Mathevan Pillai Padmanabha Pillai Vs. Arulappan Nadar Yovan Nadar & Ors [1998] INSC 462 (4 September 1998)

K.T. Thomas, M. Srinivasan Srinivasan. J.

ACT:

HEAD NOTE:

The 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 of 1969.

2.The 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.

3.On 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 the appellant.

4.On 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.

Hence, the appellant is before us.

5.According 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.

6.The relevant part of the Section in the Act reads as follows :

"Section 4A: Certain mortgagees and lessees of mortgagees to be deemed tenants :-

(1) 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 :

(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 ...."

7.The 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 years.

8.The 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 :

"It 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.

Excepting 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.

Under 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.

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