IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 OP(C).No. 181 of 2011(O) OS.568/2009 OF ADDL.MUNSIFF'S COURT, PALAKKAD PETITIONER M.C.THOMAS, MOOZHIKKAL HOUSE, PAZHAVANGADI, RANNI, PATHANAMTHITTA. BY ADV. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENTS: 1. SREE EMOOR BHAGAVATHY DEVASWOM, REP. BY ITS EXECUTIVE OFFICER, KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD, PIN-678 009. 2. JACOB ZACHARIAH, KIDANGANETHU, PAZHAVANGADI, RANNI, PATHANAMTHITTA-689 672. 3. ANNAMMA JACOB, KIDANGANETHU, PAZHAVANGADI, RANNI, PATHANAMTHITTA-689 672. 4. MARIAMMA CHERIAN, MOOZHIKKAL HOUSE, PAZHAVANGADI, RANNI, PATHANAMTHITTA-689 672. 5. RIJO M.CHERIAN, MOOZHIKKAL HOUSE, PAZHAVANGADI, RANNI, PATHANAMTHITTA-689 672. 6. RINKU CHERIAN, MOOZHIKKAL HOUSE, PAZHAVANGADI, RANNI, PATHANAMTHITTA-689 672. 7. PRADEEP ALEXANDER, VAZHAPPALLIL, VALANJAVATTOM, THIRUVALLA-689 104. 8. PRAMOD ALEXANDER, VAZHAPPALLIL, VALANJAVATTOM, THIRUVALLA-689 104. 9. PRAKASH ALEXANDER, VAZHAPPALLIL, VALANJAVATTOM, THIRUVALLA-689 104. 10. MOHAN THOMAS, KOCHUKALATHOOR, MARAMAN, THIRUVALLA-689 549. 11. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. GOVERNMENT PLEADER SRI.T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LEASE DEED NO.1227/69 OF PALAKKAD SRO DATED 23.4.1969. EXT.P2 TRUE COPY OF THE JUDGMENT DATED 29.9.1981 IN MFA.NO.567 OF 1980. EXT.P3 TRUE COPY OF THE ORDER DATED 23.7.1993 IN R.P.NO.272 OF 1984 IN MFA.NO.567 OF 1980. EXT.P4 TRUE COPY OF G.O.(MS) NO.238 OF 2002 DATED 20.7.2002. EXT.P5 TRUE COPY OF THE JUDGMENT OF THIS COURT IN O.P.NO.3918 OF 2003, DATED 24.1.2008. EXT.P6 TRUE COPY OF THE PLAINT IN O.S.NO.568 OF 2009 BEFORE THE MUNSIFF'S (ADDITIONAL) COURT, PALAKKAD. EXT.P7 TRUE COPY OF THE NOTIFICATION NO.14912/G4/77/LAW DATED 12.7.1978. EXT.P8 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT IN O.S.NO.568 OF 2009 BEFORE THE MUNSIFF'S (ADDITIONAL) COURT, PALAKKAD. EXT.P9 TRUE COPY OF THE FINDING ON ISSUE NO.3 DATED 23.10.2010 IN O.S.NO.568 OF 2009 OF THE MUNSIFF (ADDITIONAL), PALAKKAD. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 181 OF 2011 O ------------------------------------------------------ Dated this the 18th day of January, 2011 JUDGMENT The question of law involved in this Original Petition is whether a lease hit by Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951 could be termed as an alienation so as to attract an application under SRO.No.718/78, which provides for a court fee of only `15/- for filing a suit for recovery of possession. 2. An extent of 327 acres of land belonging to Sree Emoor Bhagavathy Devaswom, Kallekulangara, Akathethara, Palakkad was taken on lease by the petitioner and seven others as per the registered lease deed dated 23.4.1969, executed between them and the trustee of the Devaswom. The lease deed authorizes cutting of trees for the purpose of planting the property with rubber. A lease rent of `5/- per acre was fixed for a period of six years from the commencement of the lease. Thereafter, an increased rent of `7.50 per acre was fixed. The lease was for a period of 36 years commencing from the date of lease. O.P.(C) NO.181 OF 2011 :: 2 :: 3. The Department of Forests claimed that the property is a private forest which vested in the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971. The lessees filed applications before the Forest Tribunal claiming exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The Forest Tribunal allowed the applications. The State and the Conservator of Forests filed M.F.A.No.567 of 1980 challenging the order passed by the Forest Tribunal. The High Court dismissed the appeal filed by the State and the Conservator of Forests. Though R.P.No.272 of 1984 was filed by the appellants therein, that was also dismissed on 23.7.1993. 4. The Government, in exercise of the powers under Section 99 of the Madras Hindu Religious and Charitable Endowments Act, 1951, issued G.O.(MS) No.238/2002 dated 20.7.2002 to cancel the lease on the ground that the lease was created contrary to Section 29 of the Act. The Government granted an opportunity of being heard to the lessees. Thereafter, a Government Order was issued, by which, the lease was cancelled. The petitioner challenged the order cancelling the lease in O.P.No.3918 of 2003, which was dismissed by the Division Bench, as per the judgment dated O.P.(C) NO.181 OF 2011 :: 3 :: 24.1.2008, holding that, at any rate, the period of 36 years fixed in the lease deed had expired and, therefore, the lessees had no right to continue in possession. 