IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 CRP.No. 2031 of 1999(B) --------------------------------------- AA.235/1997 of APPELLATE AUTHORITY, KANNUR OA.310/1990 of LAND TRIBUNAL, TIRUR .................... REVN. PETITIONERS/APPELLANTS 1, 3 & 4 AND RESPONDENTS: 1. MUNDATHODE MOHAMMED KUTTY, S/O LATE MUHAMMED, RESHAS, NADAKKAVU, P.O. TANUR 676 302, MALAPPURAM DIST. (DIED). 2. MUNDATHODE RUKKIYA, D/O LATE MUHAMMED, W/O PANAMPALATHINGAL ABDURAHIMAN, C/O KALLUDUMBIL HASSAN HAJEE, P.O.EDARIKKODE, KOTTAKKAL, MALAPPURAM DIST. 3. MUNDATHODE KUNHIMOIDEENKUTTY, S/O LATE MUHAMMED, SOUTH MALABAR GRAMIN BANK, ACCOUNT SECTION, HEAD OFFICE, P.B.NO.10, MALAPPURAM P.O. MALAPPURAM DIST. LRs OF 1 st REVISION PETITIONER IMPLEADED 4. ZAHIDA.K., S/O LATE MOHAMMED KUTTY.M.T., MUNDATHODE HOUSE, NADAKKAVU, TANUR P.O., MALAPPURAM DISTRICT. 5. MOHAMMED RISHAL.M.T., S/O LATE MOHAMMED KUTTY.M.T., DO. DO. Impleaded as per order dt. 27.7.2007 on IA 1758/2007 BY ADV. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ RESPONDENTS/RESPNTS/APPELLANTS 2, 5 & 6 AND PETITIONERS: 1. SUBAIR, S/O LATE MUNDAYAPPURATH ABOOBACKER, NEAR RAYIRIMANGALAM, G.M.L.P.SCHOOL, P.O.TANUR 676 302, MALAPPURAM DISTRICT. 2. BASHEER, DO. DO. 3. KADEEJA, D/O DO. DO. DO. 4. NOORJIHAN, DO. DO. 5. RUBY, S/O DO. DO. DO. 6. SAIDALIKUTTY, MINOR, REP. BY THITHUMMA, S/O DO. DO. DO. 7. BIYYUTTY, DO. DO. DO. 8. THITHUMMA, W/O LATE DO. DO. DO. 9. ORIKKARA GOPALAKRISHNA MENON, RETIRED VILLAGE OFFICER, SHYAM NIVAS, BYEPASS ROAD, P.O. TANUR 676 302, MALAPPURAM DISTRICT. 10. MUNDATHODE FATHIMA KUTTY, W/O LATE SAIDALAVI, MUNDATHODE HOUSE, NADAKKAVU, P.O. TANUR 676 302, MALAPPURAM DISTRICT. 11. MUNDATHODE MEENA, D/O LATE SAIDALAVI, W/O SHAREEF, C/O SALAMU HAJEE, CONTRACTOR, MADATHIL ROAD, P.O. TANUR DO. DO. 12. MUNDATHODE MIGDAD, S/O LATE SAIDALAVI, MUNDATHODE HOUSE, NADAKKAVU, P.O. TANUR 676 302, MALAPPURAM DISTRICT. 13. MUNDATHODE ARIFA, W/O K.LATHEEF, D/O LATE SAIDALAVI, DO. DO. 14. MUNDATHODE SALIMA, W/O NISSAR, D/O LATE SAIDALAVI, GLOBE, GIM, PO ERAMANGALAM, MALAPPURAM DISTRICT. 15. MUNDATHODE AYISHA BEEVI, D/O LATE MOHAMMED, W/O HAMZA KOYA.N., FLAT NO.14 - R.R.FLAT, SARAVANA STREET, T.NAGAR, CHENNAI-17. 16. MUNDATHODE SIDDIQUE, S/O LATE MOHAMMED, POST BOX NO.2345, DUBAI – U.A.E. 17. MUNDATHODE SUHARA, D/O LATE MOHAMMED, W/O M.T.MOHAMMED, GROUND FLOOR, CONSUMER CREDIT DEPARTMENT, BURGAN BANK, P.B.NO.5389, SAFAT, KUWAIT 13054. (DELETED) 18. STATE OF KERALA REP. BY CHIEF SECRETARY, GOVT. OF KERALA, TRIVANDRUM. R17 deleted as per order dt.29.3.2006 in CRP. BY GOVT. PLEADER SRI.JAISON P.MANGHUZHA FOR R18 ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.KRISHNAKUMAR MANGOT THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/01/2010 ALONG WITH CRP NO. 2045 OF 1999, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. ----------------------------- C.R.P.Nos.2031 & 2045 of 1999 ----------------------------- COMMON ORDER Based on the report submitted by Special Revenue Inspector, Tirur, S.M.Proceedings Nos. 309/1990 and 310/1990 were initiated by Special Tahsildar (LR) cum Land Tribunal, Tirur under Section 72C of Kerala Land Reforms Act (hereinafter referred to as 'the Act'). Revision petitioners herein, though not originally impleaded, filed an objection before the Land Tribunal contending that the property has originally been in the possession of their predecessor Mundathod Saidalavi and hence, all his legal heirs are to be impleaded. Consequently, they were impleaded. They filed a statement contending that respondents are assignees of kanaris under Document No.1762/1927 and the right created under the said document is only a commercial lease and not a lease or mortgage, entitled to fixity of tenure. Land Tribunal, as per CRP 2031&2045/99 2 order dated 30.3.1994, finding that nobody has a case that Exhibit P1, the Document No.1762 of 1927, is a lease, found that it is a mortgage and as the property is situated in Tirur, where Malabar Tenancy Act, 1929 was applicable and as the predecessor of the respondents has been in possession of the property from 1927, under Section 6B of the Act, they are entitled to purchase the jenm right and allowed the S.M. Proceedings in their favour. Petitioners challenged that order before the Appellate Authority (Land Reforms), Kannur in A.A.Nos.235/1997 and 236/1997. Appellate Authority, as per common order dated 11.6.1999, reiterated the findings of the Land Tribunal and dismissed the appeals. These revision petitions are filed challenging the said order. 