# OTHA YA TH LEKSHMY AND ANR v. NELLACHINKUNIYIL GOVINDAN NAIR AND ORS

- **Citation:** [1990] 2 S.C.R. 539
- **Court:** Supreme Court of India
- **Decided:** 1990-04-19
- **Case number:** Civil Appeal No. 1924 of 1990
- **Bench:** B.C. Ray Ands. Ra1Navel Pandian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/otha-ya-th-lekshmy-and-anr-v-nellachinkuniyil-govindan-nair-and-ors-10717
- **Pages:** 20

## Headnote

B
Kera/a Land Reforms Act-Amended by 9 of 1967 & 35 of 1969Section 13(B)-When the tenant is entitled for restoration of possession
'
or when the bona fide purchaser is entitled for protection.
':(
Constitution of India, 1950. Article 136-lnterference of Supreme
y
Court-Where manifest injustice or grave miscarriage of Justice results.
c
The appellants tiled an Execution Application in 1970 in the Court
of Munsiff under Section 13(B) of the Land Reforms Act 1969 for the
-;<
restoration of the possession of the properties which were sold in Court
auction in pursuance of a decree for arrears of rent. The decree holder
and Court auction purchasers were close relatives. The sale took place on
D
26.11.1962 and \vas confirmed on 14.8.1964. It is the 3rd Respondent a
stranger in the present appeal who purchased the property in the Court
auction and got the possession of the same on 9.1.1965 from the appellarits. The appellants trespassed ·into the suit property again and were
ejected in 1966 pursuant to a decree in a suit. Thereafter the 3rd
~
Respondent i.e. the auction purchaser assigned the property in favour
E
of Respondents No. 1 & 2 who were the close relatives vide sale deeds
dated 5.12.1966 (Exts A2 and A3). The appellants had already fded
Execution Application, for restoration of possession after making
necessary deposit for the purchase money under section 6 of Act 9 of
1967. The same was pending when Act 35of1969 came into force and so
the appellants made an application with a prayer that the earlier
F
~ .. -
deposit be treated as a deposit under section 13(B) of 1969 Act.
,
~·
The Court auction. purchaser i.e. 3rd Respondent and his
assignees Respondents No. 1 & 2 strongly contended that appellants
have no interest in the properties. The appellants attacked the validity
of the sale deeds being made without consideration. The trial Court
G
held that the appellants were tenants when they were dispossessed and
also held that the deposit made by th~ appellants was sufficient for
restoration of possession, and Respondents No. l & 2 are not bona fide
~ purchasers for consideration, and hence set aside the sale.
'
The Respondents No. l & 2 made application before the sub-court
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539
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SUPREME COURT REPORTS
[1990] 2 S.C.R.
and the court held the petitioners were competent to maintain the application and were bona fide purchasers as per records such as revenue
and tax receipts plus the admission of the vendor and vendee as to the
payment of consideration. As to the deposit made hy the appellants it
was considered to be sufficient in case they were found entitled for
restoration of possession; set aside the Trial Court order and allowed
the appeal.
The appellants therefore filed E.S.A. in the High Court and the
High Court upheld that the decision and the decree of the lower Appellate Court as per evidence, and as circumstances of the case complied
with public records establishing that Respondents I & 2 are the bona
fide purchasers for consideration. But the first appellate court concurred with the Trial Court regarding the deposit already made to be
sufficient and the interest accrued would be directed to be deposited if
the appellants were found entitled to restoration of po8session. The said
finding has not been dislodged by the High Court.
Allowing the Special Leave Petition, this Court,
HELD: In the instant case, two substantial questions are involved
i.e. (1) whether respondents l & 2 are bona fide purchasers of the
scheduled land in dispute for adequate consideration and thereby
entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec.
l3(B)(l). [547F]
(2) Whether the appellants are entitled to the benefit of subsection (l) of section 13(B) of the Act. [547F-G]
As per section l3(B)-where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before
the commencement of the Kerala Land Ref

## Text

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OTHA YA TH LEKSHMY AND ANR.
A
v.
NELLACHINKUNIYIL GOVINDAN NAIR AND ORS.
-~-
APRIL 19, 1990
[B.C. RAY ANDS. RA1NAVEL PANDIAN, JJ.]
B
Kera/a Land Reforms Act-Amended by 9 of 1967 & 35 of 1969Section 13(B)-When the tenant is entitled for restoration of possession
'
or when the bona fide purchaser is entitled for protection.
