IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 OP(C).No. 2742 of 2011(O) ------------------------- AGAINST THE ORDER DATED 08/08/2011 IN EA.82/2011,EP.139/2008 IN OS.67/1980 of M.C.,PARAPPANANGADI .................... PETITIONER(S): ----------------------- 1. BALAKRISHNAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK,MALAPPURAM DISTRICT. 2. RAMANI,D/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 3. GANESAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4. MANIKANDAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 5. BHAVANI,D/O.KIZHAKKEPURAKKL KARAPPAN @ APPPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 6. VISWAN,S/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 7. PRAMEELA,D/O.KIZHAKKEPURAKKAL KARAPPAN @ APPUNNI,NEDUVA AMSOM DESOM,TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA AV OPC.NO.2742/2011 RESPONDENT(S): ------------------------ PALAKKAL DEVAKI AMMA,D/O.PARVATHY AMMA, CHEVAYUR AMSOM DESOM,KOZHIKODE DISTRICT, PIN-673017. BY ADVS. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH CRP NO. 248 OF 2011 CRP NO. 249 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV OPC.NO.2742/2011 APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF PARAPPANANGADI IN I.A.NO.2085/1992 IN O.S.NO.67/1980 ON ITS FILE DATED 13.12.2002. P2 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.15069/2003 DATED 15.05.2003. P3 : COPY OF THE JUDGMENT OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR IN A.S.NO.50/2003 DATED 07.02.2008. P4 : COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF PARAPPANANGADI IN E.A.NO.82/2011 IN E.P.NO.139/2008 IN O.S.NO.67/1980 DATED 08.08.2011. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2742 of 2011 & C.R.P.Nos.248 & 249 of 2011 -------------------------------------- Dated this the 11th day of November, 2011. JUDGMENT The question arising for a decision in this Original Petition and Civil Revisions is whether a mortgagee having raised a plea of fixity of tenure under Sec.13 of the Kerala Land Reforms Act (for short, “the Act”) in a suit for redemption of mortgage and invited an adverse decision on that plea, he or his legal representatives could, in the execution proceeding claim protection of deemed kudikidappu under Explanation IV to Sec.2(25), of the said Act in view of the decision in Victoria v. K.V.Naik and others ((1997) 6 SCC 23)? The facts of the case are thus: 2. Respondent created a mortgage in favour of one Karuppan @ Appunni in the year, 1951 and filed O.S.No.67 of 1980 for redemption of mortgage. Karuppan @ Appunni, 1st defendant in the suit while resisting the suit on various grounds contended that the transaction is not a mortgage, it is a lease, that he is entitled to fixity of tenure under Sec.13 of the Act as he is a cultivating tenant and hence the suit is liable to be dismissed. The claim of Karuppan @ Appunni regarding fixity of tenure was referred to the Land Tribunal (for short, “the Tribunal”) for a decision under Sec.125(3) of the Act. The Tribunal OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 2 answered the reference in the affirmative. Learned Munsiff, acting upon that finding dismissed the suit. The first appellate court confirmed that dismissal. Respondent took up the matter in Second Appeal (S.A.No.787 of 1988). This Court, by judgment dated 12.03.1992 reversing the judgment and decree of the first appellate and trial courts and finding of the Tribunal held that transaction is a mortgage and that the respondent is entitled to get it redeemed. A preliminary decree was granted in favour of the respondent for redemption of mortgage. Respondent filed I.A.No.2085 of 1992 for passing final decree in the case. Karuppan @ Appunni died on 06.09.1992 and his legal representatives (petitioners) were brought on record. Petitioners claimed in the final decree proceeding that they are entitled to get value of improvements. The court found that since Karuppan @ Appunni has been found to be a mortgagee, petitioners are not entitled to claim value of improvements (as if they are tenants of the property). I.A.No.2085 of 1992 was allowed and a final decree was passed. Petitioners challenged that final decree in A.S.No.50 of 2003 before learned Sub Judge, Tirur. In A.S.No.50 of 2003, petitioners filed I.A.No.2021 of 2007 claiming that they are entitled to kudikidappu in view of Explanation IV to Sec.2 (25) of the Act and requesting to refer that question to the Tribunal under Sec.125(3) of the Act. That application was dismissed by order dated 16.11.2007. Petitioners challenged that order in W.P.