Narayanaswami Iyer v. Kuttan — 1974 DIGILAW 131 (KER)

JUDGMENT P. Subramonian Poti, J. 1. These two appeals are against the same judgment and decree, the former by the second defendant in the suit and the latter by the plaintiff. The suit is one for redemption of a karipanayam dated 25th Vrischigom 1099 corresponding to 10th December, 1923 on deposit of the karipanayam amount of Rs. 9,500 and the value of improvements. Purapad at the rate of 713 paras of paddy per annum is also claimed in the suit. The suit was resisted on several grounds one of which was that the plaintiff had no right to redeem since the defendants were holding as lessees. It was also contended that the provisions of the Kerala Land Reforms Act as amended by Act XXXV of 1969 enabled the defendants to contend that they are to be deemed tenants within the meaning of that Act. The court below found that the defendants were holding as mortgagees under the karipanayam and therefore they were liable to be redeemed but in the case of defendants 3 and 5 to 15 a different view had to be taken since they, being lessees of the mortgagees whose lease was prior to 26th February 1961, were entitled to fixity of tenure in regard to portions in their possession. It is this part of the decree that is challenged in the appeal by the plaintiff. The second defendant challenges the decree in so far as it holds that defendants 1 and 2 have been in possession under a mortgage and not a lease. 2. The plaint schedule properties belonged to Nedumpulli Tharananallur Mana in jenm. The karanavan of the mana, one Padmanabhan Namboodiripad executed a karipanayam mortgage in respect of the plaint schedule properties for a sum of Rs. 9,500 in favour of Krishna Pattar and Sundara Iyer, both sons of Pichu Pattar Karikkar. The kychit executed by Krishna Pattar and Sundara Iyer in favour of the mana evidencing the karipanayam is Ext. A-1 in the case. It is seen from the recitals in this mortgage that the properties were being held even earlier by Krishna Pattar and Sundara Iyer pursuant to an earlier kanom demise. This is Ext. B-1 of 25th December 1904 executed by the mana in favour of Pichu Pattar. Exhibit A-1 was taken after Ext. A-1 in the case. It is seen from the recitals in this mortgage that the properties were being held even earlier by Krishna Pattar and Sundara Iyer pursuant to an earlier kanom demise. This is Ext. B-1 of 25th December 1904 executed by the mana in favour of Pichu Pattar. Exhibit A-1 was taken after Ext. A-7 release deed was executed on the same date by Krishna Pattar and Sundara Iyer in favour of the mana. Towards the mortgage amount and value of improvements under Ext. B-1 a sum of Rs. 9,000 was received under Ext. A-7 release. That formed the main part of the consideration of Rs. 9,500 under Ext. A-1. The plaintiff in the suit is an assignee of the rights of the mana which executed the karipanayam. Ext. A-3 of 3rd April 1965 evidences such assignment in favour of the plaintiff and it is on the strength of this that he seeks redemption. The rights of the mortgagees Krishna Pattar and Sundara Iyer were assigned to defendants 1 and 2 on 6th November 1937 under Ext. B-2 and these defendants are holding under this document. There was an arrangement of partition between the first defendant and 2nd defendant evidenced by Ext. A-9 and thereafter the first defendant had granted a lease, Ext. B-6, in 1956 in favour of one Vamanan Namboodiri and such tenancy rights have been transferred to defendants 3 and others under whom defendants 3 and 5 to 15 are now claiming tenancy rights. 3. That, read by itself, Ext. A-1 evidences a mortgage transaction is not disputed. But counsel for the second defendant, appellant in A.S. 64 of 1971, contends that prior to the karipanayam the parties were holding under a kanom and that though the karipanayam is a mortgage it satisfies the definition of a kanom in section 2 (22) of the Kerala Land Reforms Act 1 of 1964 as amended by Act 35 of 1969 since it is a transfer for consideration for the enjoyment of the transferee and there is provision for payment of michavaram. It is further urged that section 4A of the said Act would apply to the transaction and therefore the mortgage should be deemed to be a tenancy. It is further urged that section 4A of the said Act would apply to the transaction and therefore the mortgage should be deemed to be a tenancy. Section 6B is another provision which enables a mortgagee with possession of immovable property at the commencement of the Kerala Land Reforms (Amendment) Act 35 of 1969 in any area in the State to which the Malabar Tenancy Act extended to claim that he should be deemed to be a tenant on satisfying certain conditions. One of such conditions is that he should be holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing the transaction. The case of the second defendant is that the provisions of section 6B should at any rate apply, since the mortgagee should be found to be holding the property in consideration of payment of amount specified as michavaram in the document evidencing such transaction. 