':(
Constitution of India, 1950. Article 136-lnterference of Supreme
y
Court-Where manifest injustice or grave miscarriage of Justice results.
c
The appellants tiled an Execution Application in 1970 in the Court
of Munsiff under Section 13(B) of the Land Reforms Act 1969 for the
-;<
restoration of the possession of the properties which were sold in Court
auction in pursuance of a decree for arrears of rent. The decree holder
and Court auction purchasers were close relatives. The sale took place on
D
26.11.1962 and \vas confirmed on 14.8.1964. It is the 3rd Respondent a
stranger in the present appeal who purchased the property in the Court
auction and got the possession of the same on 9.1.1965 from the appellarits. The appellants trespassed ·into the suit property again and were
ejected in 1966 pursuant to a decree in a suit. Thereafter the 3rd
~
Respondent i.e. the auction purchaser assigned the property in favour
E
of Respondents No. 1 & 2 who were the close relatives vide sale deeds
dated 5.12.1966 (Exts A2 and A3). The appellants had already fded
Execution Application, for restoration of possession after making
necessary deposit for the purchase money under section 6 of Act 9 of
1967. The same was pending when Act 35of1969 came into force and so
the appellants made an application with a prayer that the earlier
F
~ .. -
deposit be treated as a deposit under section 13(B) of 1969 Act.
,
~·
The Court auction. purchaser i.e. 3rd Respondent and his
assignees Respondents No. 1 & 2 strongly contended that appellants
have no interest in the properties. The appellants attacked the validity
of the sale deeds being made without consideration. The trial Court
G
held that the appellants were tenants when they were dispossessed and
also held that the deposit made by th~ appellants was sufficient for
restoration of possession, and Respondents No. l & 2 are not bona fide
~ purchasers for consideration, and hence set aside the sale.
'
The Respondents No. l & 2 made application before the sub-court
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540
SUPREME COURT REPORTS
[1990] 2 S.C.R.
and the court held the petitioners were competent to maintain the application and were bona fide purchasers as per records such as revenue
and tax receipts plus the admission of the vendor and vendee as to the
payment of consideration. As to the deposit made hy the appellants it
was considered to be sufficient in case they were found entitled for
restoration of possession; set aside the Trial Court order and allowed
the appeal.
The appellants therefore filed E.S.A. in the High Court and the
High Court upheld that the decision and the decree of the lower Appellate Court as per evidence, and as circumstances of the case complied
with public records establishing that Respondents I & 2 are the bona
fide purchasers for consideration. But the first appellate court concurred with the Trial Court regarding the deposit already made to be
sufficient and the interest accrued would be directed to be deposited if
the appellants were found entitled to restoration of po8session. The said
finding has not been dislodged by the High Court.
Allowing the Special Leave Petition, this Court,
HELD: In the instant case, two substantial questions are involved
i.e. (1) whether respondents l & 2 are bona fide purchasers of the
scheduled land in dispute for adequate consideration and thereby
entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec.
l3(B)(l). [547F]
(2) Whether the appellants are entitled to the benefit of subsection (l) of section 13(B) of the Act. [547F-G]
As per section l3(B)-where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before
the commencement of the Kerala Land Reforms (Amendment) Act
1969, such sale shall stand set aside and such tenant shall be entitled to
restoration of possession of the holding subject to the provisions of this
section. [558 B-C]
Provided that nothing in this sub-section shall apply in any case
where the holding bas been sold to a bona fide purchaser for consideration after the date of such dispossession and before the date of the
publication of Kerala Land Reforms (Amendment) Bill 1968 in the
Gazettee. [5540-E]
~
I
OTHAYATH v. N.G. NAIR
541
The concurrent finding of facts by both the appellate courts that
Respondents No. 1 & 2 are bona fide purchasers for consideration
warrant interference because both the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties inter-se i.e. the decree holder, court auction purchaser are close relatives and have assigned the property in favour of
their close relatives and a stranger. This assumes much importance and
significance in evaluating the evidence in the light of the facts and
circumstances of the case for reaching satisfactory conclusion. The
court has failed to render any fmding on substantial question of
Law. The lack of recitals with regard to the consideration has also
been completely ignored. It seemed to have disposed of the case
summarily. [553B-D I
It is not merely the inadequacy of consideration as pointed out by
the lower appellate court but there is lack of evidence in substantiating
the recitals of the documents that Respondents No. 1 & 2 are bona fide
purchasers. The receipts for the payment of tax, rent or revenue are by
themselves cannot dispel the claims of the appellants. [54SC I
The conclusion arrived at by both the courts is only backed by
assertions rather than by acceptable reasoning based on the proper
evaluation of evidence. So the evidence and circumstances of the case
coupled with the evidence on record do establish that the Respondents 1
& 2 are not bona fide purchasers for consideration. [SS3E-F]
Discretionary powers under Article 136 bas to be exercised sparingly bot when there are exceptional and special circnmstances justifying the exercise of discretionary powers and where manifest injustice or
grave miscarriage of justice has resnlted by overlooking or ignoring or
excluding material evidence resnlting in undne hardships, this Court
will be.justified in stepping in and interfering with the concurrent findings of facts in the interest of justice and it is also the duty of this Court
to remedy the injustice so resulted. Dipak Baneriee v. Lilabatichakraborty. [1987] 4 SCC 161, relied on. [552H; 553A-B]
A
B
c
D
E
F
On the question whether the appellants are entitled to the benefit
G
of section 13(B)(l) of the Act, it was held: [553G I
The Kerala Land Reforms Act of 1963 came into force on
1. 4.1964, Act 9 of 1967 was a temporary Act and remained in force till
31.12.1969, Act 35 of 1969 came into force from 1:1.1970 and section
13(B) is substantially on the same terms as section 6 of 1967 Act with a
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542
SUPREME COURT REPORTS
[1990] 2 S.C.R.
