Dismissed

B.v.Krishnan v. C.a.Subbaraman

Kerala HC19 Apr 2016RSA/451/2014

Case brief

AI extract

What is this about?

In this second appeal challenging a decree for possession, the High Court examined whether endorsements on lease deeds validly extinguished lessee's interests without a registered instrument. The Court held the findings regarding endorsements were not perverse and the surrender was valid even without registration due to low value and statutory exclusions. Appeal dismissed.

What did the court decide?

The second appeal was dismissed with no merit found.

B.v.Krishnan Vs C.a.Subbaraman — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF APRIL 2016/30TH CHAITHRA, 1938

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RSA.No. 451 of 2014

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JUDGMENT DATED 24.1.2014 IN AS 86/2002 OF THE 1ST ADDITIONAL DISTRICT COURT, PALAKKAD

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JUDGMENT DATED 16.1.2002 IN OS 197/1973 OF THE PRINCIPAL MUNSIFF COURT, PALAKKAD

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APPELLANT/(SUPPLEMENTAL RESPONDENT NO.4/LEGAL REPRESENTATIVE OF --------------------------------------------------------------DECEASED 2ND DEFENDANT):

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B.V.KRISHNAN, AGED 65 YEARS,

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S/O VENKITESWARAYYER, 302, VTH MAIN, KALYAN NAGAR, II BLOCK, BANGALORE - 560 043.

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BY ADVS.SRI.E.RAMACHANDRAN

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SRI.R.UMASANKAR

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SRI.R.MANIKANTAN

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RESPONDENT(S) (RESPONDENTS 1 IS THE PLAINTIFF, 2ND RESPONDENT

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IS THE 3RD DEFENDANT IN THE SUIT):

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1. C.A.SUBBARAMAN, AGED 65 YEARS, S/O C.S. ANANTHANARAYANA IYER (LATE), 'PALACE', KALPATHY, PUTHUR AMSOM, PALAKKAD-678 003.

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2. RAMANI, AGED 63 YEARS, BUSINESS, S/O T.V.S. IYER (LATE), GANESH BAUGH, MATUNGA, BOMBAY-19.

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R1 BY ADVS. SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN

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SRI.P.B.SUBRAMANYAN

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SRI.SABU GEORGE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-02-2016 THE COURT ON 19-04-2016, DELIVERED THE FOLLOWING:

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msv/

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P.B.SURESH KUMAR, J.

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R.S.A. No.451 of 2014

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Dated 19^th April, 2016.

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J U D G M E N T

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The legal representative of the deceased second

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defendant is in appeal. The suit was one for injunction initially, but later converted into a suit for recovery of possession.

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The suit property belonged to Kalpathi Vishwanatha Swami temple and the same was outstanding on a lease in favour of the father of the plaintiff namely, C.S.Ananthanarayana Iyer. C.S.Ananthanarayana Iyer sub leased the suit property to one T.V.S.Iyer. T.V.S.Iyer was a person settled at Mumbai for quite a long time. The first defendant is the wife of T.V.S.Iyer and the third defendant is his son. Exts.A4 and A5 are the lease deeds executed

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jointly by C.S.Ananathanarayana Iyer and T.V.S.Iyer, of which Ext.A4 is dated 19/11/1942 and Exts.A5 is dated 29/5/1943. T he lease in respect of the suit property was obtained by T.V.S.Iyer to enable him to construct a residential building therein. The leasehold was however not utilised by T.V.S.Iyer for the purpose intended. According to the plaintiff, since T.V.S.Iyer could not make use of the leasehold for the purpose intended, he agreed to surrender the leasehold interests and consequently C.S.Ananthanarayana Iyer went to Mumbai, settled the dues payable to the lessee and obtained surrender of the leasehold interests of T.V.S.Iyer by getting endorsements to that effect on the lease deeds. It is the case of the plaintiff that thereafter his father C.S.Ananthanarayana Iyer was in possession of the suit property uninterruptedly till his death in the year 1961 and after the death of C.S.Ananthanarayana Iyer, he is in possession of the suit

