IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 550 of 1997(E)
1. NARAYANA BHAT
... Petitioner
Vs
1. GOWRI
... Respondent
For Petitioner :SRI.K.I.MAYANKUTTY MATHER
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/03/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.550 of 1997 - E
and
Cross Objection
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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
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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
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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
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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
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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.
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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
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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/-