Holding

An application filed within 60 days of the abatement can set aside the abatement, and a person who has remained in possession of land for over 20 years under a defective lease deed is deemed a tenant and his possession is protected under Section 7‑B of the Kerala Land Reforms Act.

Summary

The Supreme Court considered a review petition filed by the widow of the original petitioner who had died, seeking to set aside the abatement of the suit caused by the death. The Court examined whether the application to bring legal representatives on record, filed after the 90‑day period prescribed by Article 120 of the Limitation Act, 1963, resulted in abatement, and whether that abatement could be set aside by an application filed within 60 days as allowed by Article 121. It held that the abatement was valid but could be set aside because the application was filed within the statutory 60‑day window. The Court also addressed the respondent’s claim to possession of land under a lease deed that was later found defective, and applied Section 7‑B of the Kerala Land Reforms Act, 1964 (Amendment 1969) to deem the respondent a tenant entitled to occupancy rights despite the defect. Consequently, the petition to set aside the abatement was allowed, while the respondent’s possession was upheld under the land‑reforms provision.

Issues considered

Whether the death of the original petitioner caused abatement of the suit under Article 120 of the Limitation Act, 1963 when the application to bring legal representatives was filed after 90 days.
Whether the abatement can be set aside by filing an application within 60 days under Article 121 of the Limitation Act, 1963.
Whether a person in possession of land for over 20 years under a defective lease deed is deemed a tenant and protected by Section 7‑B of the Kerala Land Reforms Act, 1964 (Amendment 1969).

Legislation cited

Limitation Act, 1963s. Article 120 (Schedule), s. Article 121 (Schedule)

Subjects

defective lease deedoccupancy rightsection 7-BKerala Land Reforms ActLimitation Actabatementset aside abatementreview petitionspecial leave petitiontenant protectionland reforms

Judgment

A PUTHIYA PURAYIL KANNAN'S WIDOW KOZIPURATH
CHEMMARATHI BY L.R. KOZHIPURATHU KANARAN
v.
PATINHARE KOYYATTAN BALAN AND ORS.

MARCH 21, 1997
B
[K. RAMASWAMY AND K.T. THOMAS, JJ.]

Kera la Land Refomzs Act, 1964 :

C S.7-B-Defective lease deed-Tenant in possession of land on basis of
lease deed, over 20 year~~Held, though there is defect in confennent of right
to possession under the registered lease deed, the tenant having remained in
possession is entitled to occupancy right-High Co wt has found as a fact that
the respondellt having come into lawful possession of the land by virtue of
defective lease deed his possession is protected u/S. 7-~There is no merit in
D the case wan·anting inteiference.

Limitation Act, 1963 :

Articles 120 and 121 to the Schedul~Application for setting aside
abatement-Limitation-Held, application is required to be filed within 60
E days from date of abatement-Though the action had abated, but since the
application was filed within 60 days from the date of abatement and for the
reasons stated in the application, the abatement stands set asid~Application
allowed.

p CIVIL APPELLATE JURISDICTION: Review Petition No. 198 of
1996.

In

Special Leave Petition (C) No. 17908 of 1993.
G
From the Judgment and Order dated 29.8.90 of the Kerala High
Court in C.R.P. No. 1171 of 1975. I
T.T. Kunhikannan for the Petitioner.

H K.M.K. Nair for the Respondents.
330
PUlliIYA PURA YIL KANNAN·s WIDOW KOZIPURA11l CHEMMARATHI '- P.K. BALAN 331

The following Order of the Court was delivered : A

This Court by order dated November 16, 1995 dismissed the special
leave petition on the ground that the original petitioner had died on
September 1, 1993 and the application to bring the legal representatives on
record was iiled on January 27, 1994 and, therefore, the application stood B
abated. It is not in dispute that the original petitioner died on September
l, 1993. By operation of Article 120 of the Schedule to the Limitation Act,
1963, the application lo bring on record the legal representatives of the
deceased plaintiff or defendant, should be filed within 90 days from the
date of the death of the plaintiff/defendant. If the application is not filed
within the date, the abatement takes place. As contemplated in Article C
121 of the Schedule which envisages that for seeking an order to set aside
the abatement, the application need to be filed within 60 days from the
date of the abatement. In this case, since the original petitioner died on
September 1, 1993, the application was required to be filed within 90 days
from that date which, no doubt, was not filed. So, abatement took place. D
Thereafter, the application to set aside the abatement was filed on
January 27, 1994 which is within 60 days. Though at that stage the action
had abated, for the reasons stated in the application, the abatement Mands
set aside. The petition for setting aside the abatement is accordingly
allowed.
E
We have heard the case on merits. The case of the respondent is that
he has come into possession by virtue of lease granted by the landlord and
he has been in possession for well over 20 year. In paragraph 7 of the
Judgment of the Division Bench of the High Court dated August 29, 1990
made in CRP No. 4171/75, it has pointed out that the respondent came F
into lawful possession of the property under a lease deed though the same
was found to be defective. Section 7-B of the Kerala Land Reforms Act
postulates Thus :

"Notwithstanding anything to the contrary contained in any law or
in any contrary, contract, custom or usage, or in any judgment, G
\ decree or order of Court, any person in occupation of the land of
another at the commencement of the Kerala Land Reforms
(Amendment) Act, 1969 on the basis of a registered dead purport-
ing to be a lease deed shall be deemed to be a tenant if he or his
predecessor-in-interest was in occupation of such land on the 11th H
332 SUPREME COURT REPORTS [1997) 3 S.C.R.

A day of April, 1957 on the basis of that deed, notwithstanding the
fact that the lease was granted by a person who had no right over
the land or who was no competent to lease the land."

A reading thereof clearly envisages that notwithstanding anything to
the contrary contained in any law or in any contract, custom or usage, or
B in any judgment, decree or order of the Court, any person in occupation
of the land .... on the basis of a registered deed purporting to be a lease
deed, shall be deemed to be a tenant if he or his predecessor-in-interest
was in occupation of such land on the 11th day of April, 1957 on the basis
of that deed, notwithstanding the fact that the lease was granted by the
C person who had no title over the land or who was not competent to lease
the land. Thus, it would be seen that, though there is a defect in the
conferment of right to possession under the registered lease deed and in

D
such a defect a person who remained in lawful possession is entitled to
occupancy right, the High Court has found, as a fact, that the respondent
having come into lawful possession of the land by virtue of defective lease
deed his possession is protected under Section 7-B of the Kerala Land
Reforms Act. Therefore, we do not find any merit warranting interference.
I
:~

The special leave petition is accordingly dismissed. The Review
Petition is allowed accordingly.

R.P. Petition dismissed.