A
proviso super-added. To invoke section 13(B) two conditions are sine
qua non. (1) Any holding to which a tenant is entitled to restoration of
possession should have been sold in execution of any decree for arrears
of rent. (2) The tenant should have been dispossessed of the holding
after 1.4.1964 and before the commencement of 1969 Act. [553H; 554A-CJ
B
Thus the tenant shall be entitled to restoration of possession under
section 13(B) provided the holding is not sold to a bona fide purchaser
for consideration, after the date of dispossession and before the publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee. The appellants are entitled to have the benefit of sub-section (1) of
section 13(B) only if they have made the deposit of the purchase money
C together with interest at the rate of 6% Per Annum in the Court and
applied to the Court for setting aside the sale and for restoration of the
holding. The appellants in the instant case had already made deposit
under 1967 Act and it was pending when Act 35of1969 came into force.
So the appellants made an application with a prayer to treat the said
deposit as continuation unaffected by the provisions of 1969 Act. [5540-FJ
D
The Language of section 13(B) is plain, clear and unambiguous
and the very purpose of the section is to vest rights on the displaced
tenants, which is the dominant purpose of the statute, which should be
considered. [554G-H)
E
P. Rami Reddy & Ors. v. State of Andhra Pradesh & Ors., [1988)
A
3 SCC 433; Skandia Insurance Co. Ltd.·v. Kokilaben Chandravadan &
Ors., [1987) 2 SCC 654 and M/s. Doypack Systems Pvt. Ltd. v. Union
of India & Ors., [1988) 2 SCC 299, relied on.
The sale of holdings of the appellants was in execution of the
F
decree for arrears of rent in 0.S. No. 817 of 1943, and appellants are
tenants who were dispossessed of the holdings after 1.4.1964 and before
the commencement of 1969 Act. They are therefore entitled to restoration of possession of the properties in dispute but without prejudice of
the rights if any of the Respondents Nos. 7 to IO who are the wife and
children of Gopalan Nambiar. The amount under deposit made by the
G
appellants is permitted to be withdrawn by respondents I to 3. [558B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1924
of 1990.
From the Judgment and Order dated 6.8.1986 of the Kerala High
H Court in E.S.A. No. 15 of 1979.
- --4,_
--·-------
OTIIAYATII v. N.G. NAIR [PANDIAN, J.]
543
K.K. Venugopal, M.K. Sasidharan and P.K. Pillai for the
Appellants.
T.S. Krishnamoorthy Iyer, P.S. Poli, S. Balakrishnan, Deepak
Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D. Namboodiri and
Irfan Ahmed for the Respondents.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. Special leave granted.
The unsuccessful appellants herein have preferred this appeal
against the judgment of the High Court of Kerala dated 6.8.1985
passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby
the High Court dismissed the said appeal filed by the appellants. The
relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows:
Othayath Gopalan Nambiar (since dead) and Othayath Lekshmy
Amma (who is the first appellant herein) filed an Execution Application No. 556 of 1970 in Original Suit No. 817 of 1943 in the court of the
Munsiff of Badagara under Section 13(B) of the Land Reforms Act, as
amended by the Amending Act 35 of 1969 (hereinafter referred to as
the 'Act') for restoration of possession of the properties mentioned in
the schedule of the application, which were sold in court auction for
arrears of rent in pursuance of the decree made in O.S. No. 817 of
1943. It seems that during the pendency of the proceedings before the
Munsiff, Othayath Gopalan Nambiar died and ther_eafter the first
appellant's son claiming to be the karnavan of the tavazhi got himself
impleaded as the third petitioner in the said Execution Application,
who is figuring as the second appellant herein.
In order to decide the questions that arise for consideration,
certain salient and material facts may be recapitulated. The suit, O.S.