(C) No.34914 of 2207. This Court, by judgment dated 28.11.2007 directed the learned Sub Judge to hear the appeal taking into consideration all contentions including plea of OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 3 petitioners for kudikidappu and the contention of respondent that the said plea is barred by res judicata. Petitioners filed I.A.No.2500 of 2007 to include an additional ground in A.S.No.50 of 2003 (in challenge of the final decree) that they are entitled to the protection of kudikidappu after redemption of mortgage. 3. In the meantime, respondent filed execution petition in the trial court to execute the final decree and as petitioners contend, the executing court ordered delivery without notice to them. Petitioners filed O.P.No.15069 of 2003. This Court by Ext.P2, judgment dated 15.05.2003 (produced in O.P.No.2742 of 2011) allowed the respondent to take delivery of the suit property except the two houses situated therein (in respect of which petitioners claimed kudikidappu). Petitioners contended that of the said two houses, one was constructed by karuppan @ Appunni while the other was constructed by his son (1st petitioner). Respondent has taken delivery of the property excluding the two houses referred above. 4. While so, learned Sub Judge, Tirur disposed of A.S.No.50 of 2003. While confirming the final decree and the finding that petitioners are not entitled to get value of improvements, learned Sub Judge held that applications for kudikidappu (which in the meantime petitioners had preferred by petitioners before the Tribunal) have already been dismissed by the Tribunal and hence the question of reference (as claimed in I.A.No.2021 of 2007) did not arise but, observed that the ‘vested right of kudikidappu’ of petitioners can be raised in execution. In otherwords, the claim of kudikidappu raised by petitioners was OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 4 relegated to be decided in execution. With the above observations and directions A.S.No.50 of 2003 was dismissed. Challenging that judgment, a Regular Second Appeal is pending in this Court. 5. Respondent filed E.P.No.139 of 2008 for delivery of the two houses as well (which as per Ext.P2, judgment dated 15.05.2003 in O.P.No.15069 of 2003 was excluded from delivery then). In E.P.No.139 of 2008 petitioners filed E.A.No.82 of 2011 claiming protection of kudikidappu under Explanation IV to Sec.2(25) of the Act and requesting that question to be referred to the Tribunal under Sec.125(3) of the Act. That application was resisted by the respondent on various grounds including a plea of res judicata. It was contended by the respondent that Karuppan @ Appunni had raised a claim of fixity of tenure under Sec.13 of the Act, that claim was referred to the Tribunal, found in favour of Karuppan @ Appunni and ultimately this Court in the Second Appeal reversed that finding and held that the transaction between respondent and Karuppan @ Appunni is only a mortgage. Executing court placing reliance on the decision in Victoria’s case held that the plea of kudikidappu is barred by res judicata and hence no question of reference to the Land Tribunal is involved as the question of kudikidappu does not “arise” for a decision under Sec.125(3) of the Act. Executing court also held that to claim protection under Explanation IV to Sec.2(25) of the Act, one must be a “mortgagee” in possession but the claim of Karuppan @ Appunni all along was that he was a tenant and hence also question of kudikidappu does not arise. OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 5 Ext.P4, order dated 08.08.2011 of the executing court to that effect is under challenge in O.P.(C) No.2742 of 2011. 6. On the request of petitioners, the Tribunal had in the meantime initiated S.M. Proceedings (when the matter was pending in the civil court) as regards the two houses in question. The Tribunal and later, the Appellate Authority(LR) found that since Karuppan @ Appunni was only a mortgagee of the suit property, claim of kudikidappu raised by petitioners (his legal representatives) under Explanation IV to Sec.2(25) of the Act does not arise. The S.M. Proceedings were decided accordingly. Those orders are under challenge in C.R.P.Nos.248 of 2011 and 249 of 2011. 7. It is contended by Shri T.Krishnanunni, learned Senior Advocate for petitioners that the executing court was not right in placing reliance on the decision in Victoria’s case. It is contended that the claim of kudikidappu falling under Explanation IV to Sec.2(25) of the Act was not raised or decided either in the trial side or in the execution side at any earlier point of time and hence, the question of that plea being barred by res judicata does not arise. It is contended that in view of Explanation IV to Sec.2(25) of the Act, petitioners could raise the claim for protection under the said provision only “at the time of redemption” which arises only in the course of execution when even after the respondent deposited the mortgage money in the year, 2003, petitioners refused to deliver back the documents and possession