{"id":14480,"date":"1990-04-19T00:00:00","date_gmt":"1990-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/othayath-lekshmy-and-anr-vs-nellachinkuniyil-govindan-nair-on-19-april-1990"},"modified":"2016-09-06T19:04:26","modified_gmt":"2016-09-06T13:34:26","slug":"othayath-lekshmy-and-anr-vs-nellachinkuniyil-govindan-nair-on-19-april-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/othayath-lekshmy-and-anr-vs-nellachinkuniyil-govindan-nair-on-19-april-1990","title":{"rendered":"Othayath Lekshmy And Anr vs Nellachinkuniyil Govindan Nair … on 19 April, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Othayath Lekshmy And Anr vs Nellachinkuniyil Govindan Nair … on 19 April, 1990<\/div>\n
Equivalent citations: 1990 SCR (2) 539, \t 1990 SCC (3) 374<\/div>\n
Author: S Pandian<\/div>\n
Bench: Pandian, S.R. (J)<\/div>\n
           PETITIONER:\nOTHAYATH LEKSHMY AND ANR.\n\n\tVs.\n\nRESPONDENT:\nNELLACHINKUNIYIL GOVINDAN NAIR AND ORS.\n\nDATE OF JUDGMENT19\/04\/1990\n\nBENCH:\nPANDIAN, S.R. (J)\nBENCH:\nPANDIAN, S.R. (J)\nRAY, B.C. (J)\n\nCITATION:\n 1990 SCR  (2) 539\t  1990 SCC  (3) 374\n JT 1990 (3)   230\t  1990 SCALE  (1)196\n\n\nACT:\n    Kerala  Land Reforms Act--Amended by 9 of 1967 &  35  of\n1969-Section 13(B)--When the tenant is entitled for restora-\ntion of possession or when the bona fide purchaser is  enti-\ntled for protection.\nConstitution  of India, 1950. Article  136--Interference  of\nSupreme Court--Where manifest injustice or grave miscarriage\nof Justice results.\n\n\n\nHEADNOTE:\n     The appellants fried an Execution Application in  1970\nin  the\t Court of Munsiff under Section 13(B)  of  the\tLand\nReforms\t Act 1969 for the restoration of the  possession  of\nthe properties which were sold in Court auction in pursuance\nof a decree for arrears of rent. The decree holder and Court\nauction purchasers were close relatives. The sale took place\non 26.11. 1962 and was confirmed on 14.8.1964. It is the 3rd\nRespondent  a stranger in the present appeal  who  purchased\nthe property in the Court auction and got the possession  of\nthe  same  on 9.1.1965 from the appellants.  The  appellants\ntrespassed into the suit property again and were ejected  in\n1966  pursuant\tto a decree in a suit.\tThereafter  the\t 3rd\nRespondent i.e. the auction purchaser assigned the  property\nin favour of Respondents No. 1 & 2 who were the close  rela-\ntives vide sale deeds dated 5.12.1966 (Exts A2 and A3).\t The\nappellants  had\t already filed\tExecution  Application,\t for\nrestoration of possession after making necessary deposit for\nthe  purchase  money under section 6 of Act 9 of  1967.\t The\nsame was pending when Act 35 of 1969 came into force and  so\nthe  appellants made an application with a prayer  that\t the\nearlier deposit be treated as a deposit under section  13(B)\nof 1969 Act.\n    The Court auction purchaser i.e. 3rd Respondent and\t his\nassignees  Respondents\tNo. 1 & 2  strongly  contended\tthat\nappellants  have no interest in the properties.\t The  appel-\nlants  attacked\t the validity of the sale deeds\t being\tmade\nwithout consideration. The trial Court held that the  appel-\nlants were tenants when they were dispossessed and also held\nthat  the deposit made by the appellants was sufficient\t for\nrestoration of possession, and Respondents No. 1 & 2 are not\nbona fide purchasers for consideration, and hence set  aside\nthe sale.\nThe  Respondents No. 1 & 2 made application before the\tsub-\ncourt\n540\nand  the court held the petitioners were competent to  main-\ntain  the application and were bona fide purchasers  as\t per\nrecords such as revenue and tax receipts plus the  admission\nof the vendor and vendee as to the payment of consideration.\nAs  to the deposit made by the appellants it was  considered\nto be sufficient in case they were found entitled for resto-\nration\tof possession; set aside the Trial Court  order\t and\nallowed the appeal.\n    The appellants therefore filed E.S.A. in the High  Court\nand  the High Court upheld that the decision and the  decree\nof the lower Appellate Court as per evidence, and as circum-\nstances of the case complied with public records  establish-\ning that Respondents 1 & 2 are the bona fide purchasers\t for\nconsideration. But the first appellate court concurred\twith\nthe  Trial  Court regarding the deposit already made  to  be\nsufficient and the interest accrued would be directed to  be\ndeposited if the appellants were found entitled to  restora-\ntion of possession. The said finding has not been  dislodged\nby the High Court.\nAllowing the Special Leave Petition, this Court,\n    HELD: In the instant case, two substantial questions are\ninvolved  i.e. (1) whether respondents 1 & 2 are  bona\tfide\npurchasers  of\tthe scheduled land in dispute  for  adequate\nconsideration  and  thereby entitled to the benefit  of\t the\nproviso\t inserted  vide\t Act 35 of 1969\t to  sec.  13(B)(1).\n[547F]\n    (2)\t Whether the appellants are entitled to the  benefit\nof subsection (1) of section 13(B) of the Act. [547F-G]\n    As per section 13(B)--where any holding has been sold in\nexecution  of any decree for arrears of rent and the  tenant\nhas  been dispossessed of the holding after the 1st  day  of\nApril  1964 and before the commencement of the\tKerala\tLand\nReforms\t (Amendment)  Act 1969, such sale  shall  stand\t set\naside  and such tenant shall be entitled to  restoration  of\npossession of the holding subject to the provisions of\tthis\nsection. [558 B-C]\n    Provided that nothing in this sub-section shah apply  in\nany  case  where the holding has been sold to  a  bona\tfide\npurchaser  for consideration after the date of such  dispos-\nsession\t and  before the date of the publication  of  Kerala\nLand Reforms (Amendment) Bill 1968 in the Gazettee. [554D-E]\n541\n    The\t concurrent finding of facts by both  the  appellate\ncourts\tthat Respondents No. 1 & 2 are bona fide  purchasers\nfor  consideration  warrant interference  because  both\t the\nappellate courts have conveniently ignored and excluded from\nconsideration even the relationship of the parties  inter-se\ni.e.  the decree bolder, court auction purchaser  are  close\nrelatives and have assigned the property in favour of  their\nclose relatives and a stranger- This assumes much importance\nand significance in evaluating the evidence in the light  of\nthe facts and circumstances of the case for reaching  satis-\nfactory\t conclusion.  The  court has failed  to\t render\t any\nfinding on substantial question of Law. The lack of recitals\nwith  regard to the consideration has also  been  completely\nignored-  It seemed to have disposed of the case  summarily.