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property as the legal representative of

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C.S.Ananthanarayana Iyer. It is also the case of the plaintiff that of late the second defendant who is a very influential person in the locality has attempted to trespass into the suit property. The suit was filed, in the circumstances, claiming a decree of prohibitory injunction restraining defendants 1 and 2 from trespassing into the suit property. Later, the plaint was amended stating that the second defendant has trespassed into the suit property on the strength of Ext.B1 assignment deed executed by defendants 1 and 3 purporting to transfer their rights in the suit property to him. The case set up by the plaintiff in the amended plaint is that since late T.V.S.Iyer had surrendered the leasehold interests in the property, Ext.B1 assignment deed does not confer any right in the suit property on the second defendant. The relief claimed in the amended suit was a decree for

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recovery of possession of the suit property on the strength of the previous possession.

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The second defendant contested the suit.

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According to him, late T.V.S.Iyer had not surrendered the leasehold interests in the suit property as claimed by the plaintiff and that he was in possession of the suit property until his death. It was also contended by the second defendant that he has acquired the interests of late T.V.S.Iyer in the suit property by virtue of Ext.B1 assignment deed and he is in possession of the suit property on that basis. The plea of the plaintiff that late T.V.S.Iyer had surrendered the leasehold interests in the property has been specifically denied by the second defendant in the written statement filed by him. The second defendant also contended that he being a lessee in possession of the suit property, he is entitled to fixity of tenure also under the Kerala Land Reforms Act.

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While the suit was pending, the second defendant filed I.A.No.3271 of 1975 invoking Section 125 (3) of the Kerala Land Reforms Act seeking an order referring the claim of fixity of tenure raised by him for adjudication by the Land Tribunal. That application was though dismissed by the trial court, this Court in C.R.P No.2388 of 1975 set aside the said order and directed the trial court to refer the said claim of the second defendant for adjudication by the Land Tribunal. Thereupon, the Land Tribunal registered a case as O.A.No.525 of 1973 and found on the basis of the evidence adduced before it that the second defendant is entitled to fixity of tenure. The trial court accepted the said decision of the Land Tribunal and dismissed the suit. The plaintiff challenged the decision of the trial court in A.S.No.95 of 1977 before the Sub court, Palakkad. While the said appeal was pending, the plaintiff challenged the decision of the Land Tribunal

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also before the appellate authority constituted under the said Act. The appellate authority allowed the appeal preferred by the plaintiff and remitted the matter for fresh consideration by the Land Tribunal. Even thereafter, the Land Tribunal held that the second defendant is entitled to fixity of tenure. Though the said decision of the Land Tribunal was also challenged by the plaintiff in an appeal before the appellate authority, the said appeal was dismissed. The decision of the appellate authority referred to above was challenged by the plaintiff before this Court in C.R.P.No.1562 of 1985. This Court considered the said civil revision petition along with A.S.No.95 of 1977, after withdrawing the same to this Court, and by a common judgment rendered in the said matters, remanded the suit as also O.A.No.525 of 1973 for fresh consideration, directing that the trial court shall first consider the issue whether the plea of surrender of the leasehold interests

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set up by the plaintiff is true and that if the said issue is decided in favour the plaintiff, there is no necessity for the Land Tribunal to decide O.A.No.525 of 1973. It was however clarified by this Court that in case it is found that the plea of surrender of the lease set up by the plaintiff is not true, the Land Tribunal can proceed to decide O.A.No.525 of 1973.