4. We would first consider the question whether defendants 1 and 2 should be deemed as tenants within the meaning of section 6B of Act 1 of 1964. That section runs: "6B. Certain mortgagees in areas to which Malabar Tenancy Act extended to be deemed tenants. ”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 immovable property at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, in any area in the State to which the Malabar Tenancy Act, 1929, extended, shall be deemed to be a tenant if" (a) he was holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing the transaction; or (b) there is a provision in such document for renewal on the expiry of a specified period.� Reference has necessarily to be made to the terms of the karipanayam deed Ext. A-1. The consideration for the karipanayam, as we have stated earlier, is Rs. 9,500. The rent of the properties is mentioned in Ext. A-1 as 1663 paras of paddy and Rs. 10 per annum. Out of this the interest on the mortgage amount is shown as 1163 paras of paddy and Rs. 9 with the result the balance left is 500 paras of paddy and Re. 1 per annum. 9,500. The rent of the properties is mentioned in Ext. A-1 as 1663 paras of paddy and Rs. 10 per annum. Out of this the interest on the mortgage amount is shown as 1163 paras of paddy and Rs. 9 with the result the balance left is 500 paras of paddy and Re. 1 per annum. This is made payable as purapad annually. Though the reference is made to this payment as purapad there is reference to this also as michavaram. The relevant passage in Ext. A-1 reads: MALAYALAM It is evident from this passage that the word michavaram has been used as a synonym for purapad and default in payment of purapad has been referred to as default in payment of michavaram. It is therefore contended that the document evidences holding of properties by the mortgagees in consideration of payment of amounts specified as michavaram in the document evidencing the transaction. This contention appears to us to be quite sound, as we will presently show. At the hearing counsel for the plaintiff urged several points in answer to the case of the second defendant that he should be deemed to be a tenant under section 6B of the Act. According to the plaintiff, (i) defendants 1 and 2 are not 'mortgagees in possession�within the meaning of section 6B of the Act, (ii) no michavaram, is as such specified in the document Ext. A-1 and (iii) no amount is specified as michavaram in the document. 5. There is no definition of the term mortgagee in the Kerala Land Reforms Act. That of course is a term defined in the Transfer of Property Act. There was a controversy at one time as to whether the term mortgagee would refer only to the person who has taken the mortgage or whether the term could be taken to refer also to assignees of the mortgagee or his legal representatives. In several decisions courts construed the term mortgagee to mean not only the original mortgagee who entered into the transaction but also his successors and assignees. Ultimately section 59A of the Transfer of Property Act was incorporated into the parent Act by way of amendment. "59A. In several decisions courts construed the term mortgagee to mean not only the original mortgagee who entered into the transaction but also his successors and assignees. Ultimately section 59A of the Transfer of Property Act was incorporated into the parent Act by way of amendment. "59A. Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively."� The amendment, it would appear, was intended to set at rest the controversy as to the scope of the term mortgagee. It is not as if prior to such amendment the term mortgagee could not have included the legal representatives and assignees within its scope. That is how we understand the position by reason of the decisions of court prior to the incorporation of section 59A. 6. May be the term mortgagee or lessee is employed in a statute in the limited sense of the person who has entered into the mortgage or lease transaction or may be the term is employed in a wider sense as to include his assignees and legal representatives. There this is not expressed in the statute itself it may have to be gathered from the context and circumstances and particularly the nature of the statute in which such term is employed. 