\n[553B-D]\n    It\tis  not merely the inadequacy  of  consideration  as\npointed\t out by the lower appellate court but there is\tlack\nof evidence in substantiating the recitals of the  documents\nthat  Respondents  No. 1 & 2 are bona fide  purchasers.\t The\nreceipts  for  the payment of tax, rent or  revenue  are  by\nthemselves  cannot  dispel  the claims\tof  the\t appellants.\n[545C]\n    The\t conclusion  arrived at by both the courts  is\tonly\nbacked\tby  assertions rather than by  acceptable  reasoning\nbased on the proper evaluation of evidence. So the  evidence\nand  circumstances of the case coupled with the evidence  on\nrecord do establish that the Respondents 1 & 2 are not\tbona\nfide purchasers for consideration. [553E-F]\n    Discretionary  powers under Article 136 has to be  exer-\ncised  sparingly but when there are exceptional and  special\ncircumstances  justifying  the\texercise  of   discretionary\npowers and where manifest injustice or grave miscarriage  of\njustice has resulted by overlooking or ignoring or excluding\nmaterial  evidence resulting in undue hardships, this  Court\nwill  be justified in stepping in and interfering  with\t the\nconcurrent findings of facts in the interest of justice\t and\nit is also the duty of this Court to remedy the injustice so\nresulted.  Dipak Baneriee v. Lilabatichakraborty,  [1987]  4\nSCC 161, relied on. [552H; 553A-B]\n     On the question whether the appellants are entitled  to\nthe  benefit  of section 13(B)(1) of the Act, it  was  held:\n[553G]\n     The Kerala Land Reforms Act of 1963 came into force  on\n1.4.1964, Act 9 of 1967 was a temporary Act and remained  in\nforce  till 31.12.1969, Act 35 of 1969 came into force\tfrom\n1.1.1970  and  section 13(B) is substantially  on  the\tsame\nterms as section 6 of 1967 Act with a\n542\nproviso super-added. To invoke section 13(B) two  conditions\nare  sine  qua\tnon. (1) Any holding to which  a  tenant  is\nentitled to restoration of possession should have been\tsold\nin  execution  of any decree for arrears of  rent.  (2)\t The\ntenant\tshould have been dispossessed of the  holding  after\n1.4.1964  and  before the commencement of 1969\tAct.  [553H;\n554A-C]\n    Thus  the  tenant shall be entitled\t to  restoration  of\npossession  under section 13(B) provided the holding is\t not\nsold  to a bona fide purchaser for consideration, after\t the\ndate  of  dispossession and before the\tpublication  of\t the\nKerala\tLand Reforms (Amendment) Bill 1968 in the  Gazettee.\nThe  appellants\t are entitled to have the  benefit  of\tsub-\nsection\t (1)  of section 13(B) only if they  have  made\t the\ndeposit of the purchase money together with interest at\t the\nrate  of 6% Per Annum in the Court and applied to the  Court\nfor setting aside the sale and for restoration of the  hold-\ning.  The  appellants in the instant case had  already\tmade\ndeposit\t under\t1967 Act and it was pending when Act  35  of\n1969 came into force. So the appellants made an\t application\nwith  a\t prayer\t to treat the  said  deposites\tcontinuation\nunaffected by the provisions of 1969 Act. [554D-F]\n    The Language of section 13(B) is plain, clear and  unam-\nbiguous\t and  the  very purpose of the section\tis  to\tvest\nrights\ton  the\t displaced tenants, which  is  the  dominant\npurpose of the statute, which should be considered. [554G-H]\n    P. Rami Reddy & Ors. v. State of Andhra Pradesh &  Ors.,<\/a>\n[1988]\t3 SCC 433: Skandia Insurance Co.  Ltd..v.  Kokilaben\nChandravadan  &\t Ors.,\t[1987] 2 SCC 654  and  M\/s.  Doypack\nSystems\t Pvt.  Ltd. v. Union of India & Ors.,<\/a> [1988]  2\t SCC\n299. relied on.\n    The sale of holdings of the appellants was in  execution\nof  the decree for arrears of rent in O.S. No. 817 of  1943,\nand  appellants\t are tenants who were  dispossessed  of\t the\nholdings after 1.4.1964 and before the commencement of\t1969\nAct.  They are therefore entitled to restoration of  posses-\nsion  of the properties in dispute but without prejudice  of\nthe  rights if any of the Respondents Nos. 7 to 10  who\t are\nthe  wife and children of Gopalan Nambiar. The amount  under\ndeposit made by the appellants is permitted to be  withdrawn\nby respondents 1 to 3. [558B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1924  of
\n1990.\n<\/p>\n
    From the Judgment and Order dated 6.8.1986 of the Kerala
\nHigh Court in E.S.A. No. 15 of 1979.\n<\/p>\n
543<\/span><\/p>\n
    K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for\t the
\nAppellants.\n<\/p>\n
    T.S.  Krishnamoorthy Iyer, P.S. Poti,  S.  Balakrishnan,
\nDeepak\tNargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D.\tNam-
\nboodiri and Irfan Ahmed for the Respondents.
\nThe Judgment of the Court was delivered by
\nS. RATNAVEL PANDIAN, J. Special leave granted.
\n    The\t unsuccessful appellants herein have preferred\tthis
\nappeal\tagainst\t the judgment of the High  Court  of  Kerala
\ndated  6.8.1985 passed in E.S.A. (Execution  Second  Appeal)
\nNo.  15\t of 1979 whereby the High Court dismissed  the\tsaid
\nappeal\tfiled by the appellants. The relevant  facts  giving
\nrise  to this appeal are necessary to be  recapitulated\t and
\nthey are as follows:\n<\/p>\n
    Othayath  Gopalan  Nambiar\t(since\tdead)  and  Othayath
\nLekshmy\t Amma (who is the first appellant herein)  filed  an
\nExecution  Application No. 556 of 1970 in Original Suit\t No.
\n817  of 1943 in the court of the Munsiff of  Badagara  under
\nSection\t 13(B)\tof the Land Reforms Act, as amended  by\t the
\nAmending  Act  35 of 1969 (hereinafter referred\t to  as\t the
\n‘Act’)\tfor  restoration  of possession\t of  the  properties
\nmentioned  in  the schedule of the application,\t which\twere
\nsold  in court auction for arrears of rent in  pursuance  of
\nthe decree made in O.S. No. 817 of 1943.1t seems that during
\nthe pendency of the proceedings before the Munsiff, Othayath
\nGopalan\t Nambiar died and thereafter the  first\t appellant’s
\nson  claiming to be the karnavan of the tavazhi got  himself
\nimpleaded  as  the third petitioner in\tthe  said  Execution
\nApplication, who is figuring as the second appellant herein.
\n    In order to decide the questions that arise for  consid-
\neration, certain salient and material facts may be recapitu-
\nlated. The suit, O.S. ‘No. 817 of 1943 was filed for  recov-
\nery  of\t arrears of rent of Rs.815 for the  Malayalam  years
\n1116  to  1118, corresponding to English era 1941  to  1943.