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Pursuant to the decision of this Court in C.R.P.No.1562 of 1985 and A.S.No.95 of 1977, which was renumbered as A.S.No.319 of 1986, the trial court framed an additional issue as to whether there was a valid surrender of the lease as alleged by the plaintiff. When the case came up for trial thereafter, the parties have agreed that the additional issue can be decided based on the oral evidence tendered by the parties before the Land Tribunal in O.A.No.525 of 1973 and the documents produced by them in the suit. Consequently, the documents produced

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by the plaintiff in the suit were marked as Exts.A1 to A14 and the documents produced by the defendants in the suit were marked as Exts.B1 to B22. Thereupon, on a consideration of the materials on record, the trial court found that the plea of surrender set up by the plaintiff is not true. Consequently, the suit was dismissed. The plaintiff took up the matter in appeal. The appellate court, however, reversed the decision of the trial court and decreed the suit. The legal representatives of the second defendant are thus aggrieved by the decision of the appellate court and hence this second appeal.

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Heard the learned counsel for the appellant

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as also the learned counsel for the first respondent, the plaintiff.

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In the light of the decision of this Court in C.R.P.No.1562 of 1985 and A.S.No.319 of 1986, the only issue arose for consideration before the trial court was

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whether there has been a valid surrender of the leasehold interests by T.V.S.Iyer, as claimed by the plaintiff. The trial court found that the materials on record do not establish that there has been a valid surrender of the leasehold interest by T.V.S.Iyer, but, the appellate court reversed the said decision and held that the leasehold interests of T.V.S.Iyer in the suit property has been validly surrendered. Exts.A4 and A5 are the registered lease deeds in favour of T.V.S.Iyer. Both the lessor and lessee are parties to the said lease deeds. Ext.A4 recites that the original of the lease deed is given to the lessee along with other documents. The suit property was the subject matter of an earlier lease in favour of one Narayana Iyer. The leasehold interest created in favour of Narayana Iyer was surrendered before the execution of Exts.A4 and A5 lease deeds by a registered instrument. Ext.A4 also recites that the original of the said surrender deed is also entrusted to

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the lessee by the lessor. The originals of Exts.A4 and A5 are produced by the plaintiff in the suit in support of his case that when the leasehold interests were surrendered, the lease deeds were also returned by the lessee to the lessor, after making endorsements on the rear side of the documents that the leasehold interests have been surrendered. Exts.A4(a) and A5(a) are the said endorsements. The plaintiff has proved Exts.A4(a) and A5 (a) endorsements by examining PW2, who was a witness to the execution of the said endorsements. Ext.A13 is the receipt issued by T.V.S.Iyer to the father of the plaintiff simultaneous to the execution of Exts.A4(a) and A5(a) endorsements evidencing receipt of the refund of the advance amount paid at the time of execution of the lease deeds, less the arrears of rent due. Though the second defendant contended that the leasehold interests in the property have not been surrendered by T.V.S.Iyer, no

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document whatsoever was produced by the defendants to show that rent has ever been paid after Exts.A4(a) and A5 (a) endorsements. It has come out in evidence that T.V.S.Iyer died in the year 1956. Ext.A2 is a letter addressed by the brother of the first defendant to the plaintiff after about 11 years of the death of T.V.S.Iyer. Ext.A2 letter proceeds as if T.V.S.Iyer has purchased the suit property from C.S.Ananthanarayana Iyer. As per Ext.A2, the brother of the first defendant had ascertained from the plaintiff the tax dues in respect of the suit property. Ext.A2 indicates that neither the first defendant nor her brother knew anything about the nature of the right acquired by T.V.S.Iyer over the suit property. Ext.A2 letter dated 17.10.1967 was promptly replied by the plaintiff on 25.10.1967 itself stating that T.V.S.Iyer was not holding any interest in the suit property at the time of his death. Ext.A3 is the reply sent by the plaintiff to Ext.A2

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letter. In Ext.A3, the plaintiff has also stated that the lease in favour of T.V.S.Iyer was determined and on determination of the lease, the property leased was taken possession by his father C.S.Ananthanarayana Iyer and after his death, the plaintiff is in possession of the property. The first defendant on whose behalf Ext.A2 was sent has not done anything in relation to the suit property for about six years thereafter till 1973 when she along with her son had executed Ext.B1 assignment deed in favour of the second defendant. Further, though Exts.A4 and A5 lease deeds recite that the lease in respect of the suit property has been obtained by T.V.S.Iyer for the purpose of constructing a residential building, it is not disputed by the parties that T.V.S.Iyer had not put up any building in the property. It is in the aforesaid facts and circumstances, the appellate court came to the conclusion that the materials on record are sufficient to hold that

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there has been a valid surrender of the leasehold interests by T.V.S.Iyer.