'No. 817 of 1943 was filed for recovery of arrears of rent of Rs.815 for
the Malayalam years 1116 to 1118, corresponding to English era 1941
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to 1943. There were 11 defendants of whom Othayath GopalanNambG
iar and the first appellant were the defendants 2 and 3. A preliminary
decree was passed on 26.5 .1944 followed by the final decree on
29.11.1944. The decree-holder assigned the decree to another member
of his family, who in turn assigned it to one Kunhikannan. The rights of
Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the
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544
SUPREME COURT REPORTS
[1990] 2 S.C.R.
property to sale. The sale took place on 26.11.1962. One Thekkayil
A Kanaran who was the first Respondent in the Execution Application,
i.e. the third Respondent herein purchased the property in the Court
auction held on 26.11.1962, which sale was confirmed on 14.8.1964
and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on
B 9.1.1965 from the possession of the appellants. Ex. C 3 is the delivery
account and report submitted by the Amin. The remaining extent of
the property was in the possession of the sub-tenants in respect of
which there was resistence with which we are not concerned here.
After the delivery has been effected, Gopalan Nambiar and the
first appellant herein trespassed into the suit property. Therefore, the
C Court auction purchaser filed O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession. The suit was
decreed as per the judgment Ex. B 16 dated 27.7.1966. Ex. B 15 is the
decree. Ex B 49 dated 25.8.1966 and Ex. B 50 dated 22.8.1966 are the
respective certified copies of the delivery account submitted by the
D Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966.
The auction purchaser, i.e. third respondent in this appeal assigned
portions of the property under sale-deeds Exts. A2 and A3 dated
5.12.1966 to the 5th and 6th respondents in the Execution Application,
who are the first and second respondent in this appeal. It is stated that
while the first respondent is stranger, the second respondent is none
E other than the wife of the fourth respondent. As we have pointed out
earlier, this fourth respondent is among the three respondents on
whom the rights of Kunhikannan devolved.
While it is so, Act 9 of 1967 came into force. So Gopalan
Nambiar and the first appellant filed Execution Application No. 1711
F of 1967 for restoration of possession under the said amended Act after
making the necessary deposit. While this E.A. was pending, Act 35 of
1969 tame into force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967. So the appellants filed E.A. 556/70 under Section 13
B of the Act for restoration of possession with a prayer that earlier
deposit made under Act 9 of 1967 be treated as a deposit under Act 35
G of 1969 and also under took to pay the balance, if any, as would be
found by the Court. The third respondent (court auction purchaser)
and his assignees Respondents 1 and 2 contended that the appellants
have no interest in the properties and the delivery of the property had
already been taken. The appellants attacked the validity of Ex. A2 and
A3 contending that the assignments in favour of Respondents 1 and 2
H were made without consideration and bona fides and that auction
~·
OTHAYATH v. N.G. NAIR IPANDIAN, J.j
545
purchaser Thekkayil Kanaran°, Respondent No. 3 was only a benamidar of the decree-holder in the matter of the Court auction purchase.
This application (E.A. 556/70) was stoutly opposed by the respondents
inter-alia contending that the properties did not belong to the Tavazhi
of the appellants and the appellants have no right to the suit properties
and are not entitled to apply for restoration of possession. According
to the respondents, there is no valid deposit and after the delivery of
the property has been effected, Gopalan Nambiar trespassed into the
properties and he was ejected by recourse to a suit and thereafter the
properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the
strength of the said sale-deeds. The Trial Court held that the appellants were the tenants of the properties when they were dispossessed
and the deposit made by the appellants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration. On the
said finding it allowed E.A. 556/70 and set aside the sale.
Aggrieved by the order of the Trial Court, the Respondents 1
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and 2 filed A.S. 49/74 before the Sub Court, Badagara, which for
O
deciding the appeal posed the following four points for its consideration, namely:
·
1. Are the Petitioners entitled to maintain the application?
2. Is the deposit sufficient?
3. Are the appellants bona fide purchaser for consideration'/
4. Whether the court sale is liable to be set aside and the restoration of possession claimed allowable? If so, are the petitioners
E
liable to pay anything by way of value of improvements?
·
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'}-
.
The learned Judge answered the first point.:..
"that the petitioners are competent to m;pntain the
application,"
and the second point holding-
" . . . . . that the deposit when it was made is sufficient.
However the interest accrued till date of the present application will be directed to be deposited in case the petiG
tioners are found entitled to restoration of possession."
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546
SUPREME COURT REPORTS
[ 1990] 2 S.C.R.
A
Coming to the third point it has been held thus-
"The first respondent (third respondent in S.L.P.) had
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absolutely no necessity to execute any sham documents.
The fact that respondents 5 and 6 (Respondents 1 and 2 in
the SLP) came into possession and exercised their rights
B
under Exhibits A2 and A3 by payment of rent and revenue
and payment of consideration spoken to by both the vendor
and vendee are sufficient to hold that they are bona fide
"'
purchasers for consideration."