\nThere  were 11 defendants of whom Othayath  Gopalan  Nambiar
\nand  the  first\t appellant were the defendants 2  and  3.  A
\npreliminary  decree was passed on 26.5.1944 followed by\t the
\nfinal decree on 29.11. 1944. The decree-holder assigned\t the
\ndecree to another member of his family, who in turn assigned
\nit to one Kunhikannan. The rights of Kunhikannan devolved on
\nRespondents  2\tto 4 in the Execution  Application  who\t are
\nRespondents 4 to 6 in this appeal and who brought the
\n544<\/span>
\nproperty  to sale. The sale took place on 26.11.  1962.\t One
\nThekkayil Kanaran who was the first Respondent in the Execu-
\ntion Application, i.e. the third Respondent herein purchased
\nthe property in the Court auction held on 26.11.1962,  which
\nsale  was confirmed on 14.8. 1964 and consequently  obtained
\ndelivery  of  the disputed scheduled property  extending  to
\n8.70  acres  of double crop wet land through court  on\t9.1.
\n1965  from the possession of the appellants. Ex. C 3 is\t the
\ndelivery  account  and\treport submitted by  the  Amin.\t The
\nremaining  extent of the property was in the  possession  of
\nthe  sub-tenants  in respect of which there  was  resistence
\nwith which we are not concerned here.\n<\/p>\n
    After  the delivery has been effected,  Gopalan  Nambiar
\nand  the  first appellant herein trespassed  into  the\tsuit
\nproperty. Therefore, the Court auction purchaser filed\tO.S.
\n6 of 1966 in the court of the Subordinate Judge of  Badagara
\nfor recovery of possession. The suit was decreed as per\t the
\njudgment  Ex. B 16 dated 27.7.1966. Ex. B 15 is the  decree.
\nEx B 49 dated 25.8.1966 and Ex. B 50 dated 22.8.1966 are the
\nrespective certified copies of the delivery account  submit-
\nted by the  Amin and the delivery warrant issued to Amin  in
\nO.S.  No. 6 of 1966. The auction purchaser, i.e.  third\t re-
\nspondent  in this appeal assigned portions of  the  property
\nunder sale-deeds Exts. A2 and A3 dated 5.12.1966 to the\t 5th
\nand  6th respondents in the Execution Application,  who\t are
\nthe first and second respondent in this appeal. 1t is stated
\nthat  while  the first respondent is  stranger,\t the  second
\nrespondent  is\tnone other than the wife of the\t fourth\t re-
\nspondent.  As we have pointed out earlier, this\t fourth\t re-
\nspondent  is among the three respondents on whom the  rights
\nof Kunhikannan devolved.\n<\/p>\n
    While it is so, Act 9 of 1967 came into force. So  Gopa-
\nlan Nambiar and the first appellant filed Execution Applica-
\ntion  No. 1711 of 1967 for restoration of  possession  under
\nthe  said  amended Act after making the\t necessary  deposit.
\nWhile this E.A. was pending, Act 35 of 1969 tame into  force
\n(Kerala Land Reforms Amendment Act) repealing Act 9 of 1967.
\nSo  the appellants filed E.A. 556\/70 under Section 13  B  of
\nthe  Act  for restoration of possession with a\tprayer\tthat
\nearlier\t deposit  made under Act 9 of 1967 be treated  as  a
\ndeposit under Act 35 of 1969 and also under took to pay\t the
\nbalance,  if any, as would be found by the Court. The  third
\nrespondent  (court  auction  purchaser)\t and  his  assignees
\nRespondents  1 and 2 contended that the appellants  have  no
\ninterest in the properties and the delivery of the  property
\nhad already been taken. The appellants attacked the validity
\nof  Ex. A2 and A3 contending that the assignments in  favour
\nof  Respondents 1 and 2 were made without consideration\t and
\nbona fides and that auction
\n545<\/span>
\npurchaser  Thekkayil  Kanaran, Respondent No. 3 was  only  a
\nbenamidar  of the decree-holder in the matter of  the  Court
\nauction purchase. This application (E.A. 556\/70) was stoutly
\nopposed\t by the respondents inter-alia contending  that\t the
\nproperties  did not belong to the Tavazhi of the  appellants
\nand the appellants have no right to the suit properties\t and
\nare  not  entitled to apply for restoration  of\t possession.
\nAccording to the respondents, there is no valid deposit\t and
\nafter the delivery of the property has been effected,  Gopa-
\nlan Nambiar trespassed into the properties and he was eject-
\ned by recourse to a suit and thereafter the properties\twere
\nassigned to Respondents 1 and 2 for proper consideration and
\nbona  fides and they are in possession of the properties  on
\nthe  strength of the said sale-deeds. The Trial\t Court\theld
\nthat the appellants were the tenants of the properties\twhen
\nthey  were dispossessed and the deposit made by\t the  appel-
\nlants  was  sufficient and the Respondents 1 and 2  are\t not
\nbona fide purchasers for consideration. On the said  finding
\nit allowed E .A. 556\/70 and set aside the sale.
\n    Aggrieved by the order of the Trial Court, the  Respond-
\nents 1 and 2 filed A.S. 49\/74 before the Sub Court,  Badaga-
\nra,  which for deciding the appeal posed the following\tfour
\npoints for its consideration, namely:\n<\/p>\n
1. Are the Petitioners entitled to maintain the application?\n<\/p>\n
2. Is the deposit sufficient?\n<\/p>\n
3. Are the appellants bona fide purchaser for consideration?\n<\/p>\n
   4.  Whether the court sale is liable to be set aside\t and
\nthe restoration of possession claimed allowable? If so,\t are
\nthe  petitioners liable to pay anything by way of  value  of
\nimprovements?\n<\/p>\n
The learned Judge answered the first point–
\n“that the petitioners are competent to maintain the applica-
\ntion,”\n<\/p>\n
and the second point holding–\n<\/p>\n
”   …..  that the deposit when it was made is\t sufficient.
