TMI Blog1968 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... rayanan, Advs. In O.P. Nos. 4668 and 4669 of 1966 JUDGMENT T.S. Krishnamoorthy Iyer, J. The common question that arises in all the cases is whether a varamdar defined in the latter portion of Section 2, Sub-section (60) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) has got the right to file an application for the determination of 'fair rent' under Section 31 of the said Act. Section 2(13) of Act 1 of 1964 defines 'fair rent' as meaning 'the rent payable by a cultivating tenant under Section 27 or Section 33' of the Act. 2. In the orders which are the subject-matter of C. R. Ps. 675 to 678 of 1966 the Subordinate Judge took the view that the cultivating tenant has no such right. Though the same question is raised in C. R. Ps. 1174 and 1175 of 1966 the point was not raised before the appellate Judge. In the Original petitions which challenge the orders of the Land Tribunal, Moovattupuzha, the Land Tribunal conceded the right to the Varamdar'. 3. The latter portion of Section 2(60) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereinafter referred to as the Act, defines Varamdar' as meaning, 'the person who underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not exceed the michavaram payable by such kanamdar or the rent payable by such customary varumpattamdar, as the case may be . Section 33. Agreement as to fair rent. --Notwithstanding anything contained in the foregoing sections, it shall be competent for the landlord and the tenant to agree as to what shall be the fair rent payable in respect of the holding and, where such an agreement signed by the landlord and the tenant is filed with the Land Tribunal, the Land Tribunal shall pass orders determining such agreed rent as the fair rent in respect of the holding: Provided that the agreed rent shall not exceed the fair rent under Section 27, in respect of the holding : Provided further that where there are intermediaries or other persons having an interest in the holding, the land owner, the cultivating tenant and all the intermediaries and other persons interested shall be parties to such an agreement: Provided also that this section shall not apply to a case where the landlord is a religious, charitable or educational institution of a public nature . Section 27(2) of the Act has been deleted by Act 9 of 1967. 5. Section 31 of the Act insists that the determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property 'for a certain time' or 'in perpetuity' for consideration. The Section recognises also a lease of immovable property in consideration of a share of crops. There was considerable discussion at the Bar regarding the incidents of a varam transaction and the status of a varamdar under the general law of the State as against the owner of the land which the former is cultivating. The fundamental conception of a lease is that it is the separation of the right of possession from ownership. Salmond in his book on Jurisprudence (eleventh edition by Glanville Williams) observed at page 464: A lease, in this generic sense, is that form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the rightful separation of ownership and possession. We have seen that possession is the continuing exercise of a right, and that although a right is normally exercised by the owner of it, it may in special cases be exercised by someone else. This separation of ownership and possession may be either rightful or wrongful, and if rightful it is an encumbrance of the owner's title . 10. In every leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If they do so, then the transaction would not be a lease . 11. There cannot therefore be any doubt regarding the essential characteristics of a lease. The learned counsel opposing the claim of the varamdars relied on some decisions to establish the legal incidents of varam transaction, that the interest of the varamdar is only to cultivate the land and share the produce, a varamdar has no possession or control of the land and that there is no transfer of any interest in the land in his favour. In Criminal Revn. Petn. 2-15 of 1104 = 22 Trav LJ 22, a Division Bench of the Travancore High Court took the view that a landlord who has let his land on pathivaram is in joint possession of the standing crop with the lessee. In Kunhay-yappan v. Chatha 9 Cochin LR 41S, the view was taken by the Chief Court of Cochin that a pankuvaramdar has no possession of the land which he cultivates and that his true legal character is of a licensee. The decision in 9 Cochin LR 418, was cited with approval by Raman Nayar, J., in Balan v. State 1959 Ker LT 885 (2) = (AIR 1960 Ker 263). In Ouseph v. Kunjathu 1951 Ker LT 44 (AIR 1951 Trav-Co. 189), a Division Bench of the Travancore-Cochin High Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;tenant' defined in Section 2(57) of the Act includes a person who is deemed to be a tenant under Section 8 and Section 10 (iii) of the Act. It is therefore necessary to reproduce those provisions: Section 2(57). 'tenant' means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another to possess and to enjoy the land of the latter, and includes- (a)..... (b)..... (c)..... (d)..... (e)..... (f)..... (g)..... (h)..... (i)..... (j) a person who is deemed to be a tenant tinder Section 4, Section 5, Section 6, Section 7, Section 8, Section 9 or Section 10 . Section 8. Certain persons who were cultivating land on varam arrangement to be deemed tenants. Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of Court, any person who, by virtue of the provisions of Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957, was entitled to cultivate any nilam after the 11th day of April, 1957, and was cultivating the nilam at the commencement of this Act, shall be deemed to be a tenant, notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions . In Mellows v. Low (1923) 1 KB 522 at p. 526, Mc Cardie, J. observed: In any view the word 'includes' as used in Para (g) is not a term of limitation or precise definition; it means what it says--that it includes the matters thereafter mentioned; in other words, it is a word of enlargement rather than of restriction . 