MATHEVAN PILLAI PADMANABHA PILLAI

ARULAPPAN NADAR YOVAN NADAR AND ORS.

SEPTEMBER 4, 1998

(K.T. THOMAS AND M. SRINIVASAN, J.1.]

Kera/a Land Refomzs Act, 1964 : Section 4-A (as amended by Act 35 of 1969).

Deemed tenant-Pre-condition.1-Mortgagor executed us11f111ctua1y C 11101tgage inf avour of mo1tgagee in 1094 ME ( 1919 )--Doi:wnent executed in

1119 ME ( 1944) recited that 11101tgage amount was received by m01tgagee and land was swrendered to mo1tgag01-A second m01tgage was given by the same m01tgagdr to the same mmtgagee in ll22 ME ( 1947) for a larger amount inclusive of the amount of the earlier mo1tgage-Mo1tgagor's suit for redemption of the second mmtgage resisted by moltgagee on ground that the D land was in mmtgagee's possession for a continuous pe1iod of more than 50 years p1ior to the relevant date i.e. 1. 1. 1970 and, therefore, 11101tgagee was

emitted to fu:ity of tenure by vi1tue of S. 4-A-Trial cowt passed a decree for redemption-Appellate cowt found as a fact that possession never passed 011 to the m01tgagor-Held: Mmtgagee must hold the land comp1ised in the mo1tgage for a continuous pe1iod of 50 years--17zrouglwut the peliod of the said 50 years the land must be under mmtgage though there ca11 be more than one m01tgage-l11 view of the finding of fact by appellate coult that possession never passed on to the m01tgagor, the appellate cowt was 1iglzt i11 dismissi11g the suit for redemption.

The appellant's predecessor executed a usufructuary mortgage in favour of the respondents in 1094 ME (1919). In the year 1119 ME (1944)

a document was executed in which it was recited that the mortgagees had received the mortgage amount and the land was surrendered to the mortgagor. Simultaneously, another document was executed by the same G 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.

The appellant filed a suit for redemption of the mortgage of the year 1122 ME (1947). The suit was resisted by the respondents on the ground H 437

A that the respondents had been holding the land continuously for more than

50 years prior tO the relevant date i.e. 1.1.1970 and, therefore, the respondents were entitled to fixity of tenure by virtue of Section 4-A of the Kerala Land Reforms Act, 1964 (as amended by Act 35 of 1969). The trial court passed a decree for redemption. The appellate court had found as a fact B that possession did not pass on to the mortgagor although the recitals of the document by which the first mortgage was discharged showed that possession was handed over to the mortgagor. Thus the appeal filed was allowed which was confirmed by the High Court. Hence this appeal.

On behalf of the appellant it was contended that there was a break C in the continuity of possession and, therefore, the period of 50 years

mentioned in Section 4-A of the Act should be calculatelf frotn the date on which the fresh mortgage was executed.

Dismissing the appeal, this Court

D HELD : 1.1. Section 4-A of the Kerala Land Reforms Act, 1964 (as amended by Act 35 of 1969) 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. Section 4-A does not insist upon there being only one mortgage throughout the period of fifty years. The language of Section 4-A E is wide enough to show that there can be more thn one mortgage but the mortgagee shall hold the land comprised in te mortgage continuously for a period of not less than fifty years. [440-D-E]

1.2. In view of the finding of the appellate court that the mortgagees were in possession of the Land for a continuous period of more than 50 F years, Section 4-A of the Act was attracted and, therefore, the appellate court was right in dismissing the suit for redemption. [ 439-F; 441-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3727 of 1988.

From the Judgment and Order dated 28.11.85 of the Kerala High Court in S.A. No. 774 of 1980.

G.V. Chandrashekhar and T.G.N. Nair for the Appellant.

H P.S. Poti and Ms. Malini Poduval for the Respondents.

M. PILLAI P. PILLAI v. A NADAR Y. NADAR[SRINIVASAN, J.]

The Judgment of the Court was delivered by

SRINIVASAN, J. 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 appellants predecessor executed a usufructuary mortgage in favour of the respondents in the year 1094 M.E. corresponmng 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 eecuted 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 f. 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 F 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 G 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 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 a tenant if:

(a) the mortgagee or lessee was holding the land comprised in the mortgage for a wntinuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or ......... "

D . 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 E 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 on to the mortgagor on the date of Ex. A-3.

The relevant passage in his judgment is as follows :

"It is true that ExA-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 took place in fact but there was only adjustmet 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 pGssession 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 and an immediate handing over

M. PILLAI P. PILLAI v. A NADAR Y. NADAR [SRINIVASAN, J.] 441

possession to the executants of A-3 as per B-2. Under Ex.B-2 the A 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 possession pursuant to A-2 otti. The 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 C Principal Subordinate Judge and affirmed by the High Court. Hence there is no merit in this appeal and it is hereby dismissed. There will be no order as to costs.

v.s.s.

Appeal dismissed.