Under the .fourth point, the relief claimed by the appellants was held
'+
c
to be rejected. In the result, the order of the Trial Court was set aside
and the appeal was allowed dismissing E.A. 556/70.
The learned Subordinate Judge has also expressed his opinion in
~
his judgment that in summary proceedings under Section 13B of the
Act, the plea of the appellants that the third respondent was a beD namidar of the fourth respondent cannot be allowed to be raised in the
light of Section 66 of th_e Civil Procedure Code.
On being dissatisfied with the judgment of the Subordinate
Judge, the appellants preferred E.S.A. No. 15/79. The respondents
filed their cross objections. Though the High Court admitted the ~
E appeal on being satisfied that the appeal involves as many as 11 substantial questions of law, it disposed the appeal on a short ground that the
documents and the evidence adduced by the respondents 1 and 2
(Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in question for
consideration and thi:> plea of benami put forth by the appellants has to .. A_, -
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be negatived. The contentions in the cross objections were that for
filing an application under Section 13(B)( 1) of the Act, a deposit of the
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purchase money together with the interest at the rate of 6 per cent per
annum in the court is a condition precedent and that the finding of the
lower Appellate Court that the earlier deposit made under Act 9 of
1967 was sufficient and the interest accrued till the date of the ExecuG
tion Application under Act 35 of 1969 would be directed .to be
deposited in case the appellants were found entitled to restoration of
~
possession of the property is erroneous. The High Court disposed the
contentions in the main appeal observing thus:
~
"It is not necessary for me to examine this question and
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finally adjudicate it, since I have upheld the decision of the
-..
OTHAYATH v. N.G. NAIR lPANDIAN, J.]
547
lower appellate Court on other grounds. I ortly indicate
that the respondents' counsel shought to sustain the conclusion of the lower appellate court on other grounds as well."
In the result, the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs.
So far as the cross-objections are concerned, the High C,ourt passed
..,,~the following order:
'
"There is no need to dispose of the cross-objections on the
¥
merits. It is ordered accordingly."
Hence the appellants by this appeal are impugning the judgment of the
High Court.
:.,,.~
Mr. K.K. Venugopal, Sr. Counsel appearing on behalf of the
appellants, Mr. T.S. Krishnamurthy Iyer, Sr. Counsel and Mr. P.S.
Poti, Sr. Counsel appearing on behalf of the first and second respondents respectively took us very meticulously and scrupulously through
the judgments of all the three courts and put forth the case of their
respective parties.
-"
Having heard the learned counsel on either side for a considerable length of time, we are clearly of the view on a conspectus of the
relevant Section 13(8) of the Act and on the factual matrix of the case
that the result of the case would depend upon the decision of two
substantial questions invloved, they being-
(1) Whether respondents 1 and 2 are bona fide purchasers of the
>--·
scheduled land in dispute for adequate consideration entitl-
....
ing to the benefit of the proviso to Section 13(8)(1)?
r
(2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(8) of the Act?
Before making a more detailed and searching analysis on different aspects of the case, it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Sec-
........ lion 13(8)(1) of the Act, on the pivotal of which both the quest10ns
revolve.
Section J3B: There is no requirement in any of the clauses
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548
SUPREME COURT REPORTS
I 1990] 2 S.C.R.
that an offer of readiness to comply with any order for ·
deposit of costs must be expressed in any judgment, decree
or order of court, where any holding has been sold in · ·~·
execution of any decree for arrears of rent, and the tenant
has been dispossessed of the holding after the 1st day of
April, 1964 and before the commencement of the Kerala
Land Reforms (Amendment) Act, 1969, such sale shall
stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions -~
of this Section;
Provided that nothing in this sub-Section shall apply in any
...,_
case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land
Reforms (Amendment) Bill, 1968 in the Gazette.
~
If the answer to the first question is in the affirmative, then there
is no need to consider the second question as it would be only
academic. We, therefore, shall now address ourselves in the first
instance whether the concurrent finding of facts by both the Appellate
Courts relating to the first question warrant interference.
Before the Trial Court whilst the appellants examined PWs 1 to 4 ~
and filed Exhibits Al to A22, the respondents examined RWs 1 to 4
and marked Exhibits B. l to B.58. Besides, Ex. X-1, X-2, X-3, X-5 and
X-6 and C. l to C.4 were also exhibited.