7. A Full Bench of this Court in Krishnan Nair v. Abdu 1964 K.L.T. 94 (F.B.) had occasion to consider the scope of section 11-A of the Agriculturists Debt Relief Act, 31 of 1958. That section applied to all subsisting melpattom granted by an agriculturist before the commencement of that Act for a period of two years or more. That enabled the person who had granted the melpattom to terminate the melpattom, notwithstanding the fact that the term had not expired, on deposit of the 1/3 outstanding. The question that arose in that case was whether the right to so terminate the melpattom was available only to the person who granted the melpattom or whether it was available to his successors and also assignees. "Melpattom" in that enactment meant any transaction relating only to the usufructs of trees for specified periods in recoupment of an advance made or promised. "Melpattom" in that enactment meant any transaction relating only to the usufructs of trees for specified periods in recoupment of an advance made or promised. In considering the scope of section 11-A Raman Nayar, J. as he then was, speaking for the Full Bench said: "In two of the cases, C.R.P. No. 1001 of 1961 and C.R.P. No. 247of 1962, the question arises whether the right conferred by section 11A is personal to the grantor or is available to those claiming under him, his heirs, legal representatives and assigns. The general principle is" and section 146 of the Civil Procedure Code embodies this principle that a 1964 K.L.T. 94 (F.B.) statute or other law conferring rights and imposing liabilities must be deemed to apply to representatives also unless the rights and liabilities are persona). The question then is whether, under the terms of section 11 A, the right is personal to the grantor. We think it is. What sub-section (2) of the section says is that the person who granted the melpattom shall, on application, be entitled to terminate the melpattom, and we find it difficult to read into the words, the person who granted the melpattom, the words, or his heirs, legal representatives or assigns. It, is fallacious to argue that because the grantor of a melpattom is, or can be regarded as, a debtor and according to section 2 (fff) of the Act the word debtor must be read as including his heirs, legal representatives and assigns, the heirs, legal representatives and assigns of a person who has granted a melpattom must be entitled to make an application under section 11A (2). Section 11A does not use the word debtor, all that section 2 (fff) requires is that the word debtor wherever it appears shall, unless the context otherwise requires, be lead as including the heirs, legal representatives and assigns of the debtor, and, even if the grantor of a melpattom be a debtor, section 2 (fff) is hardly relevant for the purpose of determining whether the words the person who granted the melpattom can be read as including the heirs, legal representatives and assigns of such a person. On a plain reading they cannot. On a plain reading they cannot. And the very fact that the Act defines melpattomdar mortgagee, debtor and creditor as including the heirs, legal representative and assigns of the melpattomdar, mortgagee, debtor and creditor respectively, without enacting a similar definition in respect of the person who granted the melpattom is an indication that the heirs, legal representatives and assigns of the grantor are not included within that expression. And, if we were to hold that persons claiming under the grantor would be entitled to the benefit even though they are not agriculturists provided the melpattom was granted by an agriculturist. For, the proviso to section 2 (fff) which requires the heirs, legal representatives and assigns of a debtor to be agriculturists if they are to be regarded as debtors would not be available. � It may be necessary in this context to point out that in section 11A there was indication that the right conferred was one which was restricted to the grantor of the melpattom. The statute itself was one which enabled the discharge of the debts in a manner more favourable to a debtor than that available to him under the general law. This decision by the Full Bench was followed by Velu Pillai, J. in 'Pylo Varkey v. Ayyappan Sankaran 1965 (1) K.L.R. 367 . The learned Judge applied the rule to the case of benefit claimed by an assignee of a mortgagor under section 11 of the Kerala Agriculturists Debt Relief Act 31 of 1958 to redeem the mortgage in accordance with the section. The question there was whether the assignee of the mortgagor could claim the benefit of discharging the debt under section 11 of Act 31 of 1958 or whether such benefit must be restricted to the original mortgagor. Earlier, this court, in Raghavan Nair v. Daniel 1959 K.L.T. 1232 had held that such a benefit was available even to an assignee of the mortgagor. But applying the dictum in Krishnan Nair v. Abdu 1964 K.L.T. 94 (F.B.) the court held that the assignee of a mortgagor was not entitled to the benefit of the Act. The learned Judge noticed that the consideration which weighed with the Full Bench was that while a melpattomdar was meant to include his assignee the grantor of a melpattom was not meant to include his assignee. The learned Judge noticed that the consideration which weighed with the Full Bench was that while a melpattomdar was meant to include his assignee the grantor of a melpattom was not meant to include his assignee. The learned Judge further observed that: "By parity of reasoning section 2 (fff) gives rise to a similar interpretation of the term mortgagor as distinct from the term mortgagee."