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The learned counsel for the appellant relied on the following circumstances to contend that Exts.A4(a) and A5(a) endorsements are not genuine:

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(i) No reliable witness was examined to prove Exts.A4(a) and A5(a) endorsements. PW2 who was examined to prove the said endorsements is none other than the brother-in-law of the plaintiff.

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(ii) In Ext.B4 document executed by the plaintiff on 10.12.1964 in respect of the property situated on the

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south of the plaint schedule property, the property on the north of the property dealt with therein is shown as the vacant site of T.V.S.Iyer. If T.V.S.Iyer had surrendered the leasehold interest as claimed by the plaintiff, the plaintiff would not have shown in Ext.B4 the property on the north of the property dealt with therein as the vacant site of

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T.V.S.Iyer.

(iii) Ext.B4 refers to a Will executed by C.S.Ananthanarayana Iyer dated 30/6/1961. If the plea of surrender set up by the plaintiff was genuine, the suit property would have been included in the said Will. The plaintiff has not produced the Will of C.S.Ananthanarayana Iyer in the suit.

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(iv) Kalpathi Vishwanatha Swami devaswom filed O.S.No.360 of 1953 for recovery of possession of the suit property along with other properties leased out to C.S.Ananthanarayana Iyer, in which T.V.S.Iyer was also a party. In Ext.B9 written statement filed by T.V.S.Iyer in the said suit, he claimed fixity of tenure in respect of the suit property. After the death of T.V.S.Iyer, first defendant filed an additional written statement adopting the contentions taken by T.V.S.Iyer. If the plea of surrender set up by the plaintiff is genuine, the first defendant who

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came to the scene after the death of T.V.S.Iyer would not have claimed fixity of tenure in respect of the suit property in O.S.No.360 of 1953.

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(v) In the evidence tendered by the plaintiff before the Land Tribunal, he has admitted that lease deeds executed by lessees are kept by the lessors as per the practice prevalent. As such, no inference is possible from the production of the lease deeds by the plaintiff in the suit.

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(vi) There was a prior lease in respect of the suit property in favour of one Narayana Iyer and Exts.B4 and B5 leases were created after surrender of the lease in favour of Narayana Iyer. Narayana Iyer surrendered the lease in his favour by a registered instrument. As such, the surrender of the lease by T.V.S.Iyer otherwise than by registered instrument is not probable. Alternatively, the learned counsel for the appellant

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contended that a valid surrender of the lease could be made only by a registered instrument as provided for under Section 17(1)(b) of the Registration Act. The learned counsel for the appellant also pointed out that even if it is found that Section 17(1)(b) of the Registration Act has no application to the facts of the present case, Section 42 of the Malabar Tenancy Act required at the relevant time that a surrender of the lease shall be made only by a registered instrument. As such, according to the learned counsel, Exts.A4(a) and A5(a) endorsements cannot, at any rate, be accepted as proof of surrender of Exts.A4 and A5 leases.

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The question whether Ext.A4(a) and Ext.A5 (a) endorsements are genuine is a pure question of fact. It is trite that if only this Court finds that a finding rendered by the courts below on a question of fact is perverse, the same can be interfered with in a Second Appeal filed

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under section 100 of the Code of Civil Procedure. At the same time, the contention of the appellant that a valid surrender of a lease could be made only by a registered instrument requires examination. As such, the following questions are formulated for decision in the second appeal:

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(i) Whether the finding of the appellate court that Ext.A4(a) and Ext.A5(a) endorsements are genuine perverse?

