Mancheri
Puthusseri Ahmed & Ors Vs. Kuthiravattam Estate Receiver [1996] INSC 1112 (11 September 1996)
Majmudar
S.B. (J) Majmudar S.B. (J) Singh N.P. (J) S.B. Majmudar, J.
CITATION:
JT 1996 (8) 107
ACT:
HEAD NOTE:
Both
these appeals by special leave challenge judgment of the High Court of Kerala
at Ernakulam rendered in two Revision Applications moved by two different sets
of defendants/judgment-debtors who were parties to Original Civil Suit No.22 of
1946 of the Sub Court, Manjeri and who were sought to be evicted from the suit
property by the decree-holder in one and the same Execution Petition No.543 of
1962. Two separate Revision Applications came to be filed in the High Court
raising identical contentions by these two sats of contesting defendants because
they had lost in two separate appeals filed by them against the Executing Court's order before the Sub-Court at Manjeri.
In both these revision applications the appellants raised identical contentions
which were repelled by the High Court and that is how they are before this
Court in these two appeals. As identical question arises for our consideration
the appeals were heard together and are being disposed of by this common
judgment.
A
short point arises for our consideration in these appeals. The appellants
contend that they are entitled to the benefit of Section 4A of the Kerala Land
Reforms Act, Act I of 1964 as amended by Act 35 of 1969 (hereinafter referred
to as 'the Act'). The said provision seeks to confer the status of deemed
tenancy on mortgagees in possession under circumstances mentioned in the said
Section. The appellants who were erstwhile mortgagees in possession of the suit
land contend that despite the decree for redemption passed by the Civil Court had become final against them, even
during execution proceedings they are entitled to get the benefit of Section 4A
of the Act.
Therefore,
their possession should not be disturbed. The Executing Court as well as the Appellate Court and also the Revisional Court have negatived this common contention.
In
order to appreciate the grievance of the appellants/judgment-debtors centering
round the aforesaid provision a few relevant facts may be noted at the outset.
The
suit land was mortgaged by predecessor-in-interest of the respondent
decree-holder with the predecessor-in- interest of the appellants. The
predecessor-in-interest of the respondent filed Original Suit No.212 of 1946 in
the Munsif's Court at Manjeri for redemption of the suit usefructuary mortgage
in favour of the appellants and other defendants. In all there were 83
defendants who represented the mortgagees in possession. Various defences
raised by the defendants were negatived and ultimately the Trial Court decreed
the suit except as regards a part of the property in possession of 81st defendant.
The dissatisfied plaintiff filed an appeal being A.S. No.164 of 1989 before the
Appellate Court against the 81st defendant against whom the suit was dismissed
by the Trial Court. The remaining 82 defendants do not appear to have
challenged the said decree of the Trial Court against them. The Appellate Court
by its order dated 12th
March 1956 allowed the
appeal of the plaintiff against 81st defendant and held that property held by
81st defendant was also included in the mortgage deed Ext.A1 dated 15.12.1896.
81st defendant carried the matter in Civil Appeal before the High Court being
Second Appeal 163 of 1956 which also came to be dismissed on 10th June 1960. Thus by that date the decree for
redemption of the suit mortgage against all the 83 defendants became final,
Thereafter the respondent plaintiff-mortgagor filed Execution Petition No.543
of 1962 for recovery of possession of the property from the respective judgment
debtors. During the pendency of the execution proceedings Kerala Land Reforms Act
came into force from 1st
April 1964. The Act
created certain deemed tenancies and granted fixity of tenure to those deemed
tenants. This Act was amended by Act 35 of 1969 by Which Section 4A, with which
we are concerned, was brought on the Statute Book with effect from 1.1.1970.
The
appellants contended before the Executing Court that they were entitled to the benefit of Section 4A and,
therefore, they could not be evicted from the suit property in their possession
as they had become deemed tenants of the lands occupied by them. The Executing
Court, as noted above, rejected these contentions and that decision which has
been upheld by Appellate Court and the Revisional Court is the subject-matter
of challenge before us, Section 4A on which strong reliance is placed by
learned senior counsel for appellants] reads as under :
"4A.
