Pillai Padmanabha Pillai Vs. Arulappan Nadar Yovan Nadar & Ors  INSC 462
(4 September 1998)
Thomas, M. Srinivasan Srinivasan. J.
only question which arises for consideration in this appeal is whether the
respondents can be deemed to be tenants within the meaning of Section 4A of the
Kerala Land Reforms Act 1 of 1964 (for short, 'the Act') as amended by Act 35
appellant's predecessor executed a usufructuary mortgage in favour of the
respondents in the year 1094 M.E. corresponding to 1919. In the year 1119 ME
(1944) a document was executed in which it was recited that the mortgage amount
had been received by the mortgagees and the land was surrendered to the
mortgagor. Simultaneously another document was executed by the same mortgagor
to the same mortgagees. In the year 1122 ME (1947) a further mortgage was given
by the mortgagor to the mortgagees for a larger amount inclusive of the amount
of the earlier mortgage.
30.1.1974 the appellant filed a suit for redemption of the mortgage of the year
1122 ME (1947). The suit was resisted by the respondents on several grounds,
chief among them being that they had become tenants entitled to fixity of
tenure by virtue of Section 4A of the Act. The trial Court rejected the
contentions of the respondents and passed a decree for redemption in favour of
appeal by defendants 3,4,5,6, and 8 the Principal Subordinate Judge, Trivandrum held that the defendants had been
holding the land continuously for more than 50 years prior to the relevant date
i.e. 1.1.1970 and consequently the relief of redemption could not be granted to
the plaintiff. Thus the appeal was allowed and the suit was dismissed. The
appellant approached the High Court of Kerala with a second appeal which ended
in dismissal on 28.11.85.
the appellant is before us.
to the appellant the recitals of Ex.A-3 by which the first mortgage of 1094 ME
was discharged prove that possession was handed over to the mortgagor and when
a fresh mortgage was executed by the mortgagor to the mortgagee, there was a
break in the continuity of possession and therefore the period of 50 years
mentioned in the Section should be calculated from 4.8.1119 ME, the date on
which the earlier mortgage was terminated and the later mortgage was executed.
relevant part of the Section in the Act reads as follows :
4A: Certain mortgagees and lessees of mortgagees to be deemed tenants :-
Notwithstanding anything to the contrary contained in ant 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
lessee of a mortgagee of cardamom, or the lessee of a mortgagee of such land
shall be deemed to be a tenant if :
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 ...."
Section requires only the holding of the land comprised in the mortgage for a
continuous period of not less than fifty years by the mortgagee or lessee. The
Section does not insist upon there being only one mortgage throughout the
period of fifty years. The language of the Section is wide enough to show that
there can be more than one mortgage but the mortgagee shall hold the land
comprised in the mortgages continuously for a period of not less than fifty
Principal Subordinate Judge, Trivandrum has
found as a fact that possession did not pass no to the mortgagor on the date of
Ex.A-3. The relevant passage in his judgment is as follows :
is true that Ex. A-3 has been got executed purporting to release the mortgage
evidenced by A-2 on payment of the mortgage amount and value of improvements.
But Ex.B-2 would show that in fact no payment of mortgage amount adjustment of
the consideration of A-2 mortgage for B-2 otti. It is seen that the executants
of A-3 are the ottidars under B-2, A-3 and A-2 have been executed by one after
the other on the same day.
the statement in A-3 regarding surrender of possession there is no evidence of
actual possession and it is not probable to think there had been in fact a
factual surrender of possession under A-3 as per B-2. Under Ex.B-2 the owner is
purported to receive a slightly larger consideration than under A-2 otti.
the circumstances despite A-3 the appellant's predecessor should have been
found to continue in otti sought to be redeemed is one evidenced by A-1 which
is of the year 1122. It is clear from A-1 that possession was not given under
that otti but it is directed therein that the ottidars are to continue in
possession granted under B-2." 9.That finding was accepted by the High
Court in second appeal and confirmed. We do not find any error whatever in the
view taken by the Principal Subordinate Judge and affirmed by the High Court.
Hence there is no merit in this appeal and it is hearby dismissed. There will
be no order as to costs.