\nHowever the interest accrued till date of the present appli-
\ncation\twill be directed to be deposited in case  the  peti-
\ntioners are found entitled to restoration of possession.”\n<\/p>\n
546<\/span><\/p>\n
Coming to the third point it has been held thus–
\n“The  first  respondent\t (third respondent  in\tS.L.P.)\t had
\nabsolutely  no necessity to execute any sham documents.\t The
\nfact  that respondents 5 and 6 (Respondents 1 and 2  in\t the
\nSLP)  came into possession and exercised their rights  under
\nExhibits  A2 and A3 by payment of rent and revenue and\tpay-
\nment  of  consideration\t spoken to by both  the\t vendor\t and
\nvendee\tare sufficient to hold that they are bona fide\tpur-
\nchasers for consideration.”\n<\/p>\n
Under the fourth point, the relief claimed by the appellants
\nwas  held  to be rejected. In the result, the order  of\t the
\nTrial  Court was set aside and the appeal was  allowed\tdis-
\nmissing E.A. 556\/70.\n<\/p>\n
    The\t learned  Subordinate Judge has also  expressed\t his
\nopinion\t in his judgment that in summary  proceedings  under
\nSection 13B of the Act, the plea of the appellants that\t the
\nthird  respondent was a benamidar of the  fourth  respondent
\ncannot be allowed to be raised in the light of Section 66 of
\nthe Civil Procedure Code.\n<\/p>\n
    On being dissatisfied with the judgment of the  Subordi-
\nnate  Judge, the appellants preferred E.S.A. No. 15\/79.\t The
\nrespondents  filed their cross objections. Though  the\tHigh
\nCourt admitted the appeal on being satisfied that the appeal
\ninvolves  as  many as 11 substantial questions\tof  law,  it
\ndisposed the appeal on a short ground that the documents and
\nthe  evidence adduced by the respondents 1 and\t2  (Govindan
\nNair and Ambrolil Ammalu) clearly show that the\t respondents
\n1 and 2 are bona fide purchasers of the properties in  ques-
\ntion  for consideration and the plea of benami put forth  by
\nthe  appellants has to be negatived. The contentions in\t the
\ncross  objections were that for filing an application  under
\nSection 13(B)(1) of the Act, a deposit of the purchase money
\ntogether  with\tthe interest at the rate of 6 per  cent\t per
\nannum  in  the court is a condition precedent and  that\t the
\nfinding of the lower Appellate Court that the earlier depos-
\nit made under Act 9 of 1967 was sufficient and the  interest
\naccrued till the date of the Execution Application under Act
\n35  of\t1969 would be directed to be deposited in  case\t the
\nappellants were found entitled to restoration of  possession
\nof  the property is erroneous. The High Court  disposed\t the
\ncontentions in the main appeal observing thus:
\n“It  is\t not necessary for me to examine this  question\t and
\nfinally\t adjudicate it, since I have upheld the decision  of
\nthe
\n547<\/span>
\nlower appellate Court on other grounds. I only indicate that
\nthe  respondents’ counsel thought to sustain the  conclusion
\nof the lower appellate court on other grounds as well.”
\nIn  the\t result, the High Court affirmed the decree  of\t the
\nlower  Appellate Court and dismissed the second Appeal\twith
\ncosts.\n<\/p>\n
So far as the cross-objections are concerned, the High Court
\npassed the following order:\n<\/p>\n
“There is no need to dispose of the cross-objections on\t the
\nmerits. It is ordered accordingly.”\n<\/p>\n
Hence the appellants by this appeal are impunging the  judg-
\nment of the High Court.\n<\/p>\n
    Mr.\t K.K. Venugopal, Sr. Counsel appearing on behalf  of
\nthe appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and
\nMr. P.S. Poti, St. Counsel appearing on behalf of the  first
\nand second respondents respectively took us very meticulous-
\nly  and scrupulously through the judgments of all the  three
\ncourts and put forth the case of their respective parties.
\n    Having  heard the learned counsel on either side  for  a
\nconsiderable length of time, we are clearly of the view on a
\nconspectus  of the relevant Section 13(B) of the Act and  on
\nthe  factual matrix of the case that the result of the\tcase
\nwould depend upon the decision of two substantial  questions
\ninvolved, they being–\n<\/p>\n
   (1) Whether respondents 1 and 2 are bona fide  purchasers
\nof the scheduled land in dispute for adequate  consideration
\nentitling to the benefit of the proviso to Section 13(B)(1)?
\n   (2) Whether the appellants are entitled to the benefit of
\nsubSection (1) of Section 13(B) of the Act?\n<\/p>\n
    Before making a more detailed and searching analysis  on
\ndifferent  aspects  of the case, it would be  necessary\t for
\nproper understanding of the issues involved to reproduce the
\nrelevant  provisions of Section 13(B)(1) of the Act, on\t the
\npivotal of which both the questions revolve.
\nSection 13B: There is no requirement in any of the clauses
\n548<\/span>
\nthat  an  offer of readiness to comply with  any  order\t for
\ndeposit\t of costs must be expressed in any judgment,  decree
\nor order of court, where any holding has been sold in execu-
\ntion  of any decree for arrears of rent, and the tenant\t has
\nbeen dispossessed of the holding after the 1st day of April,
\n1964 and before the commencement of the Kerala Land  Reforms
\n(Amendment)  Act, 1969, such sale shall stand set aside\t and
\nsuch  tenant shall be entitled to restoration of  possession
\nof the holding, subject to the provisions of this Section;
\nProvided that nothing in this sub-Section shall apply in any
\ncase where the holding has been sold to a bona fide purchas-
\ner  for Consideration after the date of\t such  dispossession
\nand  before the date of publication of the Kerala  Land\t Re-
\nforms (Amendment) Bill, 1968 in the Gazette.
\n    If\tthe answer to the first question is in the  affirma-
\ntive, then there is no need to consider the second  question
\nas  it\twould  be only academic. We,  therefore,  shall\t now
\naddress ourselves in the first instance whether the  concur-
\nrent finding of facts by both the Appellate Courts  relating
\nto the first question warrant interference.
\n    Before  the Trial Court whilst the\tappellants  examined
\nPWs  1 to 4 and filed Exhibits A 1 to A22,  the\t respondents
\nexamined  RWs  1  to 4 and marked Exhibits B. 1\t to  B\t.58.
\nBesides,  Ex.  X- 1, X-2, X-3, X-5 and X-6 and C. 1  to\t C.4
\nwere also exhibited.\n<\/p>\n
    The\t Respondents 4 to 6 admittedly are brothers.  Though
\nat the initial stage, Mr. Krishnamurthy Iyer did not  accept
\nthe relationship of the third Respondent with Respondents  4
\nto  6  on the ground of lack of\t evidence,  subsequently  no
\nserious dispute was raised about the said relationship.\t The
\nTrial Court has proceeded on the ground that the Respondents
\n3  to 6 are brothers being the sons of Kunhikannan in  whose
\nfavour the decree had been assigned. However, it is admitted
\nduring\tthe course of hearing of this appeal that the  third
\nRespondent  is not a direct brother of Respondents 4  to  6,
\nbut son of the step-mother of Respondents 4 to 6. The second
\nRespondent  Ambrolil  Ammalu is admittedly the wife  of\t the
\nfourth\tRespondent Krishnan. The first\tRespondent  Govindan
\nNair is a stranger. The third Respondent, the Court  auction
\npurchaser  sold the property extending 4.35 acres in  favour
\nof the first Respondent and the remaining half in favour  of
\nthe  second  Respondent under sale-deeds Exts. A.2  and\t A.3
\ndated
\n549<\/span>
\n5.12.  1966.  Consideration mentioned in each of  the  sale-
\ndeeds  Exts. A.2 and A.3 is Rs.3,000. Out of Rs.3,000  shown
\nas  consideration for A.2 a sum of Rs.2,500 is said to\thave
\nbeen  left with the first Respondent for payment of  arrears
\nof rent. In Ex. A.3, it is recited that the third respondent
\nis  said to have already received Rs.2,000 on  a  promissory
\nnote  from  the second Respondent for meeting  the  expenses
\nincurred  by him for conducting O.S. No. 6\/66. The said\t sum
\nof  Rs.2,000  is stated to have been  adjusted\ttowards\t the
\nconsideration under Ex. A3.\n<\/p>\n
    The\t first Respondent has produced a receipt  (Ex.\tB28)
\nshowing that out of the amount of Rs.2,500 left with him  he
\nhad  paid a sum of Rs. 100. There is no other document\tevi-
\ndencing the discharge of the entire alleged arrears of\trent
\nout-of\tRs.2,400. When the third Respondent  was  questioned
\nabout  the  promissory note on the strength of which  he  is
\nstated\tto  have borrowed a sum of Rs.2,000, he\t has  stated
\nthat  he had returned the promissory note. This evidence  as
\nrightly pointed out by Mr. Venugopal is highly\tunacceptable
\nbecause\t in  usual practice whenever a debt, borrowed  on  a
\npromissory  note is discharged that promissory note  is\t re-
\nturned\tto  the\t borrower and never left  with\tthe  lender.