5. Sree Emoor Bhagavathy Devaswom filed O.S.No.568 of 2009 on the file of the Court of the Munsiff of Palakkad for recovery of possession of the property covered by the lease. A court fee of `15/- was paid by the plaintiff, relying on SRO.718/78 issued by the Government. SRO.718/78 reads as follows: “SRO.No.718/78:-- .... In exercise of the powers conferred by Section 75 of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960), the Government of Kerala hereby reduce to a maximum of rupees fifteen the fee payable under the said Act in respect of suits to recover possession of immovable property belonging to the Hindu Religious Institutions coming under the purview of the Hindu Religious and Charitable Endowments (Administration) Department and which have been unauthorisedly alienated by the Trustees of the said institutions. (Notification No.14912/G4/77/Law dt. 12/07/1978, published in K.G.No.29 dt.18/07/1978.)” O.P.(C) NO.181 OF 2011 :: 4 :: 6. The petitioner, in his written statement, contended that the court fee paid is not correct and therefore, the plaintiff is not entitled to the relief claimed. The court below raised issue No.3 as to whether the court fee paid is correct and answered the said issue holding that the suit is properly valued for the purpose of court fee. The abovementioned notification issued by the Government fixing the court fee as `15/- was relied on by the court below. The finding on issue No.3 is under challenge in this Original Petition. 7. Learned counsel for the petitioner submitted that the order passed by the court below is illegal and unsustainable. The counsel contended that a lease is not an alienation and, therefore, the notification issued by the Government fixing the court fee at `15/- does not apply in the present case. He submitted that the well accepted meaning of the expression “alienate” does not include a lease. 8. “Lease” is defined in Section 105 of the Transfer of Property Act as follows: “ A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, O.P.(C) NO.181 OF 2011 :: 5 :: express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.” The expression “transfer of property” is defined in Section 5 of the Transfer of Property Act as “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.” The Transfer of Property Act does not define the expression “alienate” or “alienation”. The Black's Law Dictionary defines “alienate” and “alienation” thus: “Alienate: To convey; to transfer the title to property. Alienation: In real property law, the transfer of the property and possession of lands, tenements, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one O.P.(C) NO.181 OF 2011 :: 6 :: person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.” New Riverside University Dictionary defines “alienate” and “alienation” thus: “alienate: .... 4. Law. To transfer (property) to a new owner.” “alienation: ...... 3. Law. The act of transferring property or title to it to another.” Stroud's Judicial Dictionary defines “alienation”, providing twelve items therein. Item (1) says thus: “(1) “'Alienation' is as much to say, as to make a thing another mans; or to alter or put the possession of lands, or other things, from one man to another” (Termes de la Ley). Therefore, a disentailing deed “is not an alienation; it operates rather by way of enlargement of the estate tail” (Re Gaskell and Walters [1906] 2 Ch. 10, citing Lilford v. A.G., L.R. 2 H.L.63, cited COMPETENT). It is the making over of land or an interest therein (Lang v. Castle [1924] S.A.S.R.255); but O.P.(C) NO.181 OF 2011 :: 7 :: not the making over of a mere personal right, not in the nature of property (Re Symon, Public Trustee v. Symon [1944] S.A.S.R. 102).” 9. Learned counsel for the petitioner relied on the decision in Pitamber Govinda Bhavsar v. Abdul Gafur Abdul Rajak and others (AIR 1972 BOMBAY 43) to support his contention that a lease does not constitute an alienation. The Bombay High Court in the aforesaid decision referred to the dictionary meaning of the word “alienation” and held thus: “11. The Concise Oxford Dictionary, 1961 Edition, states that in law the meaning of the word “alien” is “transfer of ownership of.” The meaning of the word “alienate” is given as “transfer ownership of”. The meaning of the word “alienation” is given as “transference of ownership.” It would therefore appear that the ordinary literary meaning of the word “alienation” implies transfer of ownership, and not merely a transfer of a right of enjoyment. 12. Law Lexicon published by the Madras Law Journal Office states that the word “alienation” is generally applied to absolute conveyances of immovable property. To use the word “alienation” is as much to say O.P.(C) NO.181 OF 2011 :: 8 :: as to make a thing another man's or to alter or put the possession of lands or other things from one man to another. “Alienation” imports an actual transfer of title.” 