IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 AS.No. 550 of 1997(E) --------------------- AGAINST THE ORDER DATED 10/04/1997 IN IA 403/81 IN OS.45/1979 of SUB COURT, KASARAGOD .................... PLAINTIFF(APPLICANT)/ APPELLANT: ---------------------------------------- NARAYANA BHAT, S/O.VENKATARAMA BHAT, KOLIKAJE KARADKA P.O., KASARAGODE TALUK. BY ADV. MR.K.I.MAYANKUTTY MATHER MS.JIJIMOL J.VADAKKEN RESPONDENTS/DEFENDANTS: ---------------------------------- *1. GOWRI, W/O.LATE KUNHAPPA NAIK, (DELETED) SAKILAL, PADRE P.O., KASARAGODE TALUK. 2. SUBHA NAIKA, SAKILAL PADRE P.O., KASARAGODE TALUK. 3. JANAKI, PARVATHAGUDDE, MAIRE VILLAGE, KASARAGODE. 4. KAVERI, MAILAKOCHI, KUMBRA P.O., PUTHUR TALUK. 5. KAMALA, BAREGURI, MAIRE P.O., KASARAGODE TALUK. 6. HONNAMMA, W/O.APPANNA NAIKA, BARUJURI HOUSE, MAIRE P.O., KASARAGODE TALUK. 7. SARASWATHI, C/O.BEAMA NAIKA, BAREGURIMANE, MAIRE P.O., KASARAGODE TALUK. 8. SARADA, C/O.BEAMA NAIKA, BAREGURIMANE, MAIRE P.O., KASARAGODE TALUK. * THE NAME OF THE 1ST DEFENDANT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD.13.12.2004 IN C.M.P.NO.4416/97. ADV. MR.D.KRISHNA PRASAD R2 MR.M.HARISHARMA FOR R2 MR.BIPIN VIJAYAN FOR R6 & R7 MS.K.P.RANJINI FOR R8 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/03/2010, ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 550 of 1997(E) ORDER ON C.M.P.NO.4415/1997 IN A.S.NO.550 OF 1997 DISMISSED. 4.3.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.550 of 1997 - E and Cross Objection --------------------------------- Dated this the 4th day of March, 2010 J U D G M E N T The plaintiff in O.S.No.45 of 1979 on the file of the Sub Court, Kasaragod is the appellant. Suit is filed for partition. The trial court passed a decree for partition declaring that the plaintiff is entitled to 2/7th share. The plaintiff filed I.A.No.403 of 1981 for passing final decree. The said petition was dismissed. Aggrieved by the order passed by the learned Sub Judge dismissing the final decree application, the plaintiff has preferred the appeal. The parties are hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. Defendants in the suit are the legal heirs of Kunhappa Naik. Kunhappa Naik was the cultivating tenant of plaint A schedule property having an extent of 8.81 acres. Suo motu proceedings have been initiated by the Land Tribunal for assignment of landlord’s right in favour of Kunhappa Naik. During the pendency of the suo motu proceedings, Kunhappa Naik died, thereupon the legal heirs of the deceased cultivating A.S.No.550 of 1997 - E 2 tenant were impleaded as additional applicants. Kunhappa Naik left behind his wife and six children. One of the legal heirs by name Santhappa Naik also died during the pendency of the S.M proceedings and his legal heirs namely, widow and daughter, were impleaded in the S.M proceedings. While so, on 22.11.1975 two of the legal heirs of Kunhappa Naik by name Honnamma and Shanthappa Naik assigned their 2/7th share to the plaintiff. After assignment in his favour, the assignee Narayana Bhat got himself impleaded in the S.M proceedings. The Land Tribunal issued the purchase certificate in the joint names of Narayana Bhat and other legal heirs of Kunhappa Naik. 3. Suit was filed by Narayana Bhat for partition by metes and bounds and separate possession of 2/7th share which he obtained under the assignment deed dated 22.11.1975. The court below passed the preliminary decree for partition declaring the plaintiff’s 2/7th share. Preliminary decree was passed on 26.11.1980. I.A.No.403 of 1981 was filed by Narayana Bhat for passing final decree. In the final decree proceedings the legal heirs of Kunhappa Naik raised an objection stating that the A.S.No.550 of 1997 - E 3 assignment in favour of the plaintiff is hit by Section 5 of the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975, hereinafter referred to as the 1975 Act. Section 5 of the 1975 Act declares certain transfers to be invalid. Section 5 declares that any transfer of immovable property possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of the Scheduled Tribe, effected on or after the 1st day of January, 1960 and before commencement of this Act shall be deemed to be invalid. This Act was brought into force on 1.1.1982 as per notification G.O.