Krishnan v. Narayana Pillai — 1976 DIGILAW 227 (KER)

JUDGMENT Chandrasekhara Menon, J. 1. acre 27.976 cents of land in survey-No. 361/3 of Chenkal Village in Trivandrum District was acquired by the State. All amount of Rs. 5,458.61 was awarded as compensation. The property was taken possession in pursuance of the acquisition in 1963. Dispute arose between the parties with regard to the claim for compensation. Therefore reference was made by the Land Acquisition Officer to the Trivandrum Sub Court having jurisdiction in the matter under S.32 of the Land Acquisition Act. 2. Plaintiffs 8 and 9 in the court below claimed compensation of 53.280 cents of land and plaintiffs 10, 11 and 35 in respect of 15.444 cents, 19.226 cents and 22.747 cents respectively. Plaintiffs 58 to 63 claimed 1/6th right as assignees of a joint family by name Thenmavana Matom and 64th plaintiff claimed 1/6th right as assignee of the same family. 3. The Land Acquisition Court in the first instance disposed of the reference finding that the whole property belonged to the tarwad of the plaintiffs 1 to 50 and the Matom had no manner of right over the property. Thus the claim of the plaintiffs 58 to 63 and 64 was rejected. The aggrieved parties took up the matter in appeal before this court as A.S. No. 310 of 1970 and A.S. No. 340 of 1970. This court allowed the appeals remanding back the matter to the Land Acquisition Court for consideration of the question whether Ext. P-3 mortgage gave any title to the Matom. 4. Pursuant to remand the lower court has now repelled the contentions of the plaintiffs 8, 9, 10, 12 and 35 holding that Ext. P-3 mortgage is not barred by limitation and the Matom's right to redeem was subsisting at the time of acquisition. The respondents namely plaintiffs 58 to 63 and 64 were held by the lower court to be entitled to the share of the compensation claimed by them as successors in interest of the Matom. Respondents 1 to 6 namely plaintiffs 58 to 63 were held to be entitled to 1/6th share while the 7th respondent, the 64th plaintiff was found to be entitled to another 1/6th share. The lower court awarded in consequence an amount of Rs. 855.70 in favour of respondents 1 to 6 and an equal sum in favour of the 7th respondent. The lower court awarded in consequence an amount of Rs. 855.70 in favour of respondents 1 to 6 and an equal sum in favour of the 7th respondent. This has led to the present appellants namely plaintiffs 8, 9, 10, 12 and 35 filing this appeal before this court. 5. The short question for this court to consider is whether the respondents who were successors in interest of Thenmavana Matom had subsisting right to the equity of redemption of Ext. P-3 mortgage. Ext. P-3 is the copy of the mortgage and kuzhikanom styled as Otti and kuzhikanom dated 27th Alpasi, 1076 (M.E.) executed by Padmanabhar of Thenmavana Matom in favour of three persons, Mallan Pillai, Narayana Pillai and Velayudhan Pillai of Karayakulangara house in respect of various properties for a consideration of 1775 fanams. Ext. P-3(a) is the Malayalam copy of this document. It is stated therein that this was being executed in renewal of an earlier Otti and kuzhikanom transaction. There is provision for effecting improvements in the property and for payment of the value of improvements at the time of redemption. It would be useful to extract the relevant portion in the document: "(MALAYALAM)............................" 6. It is the admitted case of the parties that the acquired property is portion of the properties covered by Ext. P-3. The court below went into the question whether Ext. P-3 preserved the title of the Matom and whether the Matom had an existing share in the jenmom right at the time of acquisition. The learned Additional Subordinate Judge held on the basis of certain rulings of the Travancore-Cochin High Court and of this court that in a mortgage and kuzhikanom transaction where there is a provision for effecting improvements by the mortgagee and for payment of the value of improvements by the mortgagor, the mortgagor is entitled to redeem the mortgage only after a period of 12 years from the date of transaction. In other words, the mortgagee is entitled to be in possession for 12 years from the date of such mortgage and kuzhikanom deed and the mortgagors cause of action for redemption would arise only after that period of 12 years. 7. Mr. C. K. Sivasankara Panicker, learned counsel for the appellants, vehemently contended before us that Ext. In other words, the mortgagee is entitled to be in possession for 12 years from the date of such mortgage and kuzhikanom deed and the mortgagors cause of action for redemption would arise only after that period of 12 years. 