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(ii) Whether the appellate court was justified in accepting Ext.A4(a) and Ext.A5(a) endorsements as proof of valid surrender of Exts.A4 and A5 leases?

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Question (i):The fact that T.V.S. Iyer was holding leasehold interests in the property is not in dispute. The case of the plaintiff is that his father C.S.Ananthanarayana Iyer got surrender of the leasehold interests of T.V.S. Iyer by settling his dues. The plaintiff

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relies on Ext.A4(a) and A5(a) endorsements to prove the surrender of the leasehold interests by T.V.S.Iyer in favour of his father. It is the case of the plaintiff that for the purpose of obtaining the surrender of the leasehold interests, his father went to Mumbai and got the aforesaid endorsements on the rear side of the lease deeds in the presence of PW2. The defendants have no case that PW2 was not residing at Mumbai at the relevant time. As such, I do not find any abnormality in PW2 witnessing the execution of Ext.A4(a) and A5(a) endorsements, especially when the same have been obtained in favour of the lessee. Merely for the reason that PW2 was the son-in-law of the lessee, it cannot be said that he is unable to prove the execution of the said endorsements.

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It is seen that in Ext.B4 document executed

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by the plaintiff on 10.12.1964 in respect of the property situated on the south of the plaint schedule property, the

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the property on the north of the property dealt with therein is shown as the vacant site of T.V.S.Iyer. As rightly noticed by the appellate court, boundary descriptions shown in documents are normally the replica of the boundary descriptions shown in the previous documents. As such, without perusing the boundary descriptions of the property shown in the previous documents, it is not safe to make inferences based on boundary descriptions in Ext.B4.

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True, Ext.B4 refers to a Will executed by C.S.Ananthanarayana Iyer and the plaintiff has not produced the said Will in the present proceedings. But, in the absence of any presumption that the Will, if any, executed by a person will always be in respect of all his properties and in the absence of any initiative on the part of the defendants to cause the production of the said Will, it is not safe to make inferences based on the non-

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production of the Will also.

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As pointed out by learned counsel for the appellant in O.S.No.360 of 1953, when the first defendant was impleaded as an additional defendant on the death of T.V.S.Iyer, she filed an additional written statement adopting the contentions of T.V.S.Iyer. But, merely for the said reason, it cannot be said that the endorsements relied on by the plaintiff to prove the surrender of the lease are not genuine.

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Unlike lease deeds executed by lessees in favour of lessors, Exts.A4 and A5 are lease deeds executed by both lessor and the lessee. Among the said documents, Ext.A4 recites that the original of the same is given to the lessee along with other documents. The statement made by the plaintiff as PW1 before the Land Tribunal that normally lease executed by lessees are kept by the lessors is therefore of no consequence as far as the

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present case is concerned. Likewise, merely for the reason that the previous lease created in respect of suit property has been surrendered by a registered instrument, it cannot be said that Ext.A4(a) and A5(a) are not genuine if there is no requirement to register the documents evidencing surrender of lease.

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May be it is a case where a different view is possible on the materials on record as to the genuineness of Exts.A4(a) and A5(a) endorsements. But, merely for the reason that a different view is possible on the materials on record, a decision cannot be said to be perverse. The question (i) is thus answered against the appellant.