(MS).No.51/86/RD dated 20.1.1986 published as S.R.O No.130/1986. Going by Section 5 of the Act all transfers effected between the period stated in Section 5 are deemed to be invalid. On the basis of Section 5 of the said Act the defendants in the suit contended that the assignment taken by Narayana Bhat is deemed to be invalid and therefore the final decree application is liable to be dismissed. 4. In the year 1999, the Kerala Restriction on Transfer By and Restoration of Lands to Scheduled Tribes Act, hereinafter A.S.No.550 of 1997 - E 4 referred to as the 1999 Act, was introduced. As per Section 1(3) of the 1999 Act, the Act shall be deemed to have come into force on 24.1.1986. In the statement by object and reasons the necessity for repealing the 1975 Act and for enacting the 1999 Act is stated. Section 5 of the 1975 Act was substituted in the 1999 Act. A proviso was inserted to Section 5. The proviso reads thus: “Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the aforesaid period and the extent of which does not exceed two hectares.” Besides the proviso subsection (2) was also inserted. Section 5 (2) reads thus: “5. Certain transfers to be invalid: (1) x x x x x (2) Notwithstanding anything contained in sub-section (1) of in any judgment, decree or order of any Court or other authority, in cases where the land involved in such transfer is used for agricultural purposes, the transferee thereof shall be entitled to A.S.No.550 of 1997 - E 5 retain in his possession the said land up to an extent of two hectares which shall be demarcated by the Revenue Divisional Officer by order and in the manner as may be prescribed.” 5. The plaintiff got assignment of 2/7th share of plaint schedule property. The total extent covered by the S.M proceedings of the decree schedule property is 8.81 acres. The plaintiff got assignment of 2/7th share of the property. The extent is far less than two hectares. So the proviso to Section 5 (1) squarely applies to this case. The constitutional validity of 1999 Act was upheld by the Apex Court in State of Kerala and another v. Peoples Union for Civil Liberties (ILR 2009 (4) Kerala 387). The constitutional validity of the 1999 Act, specially the proviso to Sections 5(1), 5(2), 6 and 22 were challenged in writ petitions. The Apex Court held that the 1999 Act is more beneficial to the members of the Scheduled Tribe than the 1975 Act. It was held that in the circumstance the 1999 Act by no stretch of imagination can be treated as arbitrary and unreasonable one. The Apex Court thus held that the provisions of the 1999 Act are intra vires. A.S.No.550 of 1997 - E 6 6. Before the court below the defendants contended that the preliminary decree passed in the case is a nullity relying on Section 5 of the 1975 Act. The final decree court observed that by the time preliminary decree passed, 1975 Act was not brought into force. Therefore, the defendants had no opportunity to contend that the assignment in favour of the plaintiff was bad in law at the stage of passing of preliminary decree. Applying Section 5 of Act, 1975, the court below held that the final decree application is not maintainable. 7. At the time when the impugned order was passed, 1999 Act was not contemplated and the said Act was enacted subsequently during the pendency of this appeal. 1975 Act was repealed by the 1999 Act. Learned counsel for the appellant submitted that the proviso to Section 5(1) of the 1975 Act is squarely applicable in this case. Since the extent of land covered by the assignment is far less than 2 hectares of land, as I said earlier, proviso to Section 5(1) of the 1999 Act validate any transfer of land possessed, enjoyed or owned by a member of Scheduled Tribe to a person other than a member of Scheduled A.S.No.550 of 1997 - E 7 Tribe effected during the period mentioned in Section 5(1) and declared that the said transfer is valid, provided, the extent does not exceed 2 hectares. In the light of the 1999 enactment the matter requires reconsideration by the court below. In the result, the appeal and cross objection filed by respondents 6 to 8 in the appeal are disposed of. The case is remitted to the court below for fresh consideration in accordance with law. Since the suit is of the year 1979 the trial court shall expedite the matter and shall dispose of the final decree application within a period of 6 months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 25.3.2010. The order under challenge is set aside. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-