\nMoreover,  the evidence of the third Respondent\t is  contra-
\ndicted by RW. 3, the son of the second Respondent. According
\nto RW. 3, when Ex. A.3 was executed, the promissory note was
\nreturned  to the third Respondent. According to Mr.  Venugo-
\npal, this contradictory version betwixt the evidence of\t the
\nfirst  Respondent and RW. 3 clearly shows that\tthe  recital
\nregarding payment of consideration to the extent of Rs.2,000
\nin Ex. A.3 is not genuine and acceptable and that Ex. A.3 is
\nnot fully supported by consideration. As per the recitals of
\nconsideration  under  Exhibits A.2 and A.3  the\t total\tcash
\nconsideration received by the third Respondent was only\t Rs.
\n1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from
\nthe  second Respondent. It is vehemently urged on behalf  of
\nthe  appellants that the third Respondent  after  purchasing
\nthe  property for Rs.815 in 1962 would not have parted\twith
\nit after fighting several litigations for a cash  considera-
\ntion of Rs.1,500 only. The evidence of the third  Respondent
\nthat he left a sum of Rs.2,500 with the first Respondent for
\ndischarging  arrears of rent and earlier received a  sum  of
\nRs.2,000 from the second Respondent on a promissory note  is
\nnot credit worthy in the absence of any supporting contempo-
\nrary  documentary evidence. His assertion that he  paid\t the
\namount\tfor the Court auction purchase in the year 1962\t out
\nof  the money in his possession as well as  from  borrowings
\nshows  that he was a man of slender means. When he was\tcon-
\nfronted\t from whom he borrowed that amount, his\t answer\t was
\nthat he did not remember from whom and how much he borrowed.
\nThe
\n550<\/span>
\nTrial  Court has rightly pointed out in paragraph 19 of\t its
\nOrder that the third Respondent did not leave any impression
\nthat he was conversant with the various pending\t litigations
\nregarding the present property.\n<\/p>\n
    Mr.\t Venugopal  drew out attention to another  piece  of
\nevidence of RW3, deposing that his father was never consult-
\ned  with regard to Ex. A3 and assailed his evidence  as\t in-
\ncredible  and bereft of truthfulness and  trust\t worthiness.
\nComing to the sale-deed, Ex. A2 it is stated that the  first
\nRespondent  is\tresiding about 11 miles\t away  from  Palayed
\nAmson  where  the  property is situated.  He  has  no  other
\nproperty  in Amson. The reason given by him  for  purchasing
\nthis  property which was already riddled with litigation  is
\nnot at all convincing.\n<\/p>\n
    The first appellate Court while perfunctorily  rejecting
\nthe reasoning of the Trial Court with regard to the  consid-
\neration part of Ex. A2 and A3 disposed of that contention in
\na summary manner holding:\n<\/p>\n
“The apparent inadequacy is no ground to think that there is
\nno consideration  …..\t I don’t think that the recitals  in
\nExhibits  A2 and A3 can be overlooked for this or the  other
\nreasons stated by the learned Munsiff.”\n<\/p>\n
    Then relying on Exhibits B 17, B28, B31, B41 and B45 and
\nother documents it concluded:\n<\/p>\n
“that  the Respondents 1 and 2 came into possession  of\t the
\nproperties and exercised their rights under Exhibits A2\t and
\nA3 by payment of rent and revenue and payment of  considera-
\ntion  spoken  to by both the vendor and vendee and  as\tsuch
\nthey are bona fide purchasers for consideration.”\n<\/p>\n
    The\t High Court accepting the reasons given by the\tsub-
\nJudge held thus:\n<\/p>\n
“Most  of  these documents are public records  or  registers
\nkept  in  the respective village office and  proceedings  in
\ncourts. There is no more of law in placing reliance on\tsuch
\ndocuments.  The finding entered by the\tlearned\t Subordinate
\nJudge that respondents 5 and 6 are bona fide purchasers\t for
\nconsideration is based on substantial evidence. It cannot be
\nsaid to be arbitrary or unreasonable or perverse. ‘ ‘
\n551<\/span>
\n    But both the Appellate Courts have conveniently  ignored
\neven  the  relationship of the parties\twhich  assumes\tmuch
\nimportance  and significance in evaluating the\tevidence  in
\nthe  light  of the facts and circumstances of the  case\t for
\nreaching a satisfactory conclusion and seem to have summari-
\nly disposed of the case of the appellants.\n<\/p>\n
    The question is not the mere inadequacy of consideration
\nas  pointed by the lower appellate Court, but lack  of\tevi-
\ndence in substantiating the recitals of both the  documents.
\nThe next contention advanced by Mr. Venugopal is that though
\nthe  High  Court has formulated as many\t as  11\t substantial
\nquestions of law. it has not dealt with any of them  enumer-
\nated as (a) to (e) and examined the question No. (f) in\t the
\nproper\tperspective. Further the important question No.\t (g)
\nreading “rs not the admitted fact that the 6th respondent is
\nthe wife of the 2nd respondent prima facie proof that she is
\nnot  a bona .fide purchaser for value” is not at  all  dealt
\nwith.  It may be noted in this connection that the  6th\t re-
\nspondent and the 2nd respondent referred to in that question
\nare  Ambrolil  Ammalu (2nd respondent herein)  and  Krishnan
\n(4th respondent herein). As pointed out supra the High Court
\nitself has expressed that it was inclined to dispose of\t the
\nappeal ‘on a short ground’.\n<\/p>\n
    The bone of contention of Mr. Krishnamurthy Iyer and Mr.