Certain mortgagees and lessees of mortgagees to be deemed tenants :-
1.
Notwithstanding anything to the contrary contained in any law or in any
contract, custom or usage, or in any judgment, decree or order of court, a
mortgagee with possession of land, other than land principally planted with
rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land
shall be deemed to be tenant if- (a) the mortgagee or lessee was holding the
land comprised in the mortgage for a continuous period of not less than fifty
years immediately preceding the commencement of the kerala Land Reforms
(Amendment) Act, 1969; or (b) the mortgagee or lessee has constructed a
building for his own residence in the land comprised in the mortgage and he was
occupying such building for such purpose for a continuous period of not less
than twenty years immediately preceding such commencement;
Provided
that a mortgagee or lessee falling under this clause shall not be deened to be
a tenant if he, or, where he is a member of family, such family was holding any
other land exceeding two acres in extent on the date of publication of the Kerala
Land Reforms (Amendment) Bill, 1968, in the Gazette; or (c) the land comprised
in the mortgage was waste land at the time of mortgage or land to which the
Madras Preservation of Private Forests Act 1949, would have applied if that Act
had been in force at the time of mortgage, and (i) the mortgagee or lessee was
holding such land for a continuous period of not less than thirty years
immediately preceding the commencement of the Kerala Land Reforms (Amendment)
Act, 1969; and (ii) the mortgagee or lessee has effected substantial
improvements on such land before such commencement.
Explanation I.- For the purposes of this
sub-section, in computing the period of continuous possession or occupation by
a lessee, the period during which the mortgagee was in possession or
occupation, as the case may be shall alsobe taken into account.
Explanation
II.- In computing
the period of fifty years referred to in clause (a) or the period of thirty
years referred to in clause (c), the period during which the
predecessor-in-interest or predecessors-in-interest of the mortgagee or lessee
was or were holding the property shall also be taken into account.
Explanation
III.- For the
purposes of clause (b),- (1) "mortgagee" or "lessee" shall
include a predecessor-in-interest of the mortgagee or lessee, as the case may
be:
(11)
"building" includes a hut, Explanation IV. - In computing the period
of twenty years referred to in clause (b), occupation of the building by any
member of the family of the mortgagee or lessee for residential purpose shall
be deemed to be occupation by the mortgagee or lessee, as the case may be, for
such purpose.
Explanation
V.- In calculating
the extent of land held by a family for the purposes of clause (b), all the
lands held individually by the members of the family or jointly by some or all
of the members of such family shall be deemed to be held by the family,
Explanation VI - for the purposes of sub-clause (ii) of clause (c), (i)
Improvements made by the mortgagee shall be deemed to be lmprovements madeby
the lessee;
(ii)
"mortgagee" or "lessee" shall lnclude a predecessor-in-interest
of the mortgagee or lessee, as the case may be Explanation VII, - for the
purposes of clause (c)- (i) improvements shall be deemed to be substantial
improvements if the value thereof on the date of commencement of the Kerala
Land Reforms (Amendment) Act 1969, is not less than twenty five per cent of the
market value of the land on that date;
(ii) a
land shall be deemed to be waste land notwithstanding the existence of
scattered trees thereon.
(2) Nothing
contained in sub- section (1) shall apply to a lessee if the lease was granted
on or after the commencement of Act." A mere look at the said provision
shows that the said Section will operate notwithsfanding any judgment, decree
or order of any court against the concerned morgtagee in possession if the
following conditions are satisfied :
1. He
must be a mortgagee in possession of the land on the date of the coming into
force of that Section which is not retrospective in nature meaning thereby the
person who wants the benefit of Section 4A must be a mortgagee in possession of
land on 1.1.1970. As we are not concerned with other types of excluded lands we
need not refer to them.
2.
Such a morgtagee in possession on 1.1.1970 must satisfy the further condition
that he was holding the land comprised in the mortgage for a continuous period
in the period of not less than fifty years immediately preceding the
commencement of the Kerala Land Reforms (Amendment) Act, 1969 meaning thereby
for a period of not less than fifty years immediately before 1.1.1970. As we
are not concerned with clause (b) and (c) in the present proceedings we need
not dilate thereon.
