IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 SA.No. 439 of 1997(B) --------------------- AS.1/1990 of PRL.SUB COURT,THIRUVANATHAPURAM OS.1443/1978 OF MUNSIFF'S COURT THIRUVANANTHAPURAM .................... APPELLANT(S): ---------------------- CHELLAMMA PILLAI PADMAKSHI AMMA, AGED 66 YEARS, RESIDING AT VAZHAVILAKATHU VEEDU, MOOTHADA MURI, ANCHAMADA, PEROORKADA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.P.S.VASAVAN PILLAI SRI.D.SAJEEV RESPONDENT(S): ------------------------- 1. KRISHNA PILLAI SASIDHARAN NAIR, RESIDING AT KAPPIVILA PUTHEN VEEDU, KULASEKHRAM, MOOTHADA MURI, ANCHAMADA PAKUTHI, THIRUVANANTHAPURAM TALUK. 2. NARAYANA PILLAI BHUVANENDRAN NAIR, RESIDING AT VAZHAVILAKATHU VEEDU, MOOTHADA MURI, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM TALUK. 3. PADMAKSHI AMMA VALSALA OF -DO- -DO- 4. PADMAKSHI AMMA SASEENDRAKUMARI OF -DO- -DO- 5. KRISHNA PILLAI SASEENDRAN NAIR OF -DO- -DO- 6. PADMAKSHI AMMA LATHIKAKUMARI OF -DO- -DO- 7. * PADMAKSHI AMMA JAYAKUMARI OF -DO- -DO-(DELETED) * THE NAME OF R7 IS DELETED FROM THE ARRAY OF PARTIES, AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 2/7/2003 ON IA.NO.245/2003. sts S.A.NO.439/1997 8. PADMAKSHI AMMA USHAKUMARI OF -DO- -DO- 9. NARAYANA PILLAI GOPAKUMAR OF -DO- -DO- 10. NARAYANA PILLAI HALKUMAR OF -DO- -DO- 11. KRISHNA PILLAI SREEDHARAN PILLAI OF -DO- -DO- 12. S. KUMARI OF -DO- -DO- 13. S. GEETHA OF -DO- -DO- 14. S. AJIHA OF -DO- -DO- 15. S. GOPAKUMAR OF -DO- -DO- * ADDL.R16 IMPLEADED * ADDL.R16: JAYACHANDRAN NAIR, S/O.NARAYANAN PILLAI, VAZHAVILAKATHU VEEDU, (ANNEX),MOOTHADA TALUK, ANCHAMADA, PEROORKADA VILLAGE, TRIVANDRUM TALUK. *ADDL.R16 IS IMPLEADED AS PER ORDER DATED 11/2/2004 ON IA.NO.257/2004. * ADDL.R17 IMPLEADED * ADDL.R17: SARATH CHANDRAN NAIR, S/O. NARAYANA PILLAI, AGED 44 , 'POORADAM', NEDUMPALLY, KUTTAMALA P.O., NEYYATTINKARA.( DIED) * ADDL.R17 IMPLEADED AS PER ORDER DATED 12/1/2011 IN I.A.NO.1270/2004. * ADDL.R18 TO R20 IMPLEADED * ADDL.R18: K.V.JALAJA KUMARI, AGED 40, 'POORADAM', NEDUMPALLY, KUTTAMALA.P.O., AMBOORI, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. *ADDL.R19: ANUJA SARATH, AGED 19 , DO. DO. *ADDL.R20: ANOOP S. NAIR,(MINOR) AGED 15 , DO. DO. * ADDL.R18 TO R20 IMPLEADED AS PER ORDER DATED 12/1/2011 IN I.A.NO.32/2011 R1 BY ADV. SRI.P.GOPALAKRISHNAN NAIR R2 & R6 BY SRI.V.R.GOPU R15 BY ADV. SRI.P.C.CHACKO(PARATHANAM) SMT.ASHA P.KURIAKOSE ADDL.R16: BY ADV. SRI.G.S.REGHUNATH ADDL.R18 TO R20 ADV.SRI.D. SAJEEV THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, ALONG WITH CO NO. 84 OF 2004 AND CO NO.36 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.439/1997 ORDER ON I.A.NO.1348/2003 IN C.M.P.NO.79/2000 IN S.A.NO.439/1997 DISMISSED 12/01/2011 SD/- HARUN-UL-RASHID,JUDGE /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 439 OF 1997 & Cross Objection Nos.84 & 36 OF 2004 ------------------------------- DATED THIS THE 12TH DAY OF JANUARY, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: i) Can a mortgagee be treated as a deemed tenant under Sub Section (c) of Section 7A of the Kerala Land Reforms Act,1963 (Act 1 of 1964)? ii) Will the non-production of an admitted document disentitles a mortgagee to the benefit of deemed tenancy under the Kerala Land Reforms Act, 1963? iii) Will not the non-joinder of necessary parties render a suit liable for dismissal? iv) Do Exts.A1 and A3 documents confer any rights on the respondent/plaintiff? v) Should not have the value of improvements ascertained after identifying the mortgaged property with the held of Taluk Surveyor or Village officer? 2. The defendant in O.S.No.1443/78 on the file of -2- S.A..No.439/97 the II Additional Munsiff's Court, Thiruvananthapuram is the appellant. The appeal is directed against the judgment and decree in A.S.No.455/89 (renumbered as A.S.No.1/1990) on the file of the District Court, Thiruvananthapuram. The suit was filed for partition by metes and bounds and separate possession of plaintiff's ¼ share and for redemption of mortgage in respect of the plaintiff's share, after depositing the proportionate mortgage money and the value of improvements. The trial court decreed the suit. The Lower Appellate Court confirmed the judgment and decree and dismissed the appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaintiff's case is that the plaint schedule property originally belonged to Krishna Pillai, the deceased father of the plaintiff under a partition deed, that the said Krishna Pillai, his mother, his brothers and sisters executed a mortgage deed No.8787/1951 in favour of Kochappi Vasudevan and another and -3- S.A..No.439/97 that the mortgage right was assigned in favour of the lst defendant by assignment deed No.2707/1966. It is averred in the plaint that the partition deed executed between the members of the family provided that the mortgage properties