� 8. A Division Bench of this Court had occasion to consider, the decision of Velu Pillai, J. in Pylo Varkey v. Ayyappan Sankaran 1965 (1) K.L.R. 367 in the decision in Subramonia Iyer v. Thomman George 1966 K.L.R. 87. The Bench held that the right granted to the mortgagor in section 11 was a right confined to him personally and that it was not to be extended to his heirs, legal representatives and assigns. In taking this view, the learned Judges noticed that if the expression "mortgagor" is so construed as to include the heirs, legal representatives and assigns the benefit will accrue to them even if they are not agriculturists. 9. We are referring to these decisions only to indicate that no uniform rule as to whether expressions such as mortgagee and lessee occurring in statutes should be taken to include their assignees and successors can be laid down. The determination must necessarily depend on the context and the setting of the provision in the enactment in which the term occurs. 10. Section 6B along with certain other sections were brought into the parent Act I of 1964 so as to make available the benefit of the Kerala Land Reforms Act to persons who would not otherwise be tenants within the meaning of the definition of that term in section 2 (57) of the Act but who the legislature wanted, nevertheless, to be treated as tenants. A mortgagee with possession would not be a tenant within the meaning of the term in section 2 (57) of Act 1 of 1964. All the same the Amendment Act provided that he will be a tenant if the immoveable property was situate in an area to which Malabar Tenancy Act was extended and he was holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing such transaction or if there is provision in the document for renewal on the expiry of the period. Evidently the idea would not have been to leave out from the ambit of this provision those who claimed to be in possession under their predecessors-in-interest for several years, confining the benefit only to the original mortgagees in possession. Normally, in the generality of cases, possession after a few years would pass to legal representatives and in some cases to the assignees and there does not appear to be any purpose in providing in a statute of this nature exclusion of such persons from the benefit of the provision and limiting it to the original mortgagees. Apart from this the statute affords ample evidence of the legislature having considered the term mortgagee with possession as not only referring to the original mortgagee, but his successors and assignees also. Reference may be made in this context to section 4-A of the said Act. It may be profitable to extract the section here. Apart from this the statute affords ample evidence of the legislature having considered the term mortgagee with possession as not only referring to the original mortgagee, but his successors and assignees also. Reference may be made in this context to section 4-A of the said Act. It may be profitable to extract the section here. "4-A. (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 continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement: Provided that a mortgagee or lessee falling under this clause shall not be deemed to be a tenant if he, or, where he is a member of a family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or (c) the land comprised in the mortgage was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949, would have applied if that Act had been in force at the time of mortgage and (i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and (ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement. The benefit of section 4-A is available to a mortgagee with possession of land. Explanation III provides that the term mortgagee or lessee shall include the predecessor-in-interest of the mortgagee or lessee for the purpose of clause (b). The benefit of section 4-A is available to a mortgagee with possession of land. Explanation III provides that the term mortgagee or lessee shall include the predecessor-in-interest of the mortgagee or lessee for the purpose of clause (b). Clause (b) deals with mortgagee or lessee constructing a building for his own residence and occupying the same for a period of not less than twenty years. Explanation III makes it clear that such mortgagee or lessee includes his predecessor-in-interest, that is, those through whom he claims. If reference in the section to the mortgagee is to be taken to be the original mortgagee there is no scope for such inclusion for there would be no predecessor-in-interest for the original mortgagee or lessee. Therefore the Explanation very clearly indicates that the term mortgagee or lessee in clause (b) of section 4-A (1) refers to the person in possession as mortgagee or lessee on the date of the commencement of Act 35 of 1969. By virtue of this Explanation any predecessor-in-interest of such person, commencing from the original mortgagee or lessee, would also be brought within the expression. Similar is Explanation VI which also refers to mortgagees, or lessees as including