of the property and consequently respondent filed petition for execution of the final decree. The claim under OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 6 Explanation IV to Sec.2(25) of the Act could be raised only at the time of redemption, in the course of execution. Hence it was not possible for petitioners or their predecessor-in-interest to make a claim under Explanation IV to Sec.2 (25) of the Act at any time before redemption. Hence the question of the said plea being barred by constructive res judicata also does not arise as that rule would apply only if petitioners or their predecessor-in-interest could have raised the plea earlier, but did not do so. It is also contended that the decision in Victoria’s case has no application to the facts of this case since in this case the claim for protection under Explanation IV to Sec.2(25) of the Act was not raised or rejected at any proper point of time and instead, the first appellate court while deciding A.S.No.50 of 2003 arising from the final decree has relegated the plea of kudikidappu to be raised in execution. Learned Senior Advocate has also invited my attention to the decisions in Balakrishnan v. Bhaskaran (1987 (2) KLT 733), Janaki Padmakshi v. Saraswathi & another (2000 (1) KLJ 453), Vidhyadharan v. Sivadas (2001(2) KLT 605) and Prabhavathy v. Narayani Amma (2007 (2) KLT SN 20- Case No.30). It is the further contention of learned Senior Advocate that this is not a case where Karuppan @ Appunni had raised a claim of deemed tenancy under Sec.4A(1)(b) of the Act, he only pleaded that the transaction between him and the respondent is only a lease which question alone was referred to the Land Tribunal and hence, the decision in Victoria’s case has no application. On OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 7 the above contentions, it is argued that Ext.P4, order (in O.P.(C) No.2742 of 2011) passed by the executing court is not sustainable. It is prayed that the said order may be set aside and the claim of kudikidappu raised by petitioners be referred to the Tribunal under Sec.125(3) of the Act. 8. Learned Senior Advocate, Shri A.P.Chandrasekharan appearing for the respondent has contended that if not a claim under Sec.4A(1)(b) of the Act, Karuppan @ Appunni had claimed fixity of tenure under Sec.13 of the Act, requested for a reference under Sec.125(3), that request was allowed and the Tribunal found in favour of fixity of tenure. But, this Court in S.A.No.787 of 1988 reversed the findings of first appellate/trial courts and the Tribunal and held that no lease is involved but the transaction is a mortgage. It is contended that Karuppan @ Appunni never raised a claim of kudikidappu under Explanation IV to Sec.2(25) of the Act until he died on 06.09.1992. Hence, his legal representatives could not make a claim of kudikidappu under Explanation IV to Sec.2(25) of the Act. It is argued that the privilege granted under Explanation IV to Sec.2(25) of the Act is personal to the mortgagee and does not enure to the benefit of his legal representatives. In so far as Karuppan @ Appunni had not made any claim for that privilege, his legal representatives are not entitled to claim kudikidappu. Learned Senior Advocate has also referred to me the purpose of agrarian reforms brought about by the Act – to provide land for the landless and not to defeat a claim for redemption of mortgage made by the indigent mortgagor against the mortgagee-money lender. It is contended that in OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 8 so far the claim for fixity of tenure was raised by Karuppan @ Appunni under Sec.13 of the Act and ultimately found against and he having not made any claim for kudikidappu during his life time, claim made by petitioners in that regard is bared by res judicata, actual and constructive as held by the Apex Court in Victoria’s case. In that view of the matter, it is contended that there is no reason to interfere with Ext.P4, order. 9. I have referred to the factual scenario in the case. It is not disputed that Karuppan @ Appunni had claimed fixity of tenure under Sec.13, if not under Sec.4A(1)(b) of the Act, that claim was referred to the Tribunal and ultimately, the finding of the Tribunal and of the first appellate court were reversed by this Court in S.A.No.787 of 1988. He had also not made any claim for kudikidappu. Now the question is whether on account of that, claim made by petitioners for protection under Explanation IV of Sec.2 (25) of the Act in the execution proceeding is to be referred under Sec.125(3) of the Act as if that question “arises” for a decision. 