TaxTMI 
TaxTMI 
1968 (4) TMI 92
X X X X Extracts X X X X
X X X X Extracts X X X X
....llai, Adv. In C.R.P. No. 1175 of 1966 and M.K. Narayana Menon, M.P. Menon and C.S. Narayanan, 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 refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Provided that the fair rent payable by a cultivating kanamdar or a cultivating customary verumpattamdar shall 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsfer of an interest in immovable property. Section 105 of the Transfer of Property Act defines lease as a transfer of right to enjoy immovable 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssee in possession can be excluded by express contract. It does not mean that the parties can agree that the lessee is to have no right of possession. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... varam arrangement By the definitions of varam and varamdar in Section 2(60) of the Act, it has to be held that varamdar is not a tenant. 13. But '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 Sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#39; is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and 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 qualifyi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ount to a lease under Section 105 of the Transfer of Property Act. Raman Nayar, J. in Dudachan v. Sreenivasa Kini 1963 Ker LT 408, while considering the definition of 'possession' under Section 2(40) of Act IV of 1961 which is almost similar to Section 2(45) of the Act pointed out 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 ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fined which the landlord and the tenant have agreed or are bound under Section 48 or otherwise to treat as a separate holding". The word 'demise' is not defined in the Act. No doubt, it is used commonly in India to denote a transfer by lease. But if the word 'tenant' in Section 2(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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion:-- For the purpose of this section, 'the rent that was payable immediately before the commencement of this Act', in the case of varamdar, shall mean the average of the share of the landlord in the produce for the three years immediately preceding such commencement, or, where the 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 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 'tena....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esult is that it will not be possible to enforce the provisions of Section 65 of the Act in regard to varamdars. 24. Again Section 73 of the Act which prescribes a method of discharge of arrears of rent accrued due from a tenant provides in the Explanation to Sub-section (1) of Section 73 that "for the purposes of this sub-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 ....