7. Mr. C. K. Sivasankara Panicker, learned counsel for the appellants, vehemently contended before us that Ext. P-3 mortgage is barred by limitation at the relevant date and the equity of redemption of the Matom to which right the respondents succeeded had been lost at the time of acquisition. He contended that the court below ought to have held that the mortgagor had lost the title of the acquired property at the relevant time. According to him the court below ought to have considered the fact that the compensation amount covered the value of improvements and the mortgagor is not entitled for the same. He points out that the respondents right if any is only that of the mortgagor and hence the amount awarded in favour of the respondents is excessive. 8. In considering the question we may in the first instance point out that there is no case here that Ext. P-3 evidences a lease transaction. Admittedly it is a usufructuary mortgage. Then we have to consider whether the lower court has gone wrong in coming to the conclusion that the mortgagors' right over the equity of redemption had been lost at the time of acquisition. The mortgage was in the year 1076 M.E. that will be corresponding to the year 1900. The acquisition was in 1963. If the mortgagor had right to redeem without waiting for a period of 12 years from the date of transaction, then the limitation will run from the date of execution of the mortgage and the 60 years period of limitation would expire by 1960. On the other hand if the mortgagor is entitled to redeem the mortgage only after 12 years of the date of transaction, certainly, at the time of acquisition the mortgagors' right to redeem had not been barred and the mortgagors' successors in interest are entitled to their share of compensation. 9. On a careful consideration of the questions involved in the appeal, we find that the appellants have not made out any case for our intervention with the Trial Court's judgment and decree. 9. On a careful consideration of the questions involved in the appeal, we find that the appellants have not made out any case for our intervention with the Trial Court's judgment and decree. A Full Bench of the Travancore High Court in Gnana Prakasom v. Samuel (XIII TLJ 36) held that: "Where an Otti deed or puravaipa deed contains a direction empowering the mortgagee to plant trees and make other improvements on the property mortgaged, coupled with or implying a promise by the mortgagor to compensate the mortgagee for such improvements, the combined effect of the direction and the promise is to confer on the mortgagee the right to remain in possession for a period of 12 years, in the absence of any other clause in the instrument indicating an inconsistent or contrary intention. When the mortgage deed relates to both garden lands and wet lands, the same rule holds good, notwithstanding that plantations only are contemplated and provided for therein, unless the mortgage of the garden lands and the mortgage of the wet lands are separable from each other for the purpose of redemption and the intention to effect such severance is expressed in the instrument in unequivocal language." 10. A refinement to this principle was however expressed in Devasia v. Kesavan ( XXVI TLJ 383) wherein K. P. Gopal Menon, J. speaking for a Division Bench of the Travancore High Court pointed out: " The general principle that 'the right of redemption being co-extensive with the right of foreclosure, where, the mortgagee has the right for foreclosure at any time, the courts will refuse to give effect to a unilateral agreement, postponing the mortgagor's right to redeem' enunciated by Chose on Mortgage, 5th Edition, page 243 has been accepted by our courts in Chinnan Vyravan Asari v. Appoli Moris Pereira (30 TLR 258) and that case is on all fours with the one under consideration. The provision in a mortgage deed to make improvements would give a term of 12 years only where there is no covenant to the contrary, but where the mortgage deed expressly stated, that the mortgagee could demand the mortgage amount at any time made the contract different and at any time by payment of mortgage money, redemption could be had." 11. In Vyravan Asari v. Pereira ( XXX TLR 258), the document that came up for consideration contained a provision enabling the mortgagee to demand the mortgage money three years after the date of document. It was held that this provision imported a covenant on the strength of which the mortgagor could also seek to redeem the property after the expiry of the said period of three years. 