Case Note & Summary
The dispute arose from a partition suit concerning land assigned under an assignment deed dated 5.6.1897 by one Nambra Kurup in favour of Rayiru Kurup, Madhavi Amma, and Chiruthayi Amma, who were brother and sisters. Rayiru Kurup executed a registered kuzhikanam (lease) deed dated 25.5.1946 in favour of his son, the appellant, stipulating a rent of Rs. 5 and 50 coconut leaves as purappadu, but without joining his sisters as parties to the deed. The legal heirs of Chiruthayi, respondents 4 to 31, filed Suit No. 642/58 on 26.5.1958 for partition of their one-third share in the suit land with mesne profits, ignoring the lease. The preliminary decree passed on 14.11.1960 expressly rejected the appellant's claim of tenancy rights; his appeal was dismissed on 2.12.1963. A final decree came to be passed on 16.12.1967, against which the appellant preferred A.S. 335/67 before the subordinate court. While that appeal was pending, the Kerala Land Reforms (Amendment) Act, 1969 came into force with effect from 1.1.1970. The appellant sought and obtained leave to file an additional ground based on Sections 7 and 78 of the Kerala Act 1 of 1964 as amended by Act 35 of 1969. However, by judgment dated 22.10.1971, the first appellate court dismissed the appeal on the ground that the lease deed executed by Rayiru Kurup was collusive and purposely created to defeat the right of the plaintiffs and defendants 3 to 17 in the suit, and therefore could not be pressed into service to claim fixity of tenure under Section 7 or 7B. The appellant then preferred Second Appeal No. 1074/71 before the High Court of Kerala. The High Court remanded the matter to the trial court to determine factually whether the appellant, who was the first defendant in the suit, was in possession on 1.1.1970 of the land over which he claimed tenancy rights. After remand, the trial court by judgment dated 17.11.1977 upheld the appellant's claim under Section 7B in respect of plots A, B and C in Ext. C-4 Plan filed in the suit, thereby granting fixity of tenure to the appellant for those plots. The plaintiffs preferred a revision to the Kerala High Court against that order, and the High Court by order dated 28.5.1982 upset the trial court's order and rejected the appellant's claim under Section 7B for plots A, B and C. The appellant then approached the Supreme Court. The Supreme Court examined the judgments of the trial court and the High Court and heard counsel for the parties. It found that Rayiru Kurup, knowing that there were two other co-assignees, deliberately and cunningly executed the lease in 1946 to deprive his sisters of their rights. The High Court, apart from noticing the findings rendered in the suit both by the trial court and the appellate court before remand to the effect that the lease was a collusive document and not valid and binding, independently came to the same conclusion. The Court observed that but for the amendment in 1970, the appellant would not have obtained the right of fixity of tenure. It was also not in dispute that a portion of the plaint schedule land was taken possession of by the heirs of another co-assignee, Madhavi Amma. In all these circumstances, the Supreme Court held that it was not inclined to exercise its jurisdiction under Article 136 of the Constitution to interfere with the order of the High Court which had done substantial justice to the parties. Accordingly, the Supreme Court dismissed the appeal with no order as to costs.
Headnote
A) Property Law - Tenancy and Fixity of Tenure - Collusive Lease by Co-owner - Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), as amended by Kerala Land Reforms (Amendment) Act, 1969, Sections 7, 7B, 78 - The appellant, son of one co-assignee, claimed fixity of tenure under Section 7B based on a kuzhikanam deed dated 25.5.1946 executed by his father Rayiru Kurup without joining the other two co-assignees. The courts found the deed collusive and created to defeat the rights of the co-assignees, and therefore not binding. Held that a collusive lease cannot confer fixity of tenure; the High Court's rejection of the claim was upheld (Paras 1-2). B) Constitutional Law - Article 136 - Exercise of Discretionary Jurisdiction - Constitution of India, Article 136 - The Supreme Court considered whether to interfere with a High Court order that had reversed a trial court's grant of tenancy rights under Section 7B. The Court held that since the lease was collusive and the High Court had done substantial justice, no interference under Article 136 was warranted (Paras 1-2).
Issue of Consideration
Whether the appellant was entitled to fixity of tenure under Section 7B of Kerala Land Reforms Act, 1963 based on a kuzhikanam deed dated 25.5.1946 executed by only one of three co-assignees without the concurrence of the other co-assignees, especially where the deed was found to be collusive. Whether the Supreme Court should exercise its discretionary jurisdiction under Article 136 of the Constitution to interfere with the High Court's order which had done substantial justice.
Final Decision
The Supreme Court dismissed the appeal and affirmed the Kerala High Court order dated 28.5.1982 rejecting the appellant's claim of fixity of tenure under Section 7B of the Kerala Land Reforms Act. No order as to costs.
Law Points
- A collusive lease deed executed by one co-owner without the consent of other co-owners is not valid and binding
- and cannot confer fixity of tenure under Section 7B of the Kerala Land Reforms Act
- 1963
- as amended by Kerala Land Reforms (Amendment) Act
- 1969. The Supreme Court may decline to exercise jurisdiction under Article 136 where the High Court has done substantial justice. A claim of tenancy rights under a collusive document cannot be sustained merely because a subsequent amendment came into force.
