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1976 DIGILAW 279 (KER)

KALI KARTHIYAYANI v. PAPPU

1976-12-28

GOVINDAN NAIR, P.JANAKI AMMA, P.SUBRAMONIAN POTI

body1976
Judgment :- 1. The facts of this case have been stated in the order of reference made by the Division Bench that heard the appeal in these terms. "The appellant had instituted the suit, from which the appeal arises, for redemption of a mortgage of property which belonged to her tarwad, executed in the year 1086. The suit was brought forward on the averment that a subsequent sale of the equity of redemption of the property is invalid and not binding on the appellant. The suit numbered as O.S. 173/1120 of the Munsiff Court of Mavelikara was first decreed by the trial court; but on appeal as A. S. No. 254/1124 of the District Court of Mavelikara, the appeal was allowed dismissing the suit on the ground that there was no prayer for setting aside the sale executed by the members of the tarwad (appellant was at that time a minor). In Second Appeal as S. A. 796/51 before the Travancore-Cochin High Court, the appellant was allowed to amend the plaint so as to impugned the sale deed. After remand the plaint was amended including a prayer to set aside the sale deed in favour of the respondents. The trial court allowed the amendment and after hearing the parties, by judgment, dated 22nd December, 1958 decreed the suit setting aside the sale deed in favour of the respondents. On appeal by the respondents before the Sub Court, Mavelikara as A. S.144/59, the appellate court by judgment, dated 30th December 1961 restricted the right of the appellant to the share of 3/12 in the suit properties and allowed recovery of that share on partition by metes and bounds after payment of the proportionate mortgage amount covered by the mortgage deed of 1086. The respondents took up the matter before this court as S. A. 610/62, while the appellant filed an appeal as S. A. 403/62 questioning restricting recovery only to 2/12 share of the suit properties. Both the appeals were dismissed by a common judgment, dated 30th September, 1965 by which the appellant's right to recover the 3/12 share after payment of the proportionate amount charged on the property was upheld. Both the appeals were dismissed by a common judgment, dated 30th September, 1965 by which the appellant's right to recover the 3/12 share after payment of the proportionate amount charged on the property was upheld. Final decree was passed on 28th March 1969 whereby the appellant was allowed to recover the plot of land demarcated in the plan prepared by the Commissioner and accepted by the final decree after payment of proportionate amounts charged on the property and value of improvements thereon. Consequent on the final decree, application for execution was filed as E. P. No. 277/69 for recovery of the property after deposit of the amount, as required in the final decree. The 3rd defendant, respondent No. 1. filed objection to delivery of property claiming fixity of tenure as deemed tenant under S.4A of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (shortly stated the Act). Both the lower courts Execution court as well as the lower appellate court upheld the objection holding that respondents are mortgagees in possession for more than 50 years and therefore entitled to claim the status of deemed tenant as per the provisions of the Act. Therefore, the plaintiff has come up in second appeal." 2. S.4-A (1) (a) of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (for short the Act) the relevant provision of law which has to be construed for deciding one of the contentions raised in this second appeal, is in these terms: "4-A. Certain mortgagees and lessees of mortgagees to be deemed tenants. S.4-A (1) (a) of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (for short the Act) the relevant provision of law which has to be construed for deciding one of the contentions raised in this second appeal, is in these terms: "4-A. 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 continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (amendment) Act, 1969; or" We have not extracted the other parts of the section because those parts are not material for the purpose of this case and no point had been made by counsel appearing on both sides with reference to any of the provisions in those parts. The short aspect to be considered with reference to S.4-A (1) (a) is whether the section means that the mortgagee or lessee must hold the land comprised in the mortgage in his capacity as a mortgagee, or lessee of a mortgagee, for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act. 1969; or whether it would be sufficient that the land continued to be in the possession of a person who was originally a mortgagee, with possession of land or of a lessee of such a mortgagee. In other words, the question is whether a mortgagee with possession of land who had ceased to be a mortgagee can add on his possession of the land after such cessation of the relationship of mortgagor and mortgagee and whether the possession of lessee of a quondam mortgagee after the cessation of the mortgagor-mortgagee relationship can add on the possession after such cessation for calculating the fifty years under S.4A (1) (a). 3. 3. The second question that arises for consideration is whether in view of the provisions in S.125 (3) of the Act this Court is obliged to send the matter for decision to the Land Tribunal since the question whether the appellant is a tenant or not arises in the case. The contention that the case ought to be referred to the Land Tribunal was not taken before the first court nor even before the first appellate court. It was urged for the first time in second appeal before this Court. We shall deal with this aspect first. The matter has been fully considered in a recent Full Bench decision of this Court in Alavi v. Radha Varasyaramma 1976 KLT. 691 and this Court has held that non-compliance by the trial court with S.125 (3) of the Kerala Land Reforms Act would not make the decree passed by that court after entering necessary findings on all the issues including the one relating to the rights of a tenant and whether a person claiming to be a tenant was a tenant or not, a nullity. If the point was taken at least before the appellate court, the appellate court may, in given circumstances, set aside the decree of the trial court and remit the case to the trial court for compliance with S.125 (3). However, it is not obligatory on the part of the appellate court to do so. It has full powers to decide the question itself. This is clear from sub-section (6) of S.125 of the Kerala Land Reforms Act. If no point had been taken before the appellate court that S.125 (3) had not been complied with by the trial court, the point ought not to be permitted to be taken in the second appeal for the first time. In cases where the point had been taken before the appellate court, but had not been accepted by the appellate court, the question might arise before the second appellate court whether the decision of the first appellate court not to remit the case to the trial court to enable the trial court to make a reference to the Land Tribunal was a just and proper decision in the circumstances of the case. No. such question arises in this case. The point had not been taken before the trial court and was not taken even before the appellate court. No. such question arises in this case. The point had not been taken before the trial court and was not taken even before the appellate court. No question of setting aside the decision of the lower courts therefore arises in this appeal. AH that we have to do is to consider the first question raised in this appeal relating to the interpretation of S.4-A (I) (a) to which we have already adverted to. We shall therefore now turn to that point. 