the mortgagee 1st defendant are really verumpattoms although styled as panayams in those deeds.

(3.) It is not disputed that if that be so, defendants 12 and 13 would now be entitled to the protection of S.43 of the current Act as against the plaintiff although they are not his tenants; but, at the time of the decree, they could not be granted this protection for the simple reason that this section was not then in force. That being so, it seems to us that all the requirements of S.25 (3) of the amending Act of 1954 are satisfied and that the court has to amend the decree if it finds that the transactions in question were really leases & not mortgages. This then was the only question before the court.