12. Sankaran, J. speaking for a Division Bench of the Travancore-Cochin High Court said in Chellappan v. Ramakrishna Pillai. (1950 Travancore Cochin Law Reports 137): "The plaint Otti and kuzhikanom deed does not expressly provide for any definite period in favour of the mortgagees. But it is contended on behalf of the mortgagees that the tenure created under the document is an Otti and kuzhikanom, the necessary incident following from it is that the mortgagee would be entitled to be in possession of the property for a period of at least 12 years. No doubt the law in Travancore has recognised such a right in favour of a kuzhikanom tenant. Govindan v. Swamiar 7 TLR 44, Vyravan Asan v. Pereira 30 TLR 258, and Devasia v. Kesavan 26 TLJ 383 are in support of this position. But it is clear from these rulings themselves that such a period of 12 years would be available to the mortgagee only in the absence of an express or implied contract to the contrary contained in the instrument itself. In the document construed in Vyravan Asan v. Pereira 30 TLR 258 there was a provision enabling the mortgagee to demand the mortgage money three years after the date of the document. It was held that this provision imported a covenant on the strength of which the mortgagor could also seek to redeem the property after the expiry of the said period of three years. The provision in the document which came up for consideration in Devasia v, Kesavan 26 TLJ 383 was a general one and was to the effect that the mortgagee could demand the mortgage amount at any time. This provision was held to imply a reciprocal obligation also on the part of the mortgagee to surrender possession of the property on redemption being sought for by the mortgagor. The document in the present case has to be examined in the light of these principles. This provision was held to imply a reciprocal obligation also on the part of the mortgagee to surrender possession of the property on redemption being sought for by the mortgagor. The document in the present case has to be examined in the light of these principles. As already stated no period is fixed under it by express terms. The benefit of the 12 year period is claimed by the mortgagee merely as an incident following from the description of the property as an Otti and kuzhikanom deed. Even though the document is thus described there is an express provision in it that whenever the property is redeemed on demand being made by the mortgagor the mortgagee will be paid the mortgage amount as well as the value of his improvements. This is the operative portion of the covenant between the parties to the document. Without importing something more into this covenant it cannot be construed to mean that the right to demand redemption expressly created under it could be exercised by the mortgagor only after the expiry of 12 years from the date of the document. The straight and plain meaning of the covenant is that the mortgagor could demand redemption at any time. In view of such an express covenant contained in the document it cannot be said that the claim for redemption made in the present suit instituted four years after the date of the document is premature." 13. We might point out that in Sabarimuthu Nadar v. Marthandan Nadar (AIR 1951 TC 170) it was laid down by another Division Bench of the Travancore-Cochin High Court that where a mortgage deed which though not styled as a kuzhikanom document but provision is made therein allowing the mortgagee to plant trees and claim compensation therefor from the mortgagor at a certain rate, the effect of the provision is to confer on the mortgagee the right to remain in possession for a period of 12 years and the mortgagor's right to redeem would arise only after the expiry of the said 12 years of the mortgage deed. One of the learned Judges who was a party to this decision - K. S. Govinda Pillai, J., speaking for another Division Bench of the same High Court points out in Bhageerathi Pillai v. Kochan Nadar (AIR 1952 TC 286) following 1950 TCLR 137 and distinguishing XIII TLJ 36 that a provision in a mortgage deed styled as Otti and kuzhikanom, that if the mortgagee planted trees that would be compensated for at the time of redemption on demand does not confer on the mortgagee a right to hold property for 12 years when there is a provision for surrender on demand which allows the mortgagor to ask for redemption at any time after the execution of the document. 