The Respondents 4 to 6 admittedly are brothers. ThoulUI at the
initial stage, Mr. Krishnamurthy Iyer did not accept the relationship·of
_.....
the third Respondent with Respondents 4 to 6 on the ground of lack of
evidence, subsequently no serious dispute was raised about the said ......
relationship. The Trial Court has proceeded on the ground that the
Respondents 3 to 6 are brothers being the sons of Kunhikannan in
whose favour the decree had been assigned. However, it is admitted
during the course of hearing of this appeal that the third Respondent is
not a direct brother of Respondents 4 to 6, but son of the step-mother
of Respondents 4 to 6. The second Respondent Ambrolil Ammalu is
admittedly the wife of the fourth Respondent Krishnan. The first
Respondent Govindan Nair is a stranger. The third Respondent, the
~_...
Court auction purchaser sold the property extending 4.35 acres in
favour of the first Respondent and the remaining half in favour of the
second Respondent under sale-deeds Exts. A.2 and A.3 dated
-·
OTHAYATH v. N.G. NAIR [PANOIAN, J.]
549
..
5 .12.1966. Consideration mentioned in each of the sale-<leeds Exts.
A.2 and A.3 is Rs.3,000. Out of Rs.3,000 shown as consideration for
A.2 a sum of Rs.2,500 is said to have been left with the first Respondent for payment of arrears of rent. In Ex. A.3, it is recited that the
third respondent is said to have already received Rs.2,000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting O.S. No. 6/66. The said sum of Rs.2,000 is
stated to have been adjusted towards the consideration under Ex. A3.
The first Respondent has produced a receipt (Ex. B28) showing
that out of the amount of Rs.2,500 left with him he had paid a sum of
A
B
Rs. 100. There is no other document evidencing the discharge of the
entire alleged arrears of rent oui.of Rs.2,400. When the third ResponC
dent was questioned about the promissory note on the strength of
which he is stated to have borrowed a sum of Rs.2,000, he has stated
that he had returned the promissory note. This evidence as rightly
pointed out by Mr. Venugopal is highly unacceptable because in usual
practice whenever a debt, borrowed on a promissory note is discharged that promissory note is returned to the borrower and never
D
left with the lender. Moreover, the evidence of the third Respondent is
contradicted by RW. 3, the son of the second Respondent. According
to RW. 3, when Ex. A.3 was executed, the promissory note was returned to the third Respondent. According to Mr. Venugopal, this
contradictory version betwixt the evidence of the first Respondent and
RW. 3 clearly shows that the recital regarding payment of consideraE
tion to the extent of Rs.2,000 in Ex. A.3 is not genuine and acceptable
and that Ex. A.3 is not fully supported by consideration. As per the
recitals of consideration under Exhibits A.2 and A.3 the total cash
consideration received by the third Respondent was only Rs.1,500 i.e.
Rs.500 from the first Respondent and Rs.1,000 from the second
Respondent. It is vehemently urged on behalf of the appellants that
F
the third Respondent after purchasing the property for Rs.815 in 1962
would not have parted with it after fighting several litigations for a
cash consideration of Rs .. 1,500 only. The evidence of the third
Respondent that he left a sum of Rs.2,500 with the first Respondent
for discharging arrears of rent and earlier received a sum of Rs.2,000
from the second Respondent on a promissory note is not credit worthy
G
in the absence of any supporting contemporary documentary evidence.
His assertion that he paid the amount for the Court auction purchase in
the year 1962 out of the money in his possession as well as from
borrowings shows that he was a man of slender means. When he was
confronted from whom he borrowed that amount, his answer was that
he did not remember from whom and how much he borrowed. The
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[1990) 2 S.C.R.
Trial Court has rightly pointed out in paragraph 19 of its Order that
the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present
property.
Mr. Venugopal drew out attention to another piece of evidence
of RW3, deposing that his father was never consulted with regard to
Ex. A3 and assailed his evidence as incredible and bereft of truthfulness
and trust worthiness. Coming to the sale-deed, Ex. A2 it is stated that
the first Respondent is residing about 11 miles away from Palayed
Amson where the property is situated. He has no other property in
Amson. The reason given by him for purchasing this property which
was already riddled with litigation is not at all convincing.
The first appellate Court while perfunctorily rejecting the
. reasoning of the Trial Court with regard to the consideration part of
A
Ex. A2 and A3 disposed of that contention in a summary manner
holding:
"The apparent inadequacy is no ground to think that there
is no consideration ..... I don't think that the recitals in
Exhibits A2 and A3 can be overlooked for this or the other
reasons stated by the learned Munsiff."
Then relying on Exhibits B 17, B28, B3 l, B41 and B45 and other ·
documents it concluded:
"that the Respondents 1 and 2 came int~ possession of the
properties and exercised their rights under Exhibits A2 and
A3 by payment of rent and revenue and payment of consideration spoken to by both the vendor and vendee and as
such they are bona fide purchasers for consideration."