When
we turn to the facts of the present cases. it becomes clear that none of the
aforesaid two conditions has been satisfied by the appellants. It is true that
the appellants were mortgagees in possession through their
predecessor-in-interest since 15.12.1896 and can get benefit of Explanation II
and, therefore, years back they had completed more than fifty years of
possession as mortgagees.
It is
also true that decree for redemption of the suit mortgage against them had
become final and during execution proceedings Section 4A had come into force.
However there is a further fact which stares in the face of the appellants.
In the
execution proceedings themselves the respondent decreeholder mortgagor
deposited the mortgage amount and value of improvements on 14th March 1969 and consequently the Executing Court ordered delivery of property on
such payment to the decree-holder. Once that happened the status of the
appellants as erstwhile mortgagees in possession underwent a metamorphosis and
thereafter they continued to remain in possession only as judgment debtors
illegally sticking to the land. The relationship of mortgagor and mortgagee
between the parties got snapped. It is now well settled that despite the decree
for redemption which might have been passed by a competent court and which
might have become final till the mortgage amount is deposited by the mortgagor
the relationship of mortgagor and mortgagee does not come to an end. Conversely
once the amount is deposited by the mortgagor decree-holder even during the
execution proceedings the relationship between the parties as mortgagor and
mortgagee ceases and thereafter till actual delivery of possession the
erstwhile mortgagee in possession remains merely as judgmentdebtor in illegal
possession.
In the
case of Prithi Nath Singh and ors. v. Suraj Ahir and ors. AIR 1963 SC 1041 it
has been held by Raghubar Dayal, J., speaking for the two member Bench of this Court
that when the mortgage money is paid by the mortgagor to the mortgagee, there
does not remain any debt due from the mortgagor to the mortgagee, and
therefore, the mortgage can no longer continue after the mortgage money has
been paid.
Further,
the definition of usufructuary mortgage itself leads to the conclusion that the
authority given to the mortgagee to remain in possession of the mortgaged
property ceases when the mortgage money has been paid up. When the mortgage
money has been paid up, no question of appropriating the rents and profits
accruing from the property towards interest or mortgage money can arise. If the
mortgage money has been received by the mortgagee and thereafter he refuses to
perform the acts which he is bound to do under 5.60, the mortgagor can enforce
his right to get back the mortgage document, the possession of the mortgaged
property and the reconveyance of that property through court.
The
same view was reiterated by a later decision of this Court in the case of Parameswaran
Govindan v. Krishnan Bhaskaran & Ors. 1993 Supp.(1) SCC 572. K. Ramaswamy,
J., speaking for the two member Bench of this Court while considering the scope
and ambit of Section 4A of this very Act held that from the date of deposit of
the decretal amount the possession of the morgtagee respondent would be
unlawful. Section 4-A of the Land Reforms Act would not denude the right to
re-possession of the mortgagor under Section 60 of the Transfer of Property Act
without assent of the President of lndia. Section 4-A of the Land Reforms Act
which engrafts a non-obstante clause is of little assistance to the respondent,
as he did not complete 50 years of continuous possession on the date when the
Amending Act 35 of 1969 came into force. It was further observed that a
conjoint reading of Section 60, Section 76(h) read with Section 83 of Transfer
of Property Act would amplify that on deposit of the mortgage amount, the
contractual relationship of mortgagor and mortgagee ceases. There does not
remain any debt from the mortgagor to the mortgagee and, therefore, the
mortgage can no longer continue after the mortgage money is paid. On the
payment of mortgage money or deposit thereof in the court by the mortgagor, the
mortgage comes to an end and the right of the mortgagee to remain in possession
is also coterminous. Thereafter, the mortgagee continues in unlawful
possession.