2. Learned counsel appearing for the petitioners and learned senior counsel appearing for the respondents were heard. CRP 2031&2045/99 3 3. Learned counsel appearing for the petitioners argued that even though petitioners' case before the Land Tribunal was that Exhibit P1 creates only a commercial lease, the Land Tribunal, without granting any opportunity to adduce evidence, found that no evidence was adduced and wrongly found that no party has got a case that it is a lease. Learned counsel argued that on a reading of Exhibit P1, it is clear that the property was granted on lease for construction of a shop building and in any case, there is no direction to pay any michavaram or pattam and therefore, the finding of the Land Tribunal as well as the Appellate Authority that it is mortgage is unsustainable. It is also argued that as the Land Tribunal and the Appellate Authority found that it is a mortgage and Section 6B of the Act applies and therefore, respondents are entitled to purchase the jenm right, when Exhibit P1 shows that it is a commercial lease, the orders are to be set aside. CRP 2031&2045/99 4 4. Learned senior counsel appearing for the respondents argued that Exhibit P1 shows that it is a mortgage and though petitioners have a right to establish that the document, though purported to be a mortgage, in effect, is a lease as provided under Section 12 of the Act, no attempt was made before the courts below to pierce the veil and to prove that it is not a mortgage but a lease and if it is a mortgage, Section 6B of the Act squarely applies and the findings of the Land Tribunal and the Appellate Authority are perfectly correct and warrant no interference. 5. Unfortunately, neither the Land Tribunal nor the Appellate Authority properly consider Exhibit P1. It is the common case that predecessor of the respondents obtained the properties, covered under both the S.M. Proceedings, from Ammachu Chettiaramma, who, in turn, obtained the kanam right as per the family partition. Exhibit P1 shows that in 1927, Kunhalan executed the said document, CRP 2031&2045/99 5 termed “panaya kychit” in favour of Ammachu Chettiaramma, whereunder, the said property, having an extent of 6 x 5 six feet kole in Sy.No.215/4 and obtained it on paying Rupees Ten and agreeing to pay Rupees Six per annum as “purapad pattam”. The document shows that the purpose of obtaining the property was to construct a shop building and has agreed to surrender the property after three years, when Rupees Ten, obtained by Ammachu Chettiaramma, is returned along with the value of improvements. Therefore, it is absolutely clear that the property obtained by Ammachu Chettiaramma as a kanari was entrusted with Kunhalan under the said document for the purpose of constructing a building and agreeing to surrender the property on receipt of the value of the building as well as Rupees Ten, paid at the time of execution of the document and it was not executed to secure the money advanced. CRP 2031&2045/99 6 6. Moreover, the annual payment to be made by the executant is Rupees Six, even though, what was paid as mortgage under Exhibit P1 is only Rupees Ten. On a reading of Exhibit P1, it is evident that there has been a transfer for enjoyment of the rent. It is not for security of the loan advanced. In such circumstances, Exhibit P1 transaction cannot be a mortgage. It was obtained only for the purpose of constructing a shop building by the executant in the property so obtained and is liable to pay the stipulated rent. Therefore, it is absolutely clear that though the nomenclature of the document is panaya kychit, it is, in fact, a lease. If that be so, the findings of the Land Tribunal as well as the Appellate Authority that it is a mortgage is unsustainable. It can only be set aside. 7. Though the learned counsel appearing for the petitioners argued that there was no case for the respondents that it is a lease and therefore, it CRP 2031&2045/99 7 cannot be found that Exhibit P1 creates a leasehold right, even the case of the petitioners is that it is a lease. They only contended that it is a commercial lease, which is exempted under sub- section (iii) of Section 3 of the Act. Therefore, on construing Exhibit P1, it can only be found that the right created under Exhibit P1 is a leasehold right and not a mortgage right. 8. Then the question is whether it is a lease exempted under sub-section (iii) of Section 3 of the Act. 9. Sub-section (iii) of Section 3 of the Act provides that nothing in Chapter II shall apply to leases of land or of buildings or of both, specifically granted for industrial or commercial purposes. It is absolutely clear that the lease created under Exhibit P1 is for the purpose of constructing a shop building. It is, therefore, a lease for commercial purpose as provided under sub- section (iii) of Section 3 of the Act. If that be CRP 2031&2045/99 8 so, the lease created under Exhibit P1 is exempted under Section 3(iii) of the Act. Therefore, Section 72, which comes under Chapter II, is not applicable. Hence, the Land Tribunal cannot assign the jenm right to the respondents, as has been done in this case. Petitions are, therefore, allowed. Orders passed by the Land Tribunal, Tirur in S.M.Proceedings Nos.309/1990 and 310/1990 and confirmed by the Appellate Authority in A.A.Nos. 235/1997 and 236/1997 are set aside. The S.M. Proceedings stand dropped. 27th January, 2010 (M.Sasidharan Nambiar, Judge) tkv