10. With respect, I am not inclined to accept the view taken in AIR 1972 Bombay 43. “Transfer of Property” under Section 5 of the Transfer of Property Act is an act of conveyance of property. A lease of immovable property is also a transfer, as provided in Section 105 of the Transfer of Property Act. In a lease also, there is conveyance of right or title. The right of the lessee to possess and enjoy the leasehold property is implicit in a lease. The title of the lessee is possessory title as well. A lessee has rights and liabilities as provided in the Transfer of Property Act. A lessee can be evicted from the property only in accordance with law. A lessee's right becomes absolute title under the provisions of Land Reforms legislations. Even commercial leases are protected under Land Reforms legislations and/or Rent Control legislations. Ownership in respect of property consists of a bundle of rights. The various rights and interests in the property need not necessarily belong to the same person. They may belong to more than one person. For example, mortgagor and mortgagee, lessor and lessee, life estate O.P.(C) NO.181 OF 2011 :: 9 :: holder and remainderman. The subordinate or subsidiary rights constitute interests in property. A transfer of absolute ownership or a transfer of subordinate or subsidiary rights would be a transfer of property. Such transfer would constitute “alinenation”. 11. The expression “alienate” is dealt with in the Law Lexicon by P.Ramanatha Aiyar, which reads as follows: “Alienate is to transfer property from one person to another. The word “alienate” in C.P.C. Sch.III, para 11 is used ejusdem generis with the words preceding it, namely, mortgage, charge and lease, and manifestly contemplates a transfer which would have a present effect and not a devise which can only have operation after the death of the testator. (Muhammad Sayeed v. Muhammad Ismail) 33 All. 233 = 7 A.L.J.1176 = 8 I.C. 834). The word “alienate” would include a device by will. Narain v. Krishnaji : 32 Bom.L.R.1249 = AIR 1930 Bom. 534.” 12. A leasehold right can also be subject matter of a transfer. Section 10 of the Transfer of Property Act reads as follows: “10. Condition restraining alienation:-- Where property is transferred subject to a condition or limitation O.P.(C) NO.181 OF 2011 :: 10 :: absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.” The heading of Section 10 is “condition restraining alienation”. However, in the body of the Section, the word “alienation” does not occur. “Parting with or disposing of” a person's interest in the property is “alienation”. Creation of a lease by a person having absolute title is a transfer. Transfer of his rights by such lessee is also a transfer. In both cases, there is alienation -- alienation of the rights of the transferor. 13. I am of the view that in the present case, it is not absolutely essential to search for the meaning of “alienation” or “alienate” in the dictionaries or in any decision with reference to the interpretation of other Acts. The relevant portion of Section 29(1) of O.P.(C) NO.181 OF 2011 :: 11 :: the Madras Hindu Religious and Charitable Endowments Act, 1951 provides thus: “29. Alienation of immovable trust property -- (1) Any exchange, sale or mortgage and any lease of any immovable property belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution:” Section 29 of the Act contains the heading “alienation of immovable trust property”. In sub-section (1) of Section 29, it is provided that any exchange, sale or mortgage and any lease of any immovable property shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Therefore, it is abundantly clear that a transaction of lease is also treated by the legislature, for the purpose of the application of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, as alienation. It is in that context SRO.No.718/78 should be interpreted, where the expression “unauthorisedly alienated” occurs. The Government issued the notification fixing only `15/- as the court fee payable in respect of suits for recovery of O.P.(C) NO.181 OF 2011 :: 12 :: possession of immovable properties belonging to Hindu Religious Institutions, which were unauthorisedly alienated. No meaning other than the meaning assigned in Section 29 of the Hindu Religious and Charitable Endowments Act for the expression “alienation” could be given, though the word “alienation” is not defined in the Hindu Religious and Charitable Endowments Act. Section 29 makes the position clear that the legislature consciously included lease also within the purview of alienation. The order passed by the court below holding that the court fee payable is only `15/- is right and it is well supported by the SRO issued by the Government and the provisions of law mentioned above. No interference is called for. The Original Petition is accordingly dismissed. It is made clear that the findings and observations made above are only for the purpose of finding whether the court fee paid is correct or not and they shall not be treated as findings with respect to the merits of the case. (K.T.SANKARAN) Judge ahz/