predecessor-in-interest of the mortgagee or lessee for the purpose of clause (c). It is evident, therefore, that the term mortgagee or lessee as used in section 4-A conceives not only the original mortgagee or original lessee in possession on 1st January 1970 but any successor-in-interest who happened to be in possession on 1st January 1970. He may become such successor-in-interest either by assignment or by inheritance. Hence we see no warrant in the argument of counsel for the plaintiff who relied on the very Explanations in section 4-A in support of his case that section 4-A was intended to refer only to a mortgagee or lessee who entered into the mortgage or lease transaction and not his successors or assigns. That being the scheme of these provisions relating to deemed tenants and by parity of reasoning we find the scope of the term mortgagee with possession in section 6-B also to be similar. 11. We adverted to certain decisions earlier in this judgment. We have necessarily to remember that in the case of a statute conferring benefit upon debtors who satisfy certain conditions such benefit must normally be available to them personally. 11. We adverted to certain decisions earlier in this judgment. We have necessarily to remember that in the case of a statute conferring benefit upon debtors who satisfy certain conditions such benefit must normally be available to them personally. It is their qualification as debtors of the specified category that entitles them to the benefit of the Act, and therefore the beneficial provisions cannot enable their assignees or legal representatives to get such benefit merely because they happen to be successors- in-interest. But the general principle is, as stated by the Full Bench in Krishnan Nair v. Abdu 1964 K.L.T. 94 that a statute or other law conferring rights and imposing liabilities must be deemed to apply to representatives also unless the rights and liabilities are personal. The question then is whether section 6-B confers a personal right. When section 6-B confers the benefit of the claim of tenancy to mortgagees of a particular class such benefit is conferred because of possession in the character of holding under the particular class of mortgage and if so there is no reason to hold that the benefit is in any way personal to the original grantor and not his successor who is in possession on 1st January 1970 and has been in possession as such earlier too. In the context and circumstances we cannot hold that section 6-B concerns only those mortgagees with possession who had entered into the original transaction and not their successors and assignees. Any successor-in-interest who is holding under the mortgage on 1st January 1970 is entitled to the benefit of the Act. 12. We now pass on to the next point. According to counsel for the plaintiff what is payable by the mortgagee is mentioned in Ext. A-1, which is the document evidencing the transaction, as purapad and not as michavaram and therefore at any rate section 6-B will have no application. It is true that reference has been made to the payment as purapad in the document. We have extracted earlier the relevant passage in Ext. A-1. It is evident therefrom that on default of payment the defaulted arrears, which is referred to as michavaram, is stipulated as recoverable, thereby indicating that the payment under the document is referred to as purapad as well as michavaram both being treated as having the same meaning so far as the document is concerned. A-1. It is evident therefrom that on default of payment the defaulted arrears, which is referred to as michavaram, is stipulated as recoverable, thereby indicating that the payment under the document is referred to as purapad as well as michavaram both being treated as having the same meaning so far as the document is concerned. If that is so, it is difficult to accept the case of the plaintiff that there is no specification of the payment to be made as michavaram in the document. Our attention has been drawn to Ext. A-2 a subsequent document executed between the parties enhancing the purapad payable to 713 paras of paddy per annum. The parties cannot have a case that that is the document evidencing the transaction between the parties. The parties held under the earlier document, namely Ext. A-1 Karipanayam. The annual payment was altered under Ext. A-2 by enhancing it from 500 paras to 713 paras. That makes no difference. Evidently the court below was not right in holding that the document Ext.A1, if analysed, would show that the liability has been specified as purapad and not as michavaram of course the court below is light to the extent it mentions that the document specifies the payment as purapad. But it is not correct to say that the document has not specified it as michavaram. 