14. As the court below points out a learned Judge of this court has said in Mathai v. Narayanan Unnithan ( 1961 KLT 13 ) that the appendage of the expression kuzhikanom to a possessory mortgage or a lease connoted that the mortgagee or tenant under that document would be entitled to hold the property for a period of 12 years and to make improvements by way of plantations thereon and to claim compensation for such improvements at redemption. 15. It might be noted that in the instant document concerned there is really no provision for redemption on demand. Therefore the mortgagee was entitled to continue in possession for 12 years before the mortgagor could have exercised the right of redemption. The mortgagor's cause of action for redemption would arise only after that period of 12 years. In this view the lower court is right in stating that the right of redemption of the concerned mortgage was not barred on the date of acquisition of the property. The mortgage, Ext. P-3 subsisted on the date of taking possession of the acquired property with the Government and the Matom would have title over 1/3rd share of the equity of redemption on the basis of Ext. P-3. 16. In regard to the value of improvements and apportioning the share due to the claimants what the lower court stated was as follows: "Plaintiff's Nos. 8 and 9 have claimed 53.280 cents, 10th plaintiff has claimed 15.444 cents, 12th plaintiff has claimed 17.226 cents, 35th plaintiff has claimed 22.747 cents and 36th plaintiff has claimed 3.861 cents. Though the 50th plaintiff had claimed about 25 cents, what remains is only 14.877 cents. 8 and 9 have claimed 53.280 cents, 10th plaintiff has claimed 15.444 cents, 12th plaintiff has claimed 17.226 cents, 35th plaintiff has claimed 22.747 cents and 36th plaintiff has claimed 3.861 cents. Though the 50th plaintiff had claimed about 25 cents, what remains is only 14.877 cents. So the area of 14.877 cents belongs to the 50th claimant and the above said areas claimed by the respective plaintiffs belong to them. So the compensation due to the above said plaintiff's has to be apportioned to them in the proportion of the extent of their respective shares. The total compensation awarded by the Land Acquisition Officer is Rs. 5,458.61 ps. The property acquired is admittedly portion of the properties mortgaged under Ext. P-3 mortgage. When Ext. P-3 mortgage was subsisting on the date of taking possession of the property by the Sirkar, the mortgage amount as well as the value of improvements would have naturally belonged to the mortgagees. But there is no specific claim regarding the value of improvements. Anyhow it is seen from the records of the Land Acquisition case forwarded to this court that the Land Acquisition Officer has valued the trees that stood in the acquired property at Rs. 92.50 ps. and the building at Rs. 175. The value of improvements and solatium on it would come to Rs. 307.62 ps. The mortgage amount under Ext. P-3 is 1775 fanams. The total extent of the property covered by Ext. P-3 would come to about 19 acres and the actual extent of the acquired property is only 1.27 975 acres. So the proportionate mortgage amount in respect of the acquired property would come to Rs. 16.80 ps. So this amount as well as Rs. 307.62ps. being the value of improvements and its solatium is due to the plaintiffs in possession of the acquired property. Of course plaintiffs in possession are entitled to get the value of 2/3rd shares of the equity of redemption, plaintiffs 58 to 63 are entitled to get the value of 1/6th share of the equity of redemption and the 64th claimant is entitled to get the value of 1/6th share of the equity of redemption. The value of the equity of redemption of the acquired property is Rs. 5,134.19 (being the compensation awarded less Rs. 324.42). Therefore, it follows that plaintiffs 58 to 63 are entitled to get Rs. The value of the equity of redemption of the acquired property is Rs. 5,134.19 (being the compensation awarded less Rs. 324.42). Therefore, it follows that plaintiffs 58 to 63 are entitled to get Rs. 855.70 ps., 64th plaintiff is entitled to get Rs. 855.70 ps., that plaintiffs in possession of the acquired property are entitled to get on the whole Rs. 3,747.21 ps. and that they are entitled to get it apportioned in proportion to the areas in their possession." 17. We do not find anything erroneous in this conclusion arrived at by the lower court. Therefore we confirm the judgment and decree made by the lower court and dismiss the appeal with costs.