\nPoti  is that it is not open to the appellants to  reagitate
\nthe matter and request this Court to disturb the  concurrent
\nfinding\t of  facts arrived at by both the  appellate  Courts
\nwhich  had rendered their findings on the proper  evaluation
\nof the evidence and there can be no justification to  review
\nor re-appreciate the evidence to take a contrary view in the
\nabsence\t of any contemporaneous document in support  of\t the
\nplea  of the appellants. In addition to the above, Mr.\tPoti
\nurged that the appellants have not properly and\t satisfacto-
\nrily  discharged  the onus of proof cast upon them  and\t the
\nconcurrent  findings  based  on\t voluminous  documents,\t the
\ncopies\tof which are not annexed to the SLP for\t perusal  of
\nthis Court, do not call for interference.\n<\/p>\n
    In\treply  to  the above arguments,\t Mr.  Venugopal\t has
\npointed\t out that none of the documents referred to  in\t the
\njudgments  of the appellate Courts would either improve\t the
\ncase  of  the respondents or deny the claims of\t the  appel-
\nlants. Of the documents relied upon by the appellate Courts,
\nEx.  B 17 and B31 are the true extracts showing\t payment  of
\ntax  in\t the  Village Officer Day Book. Ex. B28\t is  a\trent
\nreceipt dated 23.2.1969 issued by the receiver appointed  in
\nO.S.  1\/64  on the file of the Sub  Court  (lower  appellate
\nCourt). B. 42 is a true extract
\n552<\/span>
\nfrom the Foodgrains Cultivation Register and B.46 is a\ttrue
\nextract\t from  the Peringathor Village Account.\t Ex.B.41  to
\nB.45 are the levy notices and revenue receipts for the years
\n1967, 1968. 1969 and 1973. Exhibits B.55 to B.59 are  copies
\nof  orders in M.C. No. 3\/71. As rightly pointed out  by\t Mr.
\nVenugopal,  it is but natural that the receipt for the\tpay-
\nment of tax, rent receipt, revenue receipt etc., are in\t the
\nnames of the persons in whose names the properties stand and
\ntherefore  those documents cannot by themselves\t dispel\t the
\nclaim  of the appellants. Besides, urging with\taH  emphasis
\nthat Exhibits A2 and A3 are only sham and nominal documents,
\nit  has\t been incidentally urged by Mr. Venugopal  that\t the
\ntransaction under these two sale-deeds is benami in  nature.
\nThis argument was stoutly resisted by Mr. Krishnamurthy Iyer
\nstating that in the teeth of Section 66 of the Code of Civil
\nProcedure and in the absence of any proceedings to set aside
\nthe  sale in favour of respondents 5 and 6 on the ground  of
\nfraud etc., the plea of benami transaction cannot be counte-
\nnanced. He also cited the decision in Mithilesh Kutnari\t and
\nAnother\t v.  Prem  Behari Khare,<\/a> [1989] 2 SCC  95.  But\t Mr.
\nVenugopal  explained his argument that he has  not  advanced
\nthat  argument to set aside the sale-deeds on the ground  of
\nbenami\ttransaction, but only for scrutinising\tthe  circum-
\nstances of the transaction in examining the validity of\t the
\nsale-deeds.  However, as the plea of benami  transaction  is
\nnot pressed into service, it need not detain us any more.
\n    We\tshah now examine whether this Court would be  justi-
\nfied in interfering with the concurrent finding of facts  in
\nexercise  of its discretionary powers under Article  136  of
\nthe  Constitution  of India. In a recent decision  in  Dipak
\nBanerjee  v. Lilabati Chakraborty,<\/a> [1987] 4 SCC 161  it\t has
\nbeen observed thus:\n<\/p>\n
“That jurisdiction (under Article 136 of the Constitution of
\nIndia) has to be exercised sparingly. But, that cannot\tmean
\nthai injustice must be perpetuated because it has been\tdone
\ntwo  or three times in a case. The burden of showing that  a
\nconcurrent  decision of two or more courts or  tribunals  is
\nmanifestly  unjust  lies  on the appellant.  But  once\tthat
\nburden is discharged, it is not only the right but the\tduty
\nof the Supreme Court to remedy the injustice.”\n<\/p>\n
    No\tdoubt, this discretionary power has to be  exercised
\nsparingly;  Out when there are exceptional and special\tcir-
\ncumstances  justifying\tthe exercise  of  the  discretionary
\npowers and where manifest injustice or grave miscarriage  of
\njustice has resulted by overlooking or ignoring or
\n553<\/span>
\nexcluding  material evidence resulting in  unduly  excessive
\nhardships,  this Court will be justified in stepping in\t and
\ninterfering  with  the concurrent finding of  facts  in\t the
\ninterest of justice and it is also the duty of this Court to
\nremedy\tthe  injustice, so resulted. Vide Basudev  Hazra  v.
\nMeutiar\t Rahaman  Mandal,<\/a> [1971] 3 SCR 378 and\tBhanu  Kumar
\nShastri\t v. Mohan Lal Sukhadia and Others,<\/a> [1971] 1 SCC\t 370
\nat pages 385 and 386.\n<\/p>\n
    The present case, in our view, suffers from the infirmi-
\nty  of\texcluding,  ignoring and  overlooking  the  abundant
\nmaterials  and\tthe  evidence, which if\t considered  in\t the
\nproper\tperspective would have led to a conclusion  contrary
\nto the one taken by both the appellate Courts. The relation-
\nship of the parties inter se has been completely and conven-
\niently ignored and excluded from consideration. In fact, the
\nHigh Court has not rendered any finding on question No.\t (g)
\nwhich  is  one of the eleven substantial  questions  of\t law
\nformulated  in\tparagraph  3 of its judgment.  The  lack  of
\nevidence in support of the recital in regard to the  consid-
\neration is completely overlooked. Therefore, in view of\t the
\nabove  exceptional  and special circumstances  appearing  in
\nthis  case, this Court will not be justified in refusing  to
\nexercise its discretionary powers merely on the ground\tthat
\nthe conclusion of both the Courts is concurrent.
\n    For the discussions made above, we are of the view\tthat
\nthe  conclusion arrived at by both the appellate  Courts  is
\nonly backed by assertions rather than by acceptable  reason-
\ning based on the proper evaluation of evidence and so we are
\nunable\tto  subscribe  to the concurrent  finding  that\t the
\nrespondents 1 and 2 are bona fide purchasers of the  proper-
\nties  in  dispute for consideration. On the other  hand,  we
\nhold that the evidence and circumstances of the case coupled
\nwith  the evidence on record do establish that the  respond-
\nents 1 and 2 are not bona fide purchasers for consideration.