9. Dwelling upon the expression 'arises' occurring in Sec.125(3) of the Act, it has been held many a times that the question should genuinely and actually “arise” for a decision as distinguished from the question being “raised” for a decision. The question of reference under Sec.125(3) of the Act would arise only if the question really “arises” for a decision. If on the rule of res judicata, actual or constructive, the question does not “arise” for a decision, then OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 9 the question of reference to the Tribunal under Sec.125(3) of the Act does not arise. My endeavour in this proceedings is to decide whether the claim of kudikidappu raised by petitioners under Explanation IV to Sec.2(25) of the Act does “arise” for a decision so that, the question is to be referred to the Tribunal. 10. Going by Explanation IV to Sec.2(25) of the Act it is true that the question of kudikidappu can be raised “at the time of redemption”. Referring to that expression, a Division Bench of this Court in Balakrishnan v. Bhaskaran (supra) (that case related to a redemption of mortgage) held that the words “at the time of redemption” occurring in Explanation IV to Sec.2(25) of the Act are not synonymous with the words ''at the time for redemption''. The Division Bench held that the time for redemption is any time after the money payable in respect of the mortgage has become due and before a suit for redemption of mortgage property is barred. The Division Bench, in paragraph 8, held that the filing of suit (for redemption) does not ipso facto extinguish the mortgage, the mortgage comes to an end or the right of redemption would get extinguished only on the mortgagor depositing the price of redemption pursuant to the directions contained in the mortgage decree and that the time at which the deposit aforesaid is made is 'at the time of redemption' of a mortgage under law. It is further held that the said time can arise only after passing of the decree. If the judgment debtor (in the suit for redemption) refuses to hand over the OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 10 documents and deliver property to the decree holder on the latter depositing the mortgage money pursuant to the directions in the decree, decree holder has to initiate execution proceedings for recovery of possession of the property. That is the stage at which the question whether a mortgagee with possession is a kudikidappukaran arises for a consideration. The matter will be substantially in issue only at that stage. It is also held that it is when in spite of deposit of mortgage money the judgment debtor in the suit for redemption refuses to deliver back the documents and property to the decree holder and, the decree holder to get back the possession of property and documents initiates execution proceedings that the stage, ''at the time of redemption'' comes. In the said decision it was held that the stage when the judgment debtor could claim protection of Explanation IV to Sec.2(25) of the Act is ''at the time of redemption'' and hence the question of constructive res judicata on account of the plea not being raised earlier does not arise. In holding so, the Division Bench affirmed the decision of the Single Bench in Ratnamma v. Kamalamma Pillai (1983 KLT 227). 11. In Janaki Thankamma v. Kamalakshy Sumangala (1997 (1) KLJ 30), a learned Judge of this Court while referring to the stage at which a claim under Explanation IV to Sec.2(25) of the Act could be raised in a suit for redemption, held that the claim could be raised only in execution proceedings at the time of actual eviction. It was also held that rejection of a OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 11 claim of kudikidappu at an earlier stage would not bar petitioner raising the plea in execution. In holding so, learned Judge placed reliance on the decision in Ratnamma v. Kamalamma Pillai (which has been affirmed by the Division Bench in Balakrishnan v. Bhaskaran (supra). 12. Yet another decision learned Senior Advocate has brought to my notice on behalf of petitioners is Janaki Padmakshi v. Saraswathi & another (supra). There, the plea of kudikidappu raised by the 1st judgment debtor in the preliminary decree proceeding was deferred for consideration at a later stage. In the final decree proceeding, it was specifically provided that the plea should be considered at the execution stage. In the course of execution, judgment debtor raised the claim of protection under Explanation IV to Sec.2(25) of the Act. This Court distinguished the decision in Victoria's case holding that in Janaki Padmakshi's case the trial court had not negatived the contention with regard to kudikidappu under Explanation IV to Sec.2 (25) of the Act, the claim was also not rejected but was relegated to the execution proceeding for a decision and hence the decision in Victoria's case has no application. 