The High Court accepting the reasons given by the sub-Judge
held thus:
"Most of these documents are public records or registers
kept in the respective village office and proceedings in
courts. There is no error of law in placing reliance on such
documents. The finding entered by the learned Suborc-""'
dinate Judge that respondents 5 and 6 are bona fide
purchasers for consideration is based on substantial evidence. It cannot be said to be arbitrary or unreasonable or
perverse."
-
OTHAYATH v. N.G. NAIR [PANDIAN, J.]
551
But both the Appellate Courts have conveniently ignored even
A
the relationship of the parties which assumes much importance and
---------
significance in evaluating the evidence in the light of the facts and
circumstances of the case for reaching a satisfactory conclusion and
seem to have summarily disposed of the case of the appellants.
The question is not the mere inadequacy of consideration as
B
pointed by the lower appellate Court, but lack of evidence in sub-
·« ..
/
stantiating the recitals of both the documents. The next contention
1
advanced by Mr. Venugopal is that though the High Court has
'
formulated as many as 11 substantial questions of law, it has not dealt
-V with any of them enumerated as (a) to (e) and examined the question
No. (f) in the proper perspective. Further the important question No. c
(g) reading "Is not the admitted fact that the 6th respondent is the wife
of the 2nd respondent prima facie proof that she is not a bona fide
...,--
purchaser for value" is not at all dealt with. It may be noted in this
connection that the 6th respondent and the 2nd respondent referred to
in that question are Ambrolil Ammalu (2nd respondent herein) and
Krishnan (4th respondent herein). As pointed out supra the High
D
Court itself has expressed that it was inclined to dispose of the appeal
'on a short ground'.
The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti
._
is that it is not open to the appellants to reagitate the matter and
request this Court to disturb the concurrent finding of facts arrived at
E
by both the appellate Courts which had rendered their findings on the
proper evaluation of the evidence and there can be no justification to
review or re-appreciate the evidence to take a contrary view in the
'-
absence of any contemporaneous document in support of the plea of
~
the appellants. In addition to the above, Mr. Poti urged that the appel-
!ants have not properly and satisfactorily discharged the onus of proof
F
~-
.cast upon them and the concurrent findings based on voluminous
documents, the copies of which are not annexed to the SLP for perusal
of this Court, do not call for interference.
In reply to the above arguments, Mr. Venugopal has pointed out
that none of the documents referred to in the judgments of the appelG
late Courts would either improve the case of the respondents or deny
the claims of the appellants. Of the documents relied upon by the
~'
appellate Courts, Ex. B17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book. Ex. B28 is a rent receipt
dated 23.2.1969 issued by the receiver appointed in O.S; 1/64 on the
r·
file of the Sub Court (lower appellate Court). B. 42 is a true extract
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SUPREME COURT REPORTS
I 1990] 2 S.C.R.
from the Foodgrains Cultivation Register and B .46 is a true extract
from the Peringathor Village Account. Ex.B.41 to B.45 are the levy
notices and revenue receipts for the years 1967, 1968. 1969 and 1973.
Exhibits B.55 to B.59 are copies of orders in M.C. No. 3/71. As rightly
pointed out by Mr. Venugopal, it is but natural that the receipt for the
payment of tax, rent receipt, revenue receipt etc., are in the names of
the persons in whose names the properties stand and therefore those
documents cannot by themselves dispel the claim of the appellants.
Besides, urging with all emphasis that Exhibi.ts A2 and A3 are only
sham and nominal documents, it has been incidentally urged by Mr.
Venugopal that the transaction under these two sale-deeds is benami
in nature. This argument was stoutly resisted by Mr. Krishnamurthy
Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in
favour of respondents 5 and 6 on the ground of fraud etc., the plea of
benami transaction cannot be countenanced. He also cited the decision in Mithilesh Kumari and Another v. Prem Behari Khare, [1989] 2
SCC 95. But Mr. Venugopal explained his argument that he has not
advanced that argument to set aside the sale-deeds on the ground of
benami transaction, but only for scrutinising the circumstances of the
transaction in examining the validity of the sale-deeds. However, as
the plea of benami transaction is not pressed into service, it need not
detain us any more.
We shall now examine whether this Court would be justified in
interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India. In a
recent decision in Dipak Banerjee v. Lilabati Chakraborty, [1987] 4
sec 161 it has been observed thus:
"That jurisdiction (under Article 136 of the Constitution of
India) has to be exercised sparingly. But, that cannot mean
that injustice must be perpetuated because it has been done
two or three times in a case. The burden of showing that a
concurrent decision of two or more courts or tribunals is
manifestly unjust lies on the appellant. But once that
burden is discharged, it is not only the right but the duty of
the Supreme Court to remedy the injustice."