13. Learned counsel Sri T. L. Viswanatha Iyer wanted us to read Ext. A-1 in such a manner as to characterise the reference to purapad as a specification of the nature of the payment and the later reference to michavaram in the same document as a mere matter of description and not specification. The benefit of deemed tenancy is conferred on a mortgagee with possession in the Malabar area who satisfied certain other requirements too. The legislature was roping in certain transactions which would not, otherwise, be leases within the purview of the Act. Stipulations for payment of michavaram in the case of such mortgagees with possession is taken to be the qualifying factor. But whether there is stipulation for payment of such michavaram or not is not left to be decided by reference to the definition of the term michavaram in the Act. The specific use of the term michavaram in the document to refer to the payment is necessary. But whether there is stipulation for payment of such michavaram or not is not left to be decided by reference to the definition of the term michavaram in the Act. The specific use of the term michavaram in the document to refer to the payment is necessary. The fact that the payment is specifically referred to as michavaram is sufficient, and it appears to us that it does not matter even if there is reference to the payment also as purapad. 14. The only other point raised in regard to Ext. A-1 by the learned counsel for the plaintiff is that Ext. A-1 stipulation is not of any amount payable as michavaram but mainly paddy. According to him section 6-B would apply only to cases where the payment of michavaram specified is by way of money. That according to him is to be so found by reason of the use of the word amdunt in the section. Michavaram is defined in section 2 (36) as meaning money or produce or both specified as michavaram in the document. Therefore michavaram may be in money or in produce. The amount of michavaram would therefore be either the amount of paddy or the amount of money or both. If that be so when section 6-B employs the term amount to refer to michavaram we can only read it as amount of money or produce or both specified as michavaram in the document. We see no merit in this contention too. 15. We therefore hold that defendants 1 and 2 who are assignees of the Karipanayam Ext. A-1, are entitled to succeed in their plea that the transaction is to be deemed to be a tenancy by reason of section 6-B of Act 1 of 1964. That means redemption cannot be granted. In view of this, it is not necessary to consider whether section 4-A of Act 1 of 1964 would apply to the transaction or whether the real nature of the transaction can be said to be a lease. 16. It is agreed that in case we find that defendants 1 and 2 are to be found deemed tenants, then the plaintiff appeal must fail. 16. It is agreed that in case we find that defendants 1 and 2 are to be found deemed tenants, then the plaintiff appeal must fail. That is because the question whether defendants 3 and 5 to should be deemed to have lost the benefit of the tenancy by reason of their having obtained the assignment of the mortgage right of defendants 1 and 2 and consequent merger of their interest as lessees from the mortgagee with the mortgage right may not arise at all when once it is found that defendants 1 and 2 are themselves to be deemed tenants under Act 1 of 1964. Therefore in view of our finding the appeal by the plaintiff has to fail while appeal by the second defendant has to succeed. The suit must fail except in regard to the purapad claimed as payable. The lower court, in the light of its finding that the transaction is a mortgage liable to be redeemed has directed the question of accounting to be considered at the time of passing the final decree. In spite of the finding in these appeals that the mortgage is deemed to be a tenancy the question of the right of the plaintiff to get a decree for purapad up to 1st January 1970 the date when the mortgage by reason of section 6-B is deemed to have become a tenancy has to be examined. There is no scope for a preliminary decree now in the view we have taken as to the right of redemption. The question as to whether any purapad is payable and if so for what period is a matter which requires further examination by the trial court below and therefore for that limited purpose the case has to go back to the trial court. Hence while we allow A.S. 64 of 1971 holding that the mortgage Ext. A-1 cannot be redeemed and dismiss A.S. 123 of 1971 on the same ground, we direct further that the matter will stand remitted to the lower court for the limited purpose of determining the question of the claim for recovery of purapad in terms of the plaint. In the light of our decision here the question will be gone into by the court below and disposed of in accordance with law. The question of right to redemption will be considered as having been finally decided by this judgment. In the light of our decision here the question will be gone into by the court below and disposed of in accordance with law. The question of right to redemption will be considered as having been finally decided by this judgment. In the circumstances of the case we direct the parties to suffer costs in these appeals.