13. In Vidhyadharan v. Sivadas – supra (that decision is rendered by the learned Judge who decided Janaki Thankamma v. Kamalakshy Sumangala (supra)) the executing court referred the claim OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 12 made by the judgment debtor under Explanation IV to Sec.2(25) to the Tribunal under Sec.125(3) of the Act. The Tribunal held that judgment debtor is not entitled to kudikidappu as he had no possession as on 01.01.1970. Executing court accepted that finding and ordered delivery. That order was challenged by the judgment debtor in civil revision in this Court. Referring to the said finding of the Tribunal, learned Judge relied on the Full Bench decision in Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751) and held that even though judgment debtor became kudikidappukaran during 1978-79, right under Sec.80A of the Act is not restricted to persons who acquired status of kudikidappukaran before 01.01.1970 alone and hence the view taken by the Tribunal is not correct. But, learned Judge refused to interfere with the ultimate order passed by the Tribunal that the judgment debtor in that case was not entitled to the protection under Explanation IV to Sec.2(25) of the Act since the trial court had negatived the claim of kudikidappu. Hence the question did not “arise” for a decision in execution. Learned Judge placed reliance on the decision in Victoria's case. 14. Yet another decision learned Senior Advocate has brought to my notice on behalf of petitioners is Prabhavathy v. Narayani Amma (supra). There, reference was made to Balakrishnan v. Bhaskaran, Janaki Padmakshi v. Saraswathi & another and Vidhyadharan v. OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 13 Sivadas (supra). It was observed that Explanation IV to Sec.2(25) of the Act enables a mortgagee to claim kudikidappu at the time of redemption and therefore, the question whether a mortgagee had claimed kudikidappu at the trial stage and whether it was considered and negatived may not be very relevant for considering the question whether a mortgagee is entitled to the protection under Explanation IV to Sec.2(25) of the Act. 15. Before referring to the decision Victoria's case, it is relevant to refer to the decision rendered by this Court on 17.03.1997 in C.R.P.No.2587 of 1996 from which Victoria's case arose. That was a revision filed by the decree holder in whose favour a decree for redemption of mortgage stood. Judgment debtors raised various contentions in defence including that they are tenants entitled to fixity of tenure under Sec.13 of the Act as the transaction is a lease and even otherwise they are entitled to fixity of tenure under Sec.4A(1)(b) of the Act. They also raised a claim that on redemption (of mortgage) they are entitled to the protection of kudikidappu under Explanation IV to Sec.2(25) of the Act. The trial court overruled the claim under Secs.13 and 4A(1)(b) of the Act based on the finding of the Land Tribunal on a reference. Trial court directed that the claim of kudikidappu raised by the defendants/judgment debtors under Explanation IV to Sec.2(25) of the Act be considered in execution. The decree of the trial court to that effect was confirmed in appeal and Second Appeal. Decree holder filed petition for execution to get back the documents and OP(C)No.2742/2011 & CRP Nos.248 & 249/2011 14 possession of property on deposit of the mortgage money. In execution, judgment debtors claimed protection under Explanation IV to Sec.2(25) of the Act. That plea was accepted by the executing court and the question was referred to the Tribunal under Sec.125(3) of the Act. The order of the executing court referring the claim to the Tribunal was challenged by the decree holder in this Court in C.R.P.No.2587 of 1996. This Court referred to various decisions including Narayanan v. Kunchi Amma Parukutty Amma (1986 KLT 1340) and Vijayan v. Kamalakshmi Amma (1994 (1) KLT 942- SC) and held that judgment debtors (in that case) having raised a claim of cultivating tenancy and that claim having been found against, the question of kudikidappu does not ''arise” for a decision in the executing court. It is seen from the order dated 17.03.1997 in C.R.P.No.2587 of 1996 that in that case, judgment debtors had raised a claim for fixity of tenure under Sec.13 of the Act and at any rate, under Sec.4A(1)(b) of the Act. Alternatively, a claim of kudikidappu on redemption (of mortgage) was also raised. I stated a little above that the claim of tenancy was referred to the Tribunal and found against but the trial court directed that the question regarding kudikidappu under Explanation IV to Sec.2 (25) of the Act be decided in the execution proceedings which the first appellate court and this Court confirmed in appeal and Second Appeal and it is thereafter that in execution judgment debtors raised the said claim of kudikidappu which question the executing court referred to the Tribunal. This