\n    In the result, we hold that the respondents 1 and 2\t are
\nnot  entitled to the benefit of the proviso  to\t sub-Section
\n(1)  of Section 13(B) of the Act and answer the first  ques-
\ntion  against  the respondents and in favour of\t the  appel-
\nlants.\n<\/p>\n
    We\tshall now pass on to the next question\twhether\t the
\nappellants  are entitled to the benefit of Section  13(B)(1)
\nof the Act.\n<\/p>\n
    The\t Kerala Land Reforms Act of 1963 came into force  on
\n1.4.1964.  Amended Act 9 of 1967 was a\ttemporary  enactment
\nwhich
\n554<\/span>
\nremained  in force till 31.12. 1969. Thereafter, Act  35  of
\n1969 came into force from, 1.1.1970 containing Section 13(B)
\nwhich is substantially on the same terms as Section 6 of Act
\n9 of 1967 with a proviso superadded. To invoke this  benevo-
\nlent  provision, the satisfaction of two primary  conditions
\nare sine qua non. Those conditions are:\n<\/p>\n
   (1) Any “holding” to which a tenant is entitled to resto-
\nration\tof possession should have been sold in execution  of
\nany decree for arrears of rent.\n<\/p>\n
   (2)\tThe  tenant  should have been  dispossessed  of\t the
\n“holding”  after the first day of April 1964 and before\t the
\ncommencement  of  the Kerala Land Reforms  (Amendment)\tAct,
\n1969.\n<\/p>\n
    If\tthese two essential conditions are  fulfilled,\tthen
\nthe  sale  in execution of any decree for  arrears  of\trent
\nshall  stand set aside notwithstanding anything to the\tcon-
\ntrary  contained  in any law or in any judgment,  decree  or
\norder of court and the tenant shall be entitled to  restora-
\ntion  of  possession  of such holding, but  subject  to\t the
\nprovisions of this Section 13B. The only bar for the  resto-
\nration of possession under this Section 13(B)(1) is the sale
\nof  the holding to a bona fide purchaser  for  consideration
\nafter the date of such dispossession and before the date  of
\npublication of the Kerala Land Reforms (Amendment) Bill 1968
\nin the Gazette. For invoking the benefit of sub-Section\t (1)
\nof  section  13(B)  the person entitled\t to  restoration  of
\npossession of his holding should within a period of 6 months
\nfrom the commencement of the Kerala Land Reforms (Amendment)
\nAct, 1969 deposit the purchase money together with  interest
\nat the rate of 6 percent per annum in the court and apply to
\nthe court for setting aside the sale and for restoration  of
\npossession of his holding. Once these legal formalities\t are
\nsatisfactorily\tcomplied  with then the Court by  holding  a
\nsummary\t enquiry  shall set aside the sale and\trestore\t the
\napplicant  to possession of his holding. The explanation  to
\nthat section says that the term ‘holding’ includes a part of
\nholding.  The  expression “holding” is\tdefined\t in  Section
\n2(17) of the Act.\n<\/p>\n
    The language of Section 13(B) is plain, clear and  unam-
\nbiguous\t representing the real intention of the\t legislature
\nas reflected not only from the clear words deployed but also
\nfrom  the very purpose of the vesting of rights on the\tdis-
\nplaced\ttenants.  To construe the provisions  of  a  statute
\nespecially  of a benevolent provision like the one in  ques-
\ntion,  we have to take into consideration the dominant\tpur-
\npose  of the statute, the intention of the  legislature\t and
\nthe policy underlying. Vide
\n555<\/span>
\nP. Rami Reddy & Others v. State of Andhra Pradesh &  Others,<\/a>
\n[1988]\t3 SCC 433; Skandia Insurance Co. Ltd.  v.  Kokilaben
\nChandravadan  &\t Others,<\/a> [1987] 2 SCC 654  and\tM\/s  Doypack
\nSystems\t Pvt. Ltd. v. Union of India & Others,<\/a> [1988] 2\t SCC\n<\/p>\n
299.
\n    Admittedly,\t the third respondent obtained\tdelivery  of
\nthe property in question through court on 29.1.1965 from the
\npossession  of the appellants, who were the tenants  of\t the
\nsaid property which was sold for arrears of rent and  there-
\nafter the appellants preferred a petition for restoration of
\npossession  of their holdings in Execution  Application\t No.
\n1711\/67\t under Section 6 of Act 9 of 1967  after  depositing
\nthe  sale amount of Rs.815 and the interest of Rs.255.\tThus
\nthe appellants have satisfied the conditions for entitlement
\nof the possession of the property. While this proceeding was
\npending,  Act 35 of 1969 came into force repealing Act 9  of
\n1967. Therefore, the appellants filed the Execution Applica-
\ntion  No.  566\/70 in O.S. 817\/43 praying  that\tthe  present
\napplication  should be treated as a proceeding in  continua-
\ntion  of  the earlier Execution Application and\t the  amount
\ndeposited  already  in the  previous  Execution\t Application
\nshould\tbe  treated as deposit for the\tpresent\t application
\nwith  an undertaking to deposit the balance, if any.  Though
\nit has been contended by the respondents that the appellants
\nhave failed to establish that they were tenants at the\ttime
\nof  the dispossession, both the Trial Court as well  as\t the
\nfirst  appellate  Court\t have concurrently  found  that\t the
\nappellants  were  holding the property as tenants  and\tthey
\nwere  dispossessed. Before the High Court, it was  contended
\nthat at the time of dispossession of the holding, the appel-
\nlants  were not tenants but only trespassers, that the\tdis-
\npossesion  was only pursuant to the decree in O.S. No.\t6\/66
\nand that both the lower Courts have not applied their  minds
\nto  these salient and vital facts. The learned Judge of\t the
\nHigh  Court has answered this contention in the\t penultimate
\nparagraph of his judgment observing thus:
\n”     This is a serious legal error. It is not necessary for
\nme to examine this question and finally adjudicate it, since
\nI  have upheld the decision of the lower appellate court  on
\nother grounds.”\n<\/p>\n
Suffice to mention here that the High Court has not specifi-
\ncally  dislodged the findings of the lower Courts  that\t the
\nappellants  were tenants at the time of\t the  dispossession.
\nHowever, we will deal with this question presently.
\nThe main thrust of the argument of Mr. Krishnamurthy Iyer is
\n556<\/span>
\nthat  the appellants are not entitled to restoration of\t the
\npossession  of\ttheir ‘holding’ because\t of  an\t intervening
\ncause,\tthat being, that the third respondent, got the\tpos-
\nsession of the property which is now sought to be  disturbed
\nnot  in execution of the decree for arrears of rent, but  by
\nfiling\ta  suit subsequent to ‘the court  auction  purchase.
\nThat  intervening cause is explained by the learned  counsel
\n‘stating  that after the property was delivered over to\t the
\nthird respondent on 29.1.1965, Gopalan Nambiar (since  dead)
\nand  the  first\t appellant trespassed into  the\t land  which
\nnecessitated  the third respondent to institute a suit\tO.S.
\nNo.  6\/66 in the Sub Court of Badagara which was decreed  on
\n27.7.  1966 as evidenced by the judgment (Ex. B16). He\tcon-
\ntinues to state that the third respondent, only in pursuance
\nof  the execution of this decree in O.S. 6\/66 obtained\tpos-
\nsession of the property on 23.8. 1966 and therefore  Section
\n13(B)(1)  in  view of the said intervening cause  cannot  be
\navailed of since the third respondent though ‘got possession
\nearlier\t by  the auction purchase was  dispossessed  by\t the
\nsubsequent  event  of  trespass by the\tappellants  and\t got
\npossession  by\tinstituting the suit O.S.  6\/66.  One  other
\nargument of the learned’ counsel is that as the sales  under
\nExhibits A2 and A3 are only subsequent to the decree in O.S.