In
view of this settled legal position, therefore it must be held that the
appellants' status as mortgagees in possession came to an end on 14th march 1969
when the mortgage money was deposited by the respondent decree-holder in
execution proceedings. Thereafter appellants' possession became unlawful and
they were liable to be forthwith evicted in execution of the decree for
redemption which become final. Consequently it must be held that the very first
condition for applicability of Section 4A of the Act was not satisfied by the
appellants. To recapitulate the first condition for applicability of Section 4A
is that the concerned person who seeks the benefit of Section 4A for getting
status of deemed tenant must be in possession of the concerned land as a
mortgagee on 1.1,1970 when Section 4A came into force. Almost 9 months prior to
1.1,1970 the appellants had ceased to be mortgagees in possession and were only
in unlawful possession of the decretal land. Thus the very first condition for
applicability of Section 4A was not fulfilled by the appellants. Once this
first condition was not satisfied, Section 4A went out of picture for the
appellants. Even that apart the second condition was also not satisfied for
applicability of Section 4A in their favour. They cannot get the benefit of
Section 4A unless even the second condition is satisfied namely that they must
be in continuous possession as mortgagees in possession for 50 years and more,
immediately preceding the commencement of Section 4A meaning thereby that prior
to 1.1.1970 for continuous 50 years backwards without a break they must have
continued to remain in possession as mortgagees in possession. The words '50
years immediately preceding the commencement of the Amendment Act at 1969' are
very significant. In order that continuous period of fifty years can start
immediately preceding the coming into force of Section 4A it must start from a
day earlier, i.e., from 31st December 1969 backwards upto a period of fifty
years meaning thereby stretching back till 31st December 1919.
Thus
even though the mortgagee in possession may be holding the possession of the
land as mortgagee on 1.1.1970 he must further show that he had remained as a
mortgagee in possession by himself or through his predecessor in interest
continuously at least from 31st December 1919 till 31st December 1969 without
any break. On the facts of the present case it cannot be disputed and it is not
in dispute that the aapellants were not in possession as mortgagees in
possession for this whole period but their status as mortgagees in possession
had come to an end and the relationship of mortgagor and mortgagee had got
snapped between the parties from 14th March 1969 onwards. Thus for a period of
almost 9 months prior to 1.1.1970 the appellants were not in possession as
mortgagees. On the contrary from 14th March 1969 onwards their possession of the suit land was unlawful.
Thus even the second condition is not satisfied for applicability of Section
4A.
Having
realised this difficulty in the way of the appellants learned senior counsel
for the appellants submitted that there is a non-obstante clause for
applicability of Section 4A and consequently despite there being a judgment,
decree or order against them which has become final they are entitled to get
the benefit of this Section. We fail to appreciate how the said non-obstante
clause can be of any assistance to the appellants on the facts of the present
cases. All that the non-obstante clause means to convey is to the effect that
even though a mortgagee in possession might have suffered a judgment or decree
against him which might have become final so long as his status as mortgagee in
possession has survived even pending execution proceedings and by that time if
on 1.1.1970 the Section gets attracted then such a mortgagee in possession even
though having an adverse judgment or decree against him can get the benefit of
Section 4A if the relevant conditions of said Section are fulfilled by him and
in such an eventuality merely because such a mortgagee in possession is covered
by the sweep of any final judgment or decree for redemption the same will not
come in his way. On the facts of the present cases, however, as we have seen,
not only the appellants were covered by a final decree for redemption but they
had lost the status of mortgagees in possession almost 9 months prior to the
coming into force of Section 4A. Therefore, on the date on which the Section
operated they were no longer mortgagees in possession.
Consequently
the non-obstante clause which would have otherwise helped them if they had
continued as mortgagees in possession on 1.1.1970 does not avail the appellants
on the facts of the present cases. The learned senior counsel for the
appellants next contended that in any case the appellants had remained in
possession as mortgagees by themselves and through their predecessors for more
than fifty years, that the mortgage was of 1896 and even by the date the suit
was filed, fifty years' period was over. That may be so. However the
requirement of the second condition, as we have shown earlier, is that such a
mortgagee in possession who wants to avail of the benefit of Section 4A must
show that he continued in possession as mortgagee for fifty years or more
continuously at least from 31.12.1919 upto 31.12.1969 which was immediately
preceding the commencement of Section 4A with effect from 1.1.1970.