shall be redeemed by the sharers on payment of proportionate share amount and that the plaintiff's father obtained the right to redeem the mortgage in respect of the plaint schedule property having an extent of 16 ¼ cents out of 65 cents mortgaged. The plaintiffs sued for partition and redemption. It is stated that after the death of his father Krishna Pillai, the right in the plaint schedule property devolved on the plaintiff, his brothers, sisters and their mother. It is also averred that other sharers including his mother executed a release deed No.1929/1978 releasing their right in favour of the plaintiff. In the above context, the suit was filed for redemption of the mortgage on payment of the proportionate mortgage money. There is only one defendant in the suit at the time of filing. Subsequently defendants -4- S.A..No.439/97 2 to 12 were impleaded as per order dated 12/3/1980 in I.A.No.7871. Additional defendants 2 to 12 are the children of the deceased lst defendant. 4. In the written statement filed by the lst defendant it is inter alia contended that the plaintiff got only ¼ oodukoor right over the entire property including the plaint schedule, that the lst defendant and her children are also having ¼ oodukoor right, that unless the ¼ oodukoor right is partitioned, the plaintiff will not get right to redeem the mortgage in respect of the plaintiff's share, that the lst defendant-mortgagee had made value of improvements in the property and the value of improvements will come to Rs.15,000/- and that in case the court finds that the property is liable to be redeemed, the lst defendant may be awarded value of improvements. Later, the lst defendant also filed additional written statement contending that the mortgage deed of 1951 is in fact an otti and kuzhikanam deed conferring fixity of tenure under the -5- S.A..No.439/97 provisions of the Kerala Land Reforms Act and therefore defendants 1 to 10 have got fixity of tenure over the property. Defendants 8 to 10 also filed written statement supporting the contentions of the lst defendant and claimed that they are also tenants entitled to fixity of tenure. 5. The trial court referred the question of tenancy to the Land Tribunal, Thiruvananthapuram under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal by order dated 6/2/1985 answered the reference finding that the lst defendant is not entitled to fixity of tenure under the provisions of the KLR Act. The finding of the Land Tribunal is attached to the judgment of the trial court. The trial court examined the question as to whether the plaintiff is entitled to redeem the portion scheduled in the plaint and what is the quantum of value of improvements due to the mortgagee. The total extent of property of 65 cents belonged to the paternal grandmother. The property was mortgaged under Ext.A2 -6- S.A..No.439/97 mortgage deed by the plaintiff's grandmother and other members of the family. The court on a perusal of Ext.A1 held that in Ext.A1 partition provision is made for redeeming the mortgage and there is also provision allowing the respective sharers to redeem their respective portions, which they are entitled to. The court below found that Ext.A2 mortgage is mentioned in Ext.A1 partition deed. Ext.A3 is the release deed executed in favour of the plaintiff by which the plaintiff has obtained release of all rights of the executants of Ext.A3. Finding that the plaintiff is the absolute title holder of the plaint schedule property and the defendants have no right of fixity of tenure as contended, it was held that the plaintiff is entitled to redeem the mortgage. 6. Ext.C1 is the commission report in which the commissioner assessed the value of improvements effected in the entire 65 cents. In Ext.C1, the commissioner reported that the value of improvements effected comes to Rs.19,564.08. The -7- S.A..No.439/97 Commissioner was examined as DW-2. The trial court accepted the Commissioner's report finding that there is no illegality or grave irregularity committed by the Commissioner. The court also noted that the value of improvements claimed in the written statement is only Rs.15,000/- which is almost in tune with the assessment of the Commissioner. The trial court accepted the value of improvements assessed at Rs.19,564.08 and the amount was rounded as Rs.20,000/-. The ¼ share of the improvements is calculated as Rs.5,000/-. The court below held that the lst defendant is entitled to Rs.5,000/- as value of improvements. The lst defendant alone filed an appeal. The Lower Appellate Court appreciated the facts, circumstances and evidence. The very same contentions are agitated before the Lower Appellate Court. The Lower Appellate Court noticed that in paragraph 4 of the written statement the appellant admitted that that the plaintiff has ¼ oodukoor