\nNo.  6\/66,  these transactions cannot be  brought  into\t the
\ndragnet of Section 13(B) and the said provision will have no
\napplication to the facts of the present case. We are afraid,
\nwe cannot permit this inconceivable argument to be advanced.
\nAdmittedly,  the third respondent purchased the property  in
\ncourt auction sale in pursuance of the decree for arrears of
\nrent  in  O.S.\tNo. 817\/43 and obtained\t the  possession  by
\ndispossessing  the tenants, namely, the appellants.  It\t was
\nonly thereafter there was trespass by the appellants. There-
\nfore,  the subsequent event of obtaining possession  of\t the
\nproperty  in pursuance of the decree in O.S. No.  6\/66\twill
\nnot  in any way alter the position that the  appellants\t had
\nbeen dispossessed in pursuance of the decree for arrears  of
\nrent.  The decree in O.S. No. 6\/66 for obtaining  possession
\nfrom the trespassers does not confer any new right or  title
\nover  the  property in favour of the third  respondent.\t Mr.
\nVenugopal countered this argument stating that this new plea
\nshould\tnot  be allowed to be raised because this  plea\t was
\nnever  taken both before the trial and the  first  appellate
\nCourts.\t The reply given by Mr. Krishnamurthy Iyer  is\tthat
\nsince  it is a question of law, it is permissible  to  raise
\nthis  question even at this stage. As we have said  earlier,
\neven  assuming\tthat this plea could be raised,\t it  has  no
\nsubstance  in any way affecting the claim of the  appellants
\nfor the reasons stated supra.\n<\/p>\n
    Mr. Poti after giving a brief note about the legislative
\nhistory\t that  Act 4 of 1961 was declared as void  on  5.12.
\n1961 in respect of certain
\n557<\/span>
\nprovisions  and\t that thereafter Act 1 of 1964\twas  enacted
\nwhich came into force on 1.4.1964 repealing earlier Act 4 of
\n1961  advanced a hesitant argument that the  application  is
\nliable\tto  be dismissed as the entire amount has  not\tbeen
\ndeposited  in  compliance with sub-Section  (2)\t of  Section
\n13(B)  which is a condition precedent to claim the  restora-
\ntion  of  the  possession of the  property.  Admittedly\t the
\nappellants filed an application in the year 1967 for  resto-
\nration of the possession of the property under Section 6  of
\nAct. 9 of 1967 and during the pendency of that\tapplication,
\nAct  35 of 1969 came into force. The applicant who  had\t al-
\nready  deposited the purchase amount together with  interest
\nhas made the request to treat that application as the one in
\ncontinuation  of the later proceeding and undertook  to\t pay
\nthe  deficiency of the amount, if any. The  lower  appellate
\nCourt in paragraph 6 of its judgment found that the  deposit
\nalready\t made was sufficient and that the  interest  accrued
\nthereafter  would  be directed to be deposited in  case\t the
\nappellants were found entitled to restoration of possession.
\nThis  finding of the first appellate Court  concurring\twith
\nthe Trial Court has not been dislodged by the High Court. It
\nmay  not be out of place to mention that on account of\tcer-
\ntain divergent views expressed by Judges of the Kerala\tHigh
\nCourt on this point the question was referred to a  Division
\nBench of that Court which drawing strength on the ratio laid
\ndown by this Court in State of Punjab v. Mohar Singh,<\/a> [1955]
\n1 SCR 893 :AIR 1955 SC 84 observing:\n<\/p>\n
\t “The line of enquiry would be, not whether the\t new
\nAct  expressly\tkeeps alive old rights and  liabilities\t but
\nwhether it manifests an intention to destroy them.”
\nand agreeing with the view expressed by Krishnamurthy  Iyer,
\nJ (as he then was and who is now appearing before us for the
\nfirst  respondent in different capacity) in  Civil  Revision
\nPetition  Nos. 1090 and 109 1 of 1972 wherein  this  precise
\nquestion came up for consideration held that the application
\nfiled under Section 6 of Act 9 of 1967 which was pending  on
\nthe  date  of  the commencement of the Act 35  of  1969\t was
\nliable\tto be continued and dealt with under the  provisions
\nof  the earlier Act, untrammelled by the provisions  of\t the
\nlater Act. We approve the view taken in the above Parameswa-
\nran Narnbudiri’s case and hold that the deposit made in\t the
\nearlier\t application under Section 6 of Act 9 of 1967  which
\nwas  pending on the date of commencement of Act 35  of\t1969
\nwas  liable to be continued uneffected by the provisions  of
\nthe later Act.\n<\/p>\n
558<\/span><\/p>\n
In Summation:\n<\/p>\n
    We, for the aforementioned discussion, disagree with the
\nfindings of the High Court, set aside the impugned  judgment
\nand restore the judgment of the Trial Court holding that the
\nsale of the ‘holdings’ of the appellants was in execution of
\nthe  decree in O.S. No. 817\/43 for arrears of rent  and\t the
\nappellants who are tenants were dispossessed of the holdings
\nafter 1.4.64 and before the commencement of the Kerala\tLand
\nReforms\t (Amendment) Act, 1969 and the respondents 1  and  2
\nare  not bona fide purchasers for consideration. In view  of
\nour above conclusion the appellants are entitled to  recover
\npossession of the properties in dispute, but without  preju-
\ndice  to the rights, if any, of the respondents 7 to 10\t who
\nare  the wife and children of Gopalan Nambiar and  who\thave
\ngot themselves impleaded as parties to the present  proceed-
\nings.  The  amount under deposit made by the  appellants  is
\npermitted to be withdrawn by the respondents 1 to 3.
\nIn the result, the appeal is allowed with costs.\n<\/p>\n
S.B.\t\t\t\t\t\tAppeal\t al-\nlowed.\n559<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Othayath Lekshmy And Anr vs Nellachinkuniyil Govindan Nair … on 19 April, 1990 Equivalent citations: 1990 SCR (2) 539, 1990 SCC (3) 374 Author: S Pandian Bench: Pandian, S.R. (J) PETITIONER: OTHAYATH LEKSHMY AND ANR. Vs. RESPONDENT: NELLACHINKUNIYIL GOVINDAN NAIR AND ORS. DATE OF JUDGMENT19\/04\/1990 BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-14480","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOthayath Lekshmy And Anr vs Nellachinkuniyil Govindan Nair ... on 19 April, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/othayath-lekshmy-and-anr-vs-nellachinkuniyil-govindan-nair-on-19-april-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Othayath Lekshmy And Anr vs Nellachinkuniyil Govindan Nair ... on 19 April, 1990 - 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