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Question No.(ii) : The contention of the appellant is that surrender of the leasehold interests in an immovable property could be made only by a registered instrument. Section 17(1)(b) of the Registration Act relied on by the appellant reads thus :

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“ 17. Documents of which registration is compulsory

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(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,-

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(a) x x x x x x x x x x x x x x x

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(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;”

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It is evident from the aforesaid provision that a nontestamentary instrument which purports to extinguish interests in an immovable property needs to be registered only if the value of interests extinguished by the said document is rupees one hundred and upwards. (See Varghese Paul v. Narayanan Nair 1999(2) KLT 571). Exts.A4 and A5 are lease deeds executed for a period of three years. The annual rent fixed in both the documents

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is Rs.12/-. The value of the leasehold interests extinguished as per Exts.A4(a) and A5(a) endorsements, in the circumstances, cannot exceed Rs.100/-. As such, there is no merit in the argument advanced by the learned counsel for the appellant on the basis of Section 17(1)(b) of the Registration Act.

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Section 42 of the Malabar Tenancy Act

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relied on by the appellant reads thus :

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“ A kanamdar, kanam-kuzhikanamdar, kuzhikanamdar, customary verumpattamdar or cultivating verumpattamdar may, at the end of any agricultural year, surrender his holding to his immediate landlord, by a registered document.

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Such a landlord shall not be bound to accept the surrender unless notice has been given in writing to him by the tenant of his intention to do so three months prior to the date of the expiry of the agricultural year, and unless it be in respect of the entire holding. Nor shall the landlord be bound to refund the kanartham or to pay the value of the improvements which he would have been otherwise bound to pay under the Improvements Act. The tenant shall, after the surrender, remain personally liable for the arrears of rent, if any, payable by him in respect of the holding but he shall be entitled to set off against such arrears the kanartham and the value of the

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improvements, if any, made by him in the holding.”

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It is conceded that Malabar Tenancy Act was in force at

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the relevant time. Malabar Tenancy Act was not an exhaustive legislation of all laws relating to landlord and tenant in the erstwhile district of Malabar in the State of Madras. A conspectus of the provisions of the Act indicates that the Act dealt with only (1) cultivating verumpattoms, (2) customary verumpattoms, (3) kanoms, (4) kanom-kuzhikanoms, (5)kuzhikanoms, (6)

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kudiyiruppus, (7) protected ulkudis, (8) kudikidappus, (9) certain leases of commercial sites, and (10) certain mortgages which can be construed as leases. Any other kind of tenancy or relationship between a landlord and tenant was outside the purview of the said Act. The said Act specifically excluded (1) lands transferred for felling trees or for planting tea, coffee, rubber, cinchona or any other special crop notified by the Government as such, or

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lands transferred for the erection of any building needed for the cultivation of such crop or for its preparation for the market or land let only for fugitive cultivation, (2) any transaction relating to the usufruct of trees only and (3) any building owned by a landlord including a house, shop or warehouse and the site thereof, with the garden or land appurtenant thereto, excepting a hut belonging to the landlord in any ulkudi or kudikidappu. Even the exclusions by specification does not mean that the tenancies or transfers other than those specifically excluded are included in the Act. It is seen that Exts.A4 and A5 are styled as 'pattachit'. According to the learned counsel for the appellant, Exts.A4 and A5 transactions would come within the scope of 'kanam' as defined under the said Act. Though a sweeping definition is given in the said Act for 'kanam', it is clear from the scheme of the Act as indicated above as also from its object that what was

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intended to be included within the definition of 'kanam' are only lands transferred for consideration for agricultural operations. The said fact is evident from Section 42 of the Act which confers a discretion on the kanamdar to surrender his holding to the landlord at the end of any agricultural year. The said fact is further evident from Section 2(3) of the Act which specifically excludes house building and the site thereof together with garden or land appurtenant thereto. If the house building and the site thereof together with the garden or land appurtenant thereto is excluded from the purview of the Act, there is no reason to think that the lease for construction of a house building and a garden as in the instant case would come within the purview of the Act. As such, there is no merit in the argument advanced by the learned counsel for the appellant on the basis of Section 42 of the Malabar Tenancy Act also. Question (ii) is also thus answered

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against the appellant.

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In the result, there is no merit in the second appeal and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

B.v.Krishnan v. C.a.Subbaraman

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B.v.Krishnan v. C.a.Subbaraman

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