15. A person deemed to be a tenant under Section 8 or Section 10(iii) of the Act is therefore a tenant under the Act. A varamdar is thus a cultivating tenant if the expression 'tenant' in Section 2(8) is understood in the light of the definition clause in. Section 2(57) of the Act. 16. But the learned counsel opposing the claim of the varamdar submitted that in view of the qualifying words with which Section 2 of the Act opens, a strict adherence to the definition clause in Section 2(57) of the Act to interpret the word 'tenant' in Section 2(8) will lead to repugnance. To substantiate their contention it was pointed out that the two essential requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the said provision makes it clear that a varamdar like any other licensee has only a right of occupation which is not possession in the legal sense of that word although it is called possession for the purposes of the Act . In Ramanatha Aiyars Law Lexicon of British India, the meaning of the term 'occupation and possession' is stated thus : Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself constitute an occupation. The owner of vacant house is in possession, and may maintain trespass against any one who invades it; but as long as he leaves it vacant he is not in occupation; nor is he an occupier: per Lush J., R. v. St. Paneras (1877) 2 QBD 581. There is a distinction between 'occupation' and 'possession', because there may be a legal or constructive possession where there is no actual occupation . In Madras Anjuman Islamia of Kholwad v. Municipal Council of Johansesburg (1922) 31 Mad LT 114, their Lordships of the Judicial Committee said : The word 'occupy' is a word of uncertain meaning. Sometimes it denotes legal possession, in the technical sense, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17) is interpreted in the light of the definition of 'tenant' in the Act, the land in respect of which a varam right is given will be a holding under the Act. Further Section 2 of the Act is only subject to the qualifying clause 'unless the context otherwise requires'. Even if there is any inconsistency because of the definition of 'holding' in Section 2(17) of the Act, the term 'holding' in Section 2(8) of the Act will have to be given a meaning consistent with the context in which the term is used. It therefore follows that a 'varamdar' defined in the latter part of Section 2(60) of the Act is a cultivating tenant as defined in Section 2(8) of the Act. 20. The view we have taken gains support from the rates prescribed in Schedule III of the Act for fixing the fair rent in accordance with the terms of Section 27(1) of the Act. Item 1 (viii) in Schedule III deals with nilam where fishing is carried on for part of the year by a varamdar and the rate of fair rent provided in column (3) of Schedule III for this class of land is aggregate of rent fixed as for nilam and 1/8th of the gross annual income derived from fishing in such manner as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the land continuously for the said period of three years, the share of the landlord for the year in which the varamdar cultivated the land last, immediately before such commencement . The Explanation to the section was relied on by the counsel for the varamdar to show that it implies that the varamdar has a right to have the fair rent fixed. On the other hand the counsel for the owners submitted that there is no such implication. According to them, the Explanation to Section 35 of the Act only prevents the owners from realising from the varamdars any amount more than that fixed by Section 35. If so, the said provision will apply to the quantum of rent payable by a varamdar after the Act. The term 'tenant' in Section 35 of the Act must therefore include also a person deemed to be a tenant under Section 8 or Section 10(iii) of the Act. If the term 'tenant' in Section 35 is susceptible of that interpretation we do not find any reason to interpret the term 'tenant' occurring in Section 13(1) of the Act in a different manner. We are therefore of the view, that Section 13(1) confers fixity on a varamdar also. This view will gain strength if the history of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section, arrears of rent due from a varamdar shall be calculated on the basis of the average of the share of the landlord in the produce for the three years immediately preceding the commencement of this Act or, where a varamdar was not cultivating the land continuously for the said period of three years, the share of the landlord for the year in which the varamdar cultivated the land last immediately before the commencement of this Act. It will be remembered that this Explanation is almost similar to the Explanation to Section 35 of the Act. Section 73(1) of the Act opens with the clause 'all arrears of rent accrued due from a tenant'. The expression 'tenant' in view of the Explanation to the Section should necessarily include a person even deemed to be a tenant under Section 8 or 10(iii) of the Act who is only the varamdar. 25. The above discussion shows that fixity of tenure in Section 13(1) of the Act is available to a varamdar also. The right of resumption under Sections 14 to 22 is available to owner of the nilam against the varamdar. The right of surrender by a tenant under Section 51, purchase of landlord's right by cultivating tenants under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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