right over the plaint schedule property and that he does not have separate possession -8- S.A..No.439/97 over 16 ¼ cents. The Appellate Court also noticed that the contention in the written statement that the appellant and her children claimed ¼ right over 65 cents. The court also took notice of the further contention of the defendants that the plaintiff can sue for redemption right of ¼ share over the 65 cents of property only after the property is partitioned by metes and bounds. Thus the Lower Appellate Court also noticed the fact that the contesting defendant has admitted ¼ right of the plaintiff over 65 cents of property and that the property is liable to be partitioned among the parties to Ext.A1 cannot be disputed. The appellant also has not raised any objection in granting relief of partition, in view of the contention that herself and her children are entitled to get ¼ share over the property. In short, the appellant contended before the Lower Appellate Court that the plaintiff has right only ¼ share of 65 cents and he can redeem his share only after partition. So it is not open for the appellant to contend that the plaintiff has no right -9- S.A..No.439/97 over the plaint schedule property. Ext.A3 is the release deed executed by others releasing their right over the property in favour of the plaintiff. Thus, the plaintiff obtained release of all the rights of the executors. On the basis of the contentions raised in the written statements, which was elaborately discussed and stated in the judgment, the Lower Appellate Court repelled the contentions of the appellant. 7. In the light of the contentions raised in the written statement that the plaintiff will get right over the property only on partition, the plaintiff sought to amend the plaint by incorporating the prayer for partition. The Appellate Court accepted the report of the Commissioner fixing the value of improvements at Rs.20,000/-. In the second appeal the appellant raised a claim that he is entitled to fixity of tenure by taking recourse to Section 7A(c) of the KLR Act. The only provision in the KLR Act by which a mortgagee can claim tenancy is under Section 4A. Under Section 4A certain -10- S.A..No.439/97 mortgagees and lessees of mortgagees, who satisfy the requirement of clause (a) or clause (b) of Section 4A are deemed tenants. The appellant has no case that Section 4A conditions set out under clauses (a) or (b) is applicable in this case. The Land Tribunal on reference also considered the question of tenancy raised by the lst defendant. The Land Tribunal found that the applicant failed to adduce any evidence in support of the claim of tenancy. The Land Tribunal also observed that the assignment deed by which the applicant claimed tenancy was executed in her favour in the year 1966. The assignment deed of the year 1966 stands in the name of the appellant. But he did not produce it either before the Land Tribunal or the trial court or the Appellate Court. The document which is in her custody, was produced for the first time in the second appeal. I have gone through the recitals in the said assignment deed. The recitals in the said deed also show that it is an assignment of the mortgage and nothing else. The said deed is -11- S.A..No.439/97 admitted as an additional evidence and marked as Ext.A4. The contentions raised by the appellant were considered in detail by the fact finding courts. Both the courts on facts and evidence found that the plaintiff is entitled to the relief sought for in the plaint. After taking into consideration the contentions of both sides, the court found that the plaintiff is entitled to the decree for partition and separate possession of his share. The court on facts found that the plaintiff is entitled to redeem his share on deposit of the proportionate mortgage money and the value of improvements. Two other children of the lst defendant, who were not impleaded before the trial court, were also impleaded in this appeal as additional respondents 16 and 17. They have also filed a cross objection raising the grounds agitated by the appellants in the second appeal. The finding of the lower Appellate Court would go to show that the contentions raised before it were considered and the impugned judgment was passed by the learned Judge. -12- S.A..No.439/97 8. I do not find any merit in the appeal or the cross objections filed by the additional respondents 16 and 17. I also find that no grounds are made out by the appellants in the appeal or cross objection for interference by this Court in exercise of the jurisdiction conferred under Section 100 C.P.C. No question of law much less any substantial questions of law arise for consideration in the appeal. The appeal and cross objections fail and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, kcv. Judge.