No doubt, this discretionary power has to be exercised sparingly;
but when there are exceptional and special circumstances justifying the
exercise of the discretionary powers and where manifest injustice or
grave miscarriage of justice has resulted by overlooking or ignoring or
OTHAYATH v. N.G. NAIR [PANDIAN, L)
553
excluding material evidence resulting in unduly excessive hardships,
this Court will be justified in stepping in and interfering with the
_..._ . concurrent finding of facts in the interest of justice and it is also the
duty of this Court to remedy the injustice, so resulted. Vide Basudev
Hazra v. Meutiar Rahaman Manda!, [1971) 3 SCR 378 and Bhanu
Kumar Shastri v. Mohan Lal Sukhadia and Others, [ 1971] 1 SCC 370 at
pages 385 and 386.
_
The present case, in our view, suffers from the infirmity of
~
excluding, ignoring and overlooking the abundant materials and the
evidence, which if considered in the proper perspective would have led
.~ to a conclusion contrary to the one taken by both the appellate Courts.
•
The relationship of the parties inter se has been completely and conveniently ignored and excluded from consideration. In fact, the High
Court has not rendered any finding on question No. (g) which is one of
* ·
the eleven substantial questions of law formulated in paragraph 3 of its
judgment. The lack of evidence in support of the recital in regard to
the consideration is completely overlooked. Therefore, in view of the
above exceptional and special cirCUmstances appearing in this case, this
Court will not be justified in refusing to exercise its discretionary
powers merely on the ground that the conclusion of both the Courts is
concurrent.
•
For the discussions made above, we are of the view that the
~
conclusion arrived at by both the appellate Courts is only backed by
assertions rather than by acceptable reasoning based on the proper
evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of
the properties in dispute for consideration: On the other hand, we
hold that the evidence and circumstances of the case coupled with the
--~-evidence on record do establish that the respondents 1 and 2 are not
, bona fide purchasers for consideration.
")-
.
In the result, we hold that the respondents 1 and 2 are not
entitled to the benefit of the proviso to sub-Section (1) of Section
13(B) of the Act and answer the first question against the respondents
and in favour of the appellants.
We shall now pass on to the next question whether the appellants
~are entitled to the benefit of Section 13(B)(l) of the Act.
A
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The Kerala Land Reforms Act of 1963 came into force on
1.4.1964. Amended .Act 9 of 1967 was a temporary enactment which
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SUPREME COURT REPORTS
I 1990] 2 S.C.R.
remained in force till 31.12.1969. Thereafter, Act 35 of 1969 came into
force from, 1.1.1970 containing Section 13(B) which is substantially on
the same terms as Section 6 of Act 9 of 1967 with a proviso superadded. To invoke this benevolent provision, the satisfaction of two
primary conditions are sine qua non. Those conditions are:
(1) Any "holding" to which a tenant is entitled to restoration of
possession should have been sold in execution of any decree
for arrears of rent.
(2) The tenant should have been dispossessed of the "holding"
after the first day of April 1964 and before the commence- '!-
men! of the Kerala Land Reforms (Amendment) Act, 1969.
If these two essential conditions are fulfilled, then the sale in
execution of any decree for arrears of rent shall stand set aside
notwithstanding anything to the contrary contained in any law or in
~
any judgment, decree or order of court and the tenant shall be entitled
o to restoration of possession of such holding, but subject to the provisions of this Section 13B. The only bar for the restoration of possession
under this Section 13(B)(l) is the sale of the holding to a bona fide
purchaser for consideration after the date of such dispossession and
before the date of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette. For invoking the benefit of sub-Section
ii.
E ( 1) of section 13(B) the person entitled to r,estoration of possession of ""'7
his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the
purchase money together with interest at the rate of 6 percent per
annum in the court and apply to the court for setting aside the sale and
for restoration of possession of his holding. Once these legal forF malities are satisfactorily complied with then the Court by holding a
.I:.
summary enquiry shall set aside the sale and restore the applicant to
possession of his holding. The explanation to that section says that the -(
term 'holding' includes a part of holding. The expression "holding" is
defined in Section 2( 17) of the Act.
G
The language of Section 13(B) is plain, clear and unambiguous
representing the real intention of the legislature as reflected not only
from the clear words deployed but also from the very purpose of the
vesting of rights on the displaced tenants. To construe the provisions
of a statute especially of a benevolent provision like the one in ques-..-.f
tion, we have to take into consideration the dominant purpose of the
H statute, the intention of the legislature and the policy underlying. Vide
-Y
OTHAYATH v. N.G. NAIR IPANDIAN, J.]
555
P. Rami Reddy & Others v. State of Andhra Pradesh & Others, [1988] 3
SCC 433; Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan &
Others, [ 1987] 2 SCC 654 and M Is Doy pack Systems Pvt. Ltd. v.