Learned
senior counsel in this connection submitted that words 'immediately preceding
the commencement' may be given more expanded meaning as this is a beneficial
provision. It is difficult to agree. In the first place the Section creates a
legal fiction. Therefore, the express words of the Section have to be given
their full meaning and play in order to find out whether the legal fiction
contemplated by this express provision of the Statute has arisen or not in the
facts of the case; Rule of construction of provisions creating legal fictions
is well settled. In interpreting a provision creating a legal fiction the Court
is to ascertain for what purpose the fiction is created, and after ascertaining
this, the Court is to assume all those facts and consequences which are
incidental or inevitable corollaries to the giving effect to the fiction. But
in so construing the fiction it is not to be extended beyond the purpose for
which it is created or beyond the language of the section by which it is
created. It cannot also be extended by importing another fiction. In this
connection we may profitably refer to two decisions of this Court. In the case
of Commissioner of Income Tax, Bombay City II v. Shakunatala & AIR 1966 SC
719 a three-Judge Bench of this Court speaking through S.K. Das,J., made the
following pertinent observation in paragraph 8 of the Report :
"The
question here is one of interpretation only and that interpretation must be
based on the terms of the section. The fiction enacted by the Legislature must
be restricted by theplain terms of the statute." In another case reported
in the same volume at page 870, namely, Commissioner of Income-tax (Central),
Calcutta v, Moon Mills Ltd. AIR 1966 SC 870 another three- Judge Bench of this
Court speaking through Subha Rao,J., observed in para 8 of the Report in connection
with the provision creating such legal fictions as under :
"The
fiction is an indivisible one.
It
cannot be enlarged by importing another fiction.. " In the present cases
fiction created by Section 4A is circumscribed by its express words. Before such
a deemed tenancy can arise it must be shown by the concerned beneficiary of the
said provision that he was a mortgagee in possession for a continuous period of
not less than fifty years immediately preceding the commencement of the said
Section. The words 'immediately preceding the commencement' must necessarily be
given their ordinary and full meaning.
They
necessarily point out the legislative intent that the fiction is created only
for covering such type of cases where the mortgagee in possession not only
exists on the land as mortgagee on 1.1.1970 but, also continuously existed as
such for a period backward stretching upto at least 50 years in past from
31.12.1969 which was the day immediately preceding such commencement Argument
of learned senior counsel was that if the words '50 years of continuous
possession as mortgagee at any time prior to the coming into force of the
amending Act' are read in the Section by implication he would qualify for the
benefit of Section 4A, Such a contention would have stood the test if the
Section would have been worded differently namely, as follows :
"such
mortgagee was in continuous possession for a period of not less than 50 years
prior to the coming into force of the Amending Act." Such words are not
found in the Section. In fact learned senior counsel for the appellants wants
us to read the Section after omitting the word 'immediately ', advisedly
prefixed by the legislature to the word 'preceding'. Such an exercise is not
permissible for the Court, We have to keep in view that as per the Section the
50 years' period is circumscribed by further requirement that such continuous
period of occupation as mortgagee in possession must exist without break or any
hiatus till the date of coming into force of the Act and must consist of at
least 50 years continuous occupation immediately prior to the coming into force
of Section 4A, as such mortgagee in possession. However beneficial may be the
scope and ambit of the legal fiction created by the legislature while enacting
Section 4A such fiction can arise only when the express language of the Section
laying down the conditions precedent for raising of such a fiction is complied
with by the concerned mortgagee in possession seeking the benefit of such a
deeming fiction. Such a fiction cannot be extended by the Court on analogy or
by addition or deleting words not contemplated by the legislature.
As a
result of the aforesaid discussion it must, therefore be held that the
appellants have failed to fulfil both the conditions precedent for
applicability of Section 4A and for getting the benefit of deemed fiction
arising therefrom. Consequently the High Court as well as the courts below were
perfectly justified in not extending the benefit of Section 4A to the
appellants. In the result these appellants, fail and are dismissed. On the
facts and circumstances of the cases there will be no order as to costs.
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