4. It is clear from S.4-A (1) (a) that a mortgagee or lessee must have held the land for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. This Court interpreted the words immediately preceding the commencement of the Kerala Land Reforms Amendment Act, 1969 to mean that the mortgagee "or lessee must have been in possession of the land on the date on which the Kerala Land Reforms (Amendment) Act, 1969 came into operation, that is, on January 1970. (See Devaki Amma v. Ramakrishna Pillai 1974 KLT. 787). In view of the fact that the mortgagee had been dispossessed before 1st January 1970 we further held in that case that the person dispossessed was not a tenant coming under S.4A and that notwithstanding the wording of S.13A of the Act he is not entitled to recovery of possession. S.13A (1) may be extracted: "13A. Restoration of possession of persons dispossessed on or after 1st April, 1964 (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, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964. Restoration of possession of persons dispossessed on or after 1st April, 1964 (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, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964. such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land: Provided that nothing in this sub-section shall (a) apply in any case where the said land has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or (b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act." 5. We had occasion to consider the words 'if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession', in two decisions of this court the earlier one, a Division Bench decision in Devaki Amma v. Ramakrishna Pillai 1974 KLT 787 and the latter one, a Full Bench decision in CRP. No. 411 of 1973 dealing with S.6A of the said Act read with the words in S.13A which we have extracted above. In the earlier Division Bench decision we took the view that: "The type of tenancy created by S.4-A (1) (a) is somewhat peculiar. A person who cannot be considered to be a tenant according to the ordinary concept has been made a tenant under that sub-section and so the legislature in its wisdom might have restricted its application only to such cases where a mortgagee continued to hold the property at the date of the commencement of the Amending Act. Certainly we cannot assume that the purport of the section, as it is worded, had not been fully grasped by the legislature. Soit seems to us to be clear that the legislature intended that this new provision must have effect only from the date of commencement of the Act. Certainly we cannot assume that the purport of the section, as it is worded, had not been fully grasped by the legislature. Soit seems to us to be clear that the legislature intended that this new provision must have effect only from the date of commencement of the Act. This view is fortified by the fact that the provision in S.4A (1) (a) has not been made retrospective by any express words in S.13A The words occurring in S.13A cannot be construed as extending the operation on the amending Act to an earlier date than the date on which it came into operation or the date from which it commenced for, to give such a meaning to those would have the effect of altering the very words of S.4A (1) (a). If that was what was intended, there must be much clearer provision." When we dealt with S.6A of the Act in the Full Bench decision, the wording of which is entirely different from the wording of S.4A, and on further consideration of S.13A, we came to the conclusion that in order that the intention of the legislature may not become infructuous, it is necessary to understand that the new sections introduced by Act 35 of 1969 creating deemed tenants must be taken to have been in operation on the dates of dispossession, such dispossession having taken place on or after 1st April 1964. 6. In Para.6 of the Judgment in CRP. No. 411 of 1973, we formulated the questions that arose for decision in these terms: "(1) Whether by virtue of S.13A by necessary implication the new sections that have been introduced by Act 35 of 1969 defining deemed tenants must betaken to have come into operation or should be taken to have been in existence on the date of dispossession and (2) whether there will be any warrant for attributing to the words of the section a meaning different from that conveyed by understanding the words in their natural literal grammatical sense." Regarding the first point we came to the conclusion that "we have to take it that those provisions were in existence on the date of dispossession and therefore in force or in operation" and we further added that "to this extent, with respect, the observation in Devaki Amma v. Ramakrishna Pillai 1974 KLT. 787, that the new section introduced by Act 35 of 1969 cannot be deemed to have come into operation on the dates of dispossession by virtue of the operation of S.13A, cannot be accepted". But dealing with the second point, we made it perfectly clear that if the sections which defined 'deemed tenants' contained words which, applying their natural, grammatical meaning, insisted on possession till a certain date, the fact that the section can be taken to have been in force or operation from the dates of dispossession will not give the person dispossessed a right to demand re-delivery. We specifically referred to S.4A(1)(a) and quoted that section as an example where the section insisted on possession till a certain date and observed that the court would not be justified in rewriting the section and substituting the date of dispossession for the date of commencement of the Amending Act 35 of 1969. We then said that that was the main reason why relief was refused in Devaki Amma v. Ramakrishna Pillai 1974 KLT. 787. It is thus clear that the main point decided in Devaki Amma v. Ramakrishna Pillai 1974 KLT. 787 has been affirmed by the Full Bench decision in CRP. No. 411 of 1973 and that is still, the law on the subject. So it is clear that in order to satisfy S.4A the person claiming to be a mortgagee, or lessee of a mortgagee, must have been in possession for a period of 50 years or more immediately preceding the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969, namely, 1st January 1970. The property even now is in the possession of the appellant is not disputed. What is contended by the respondents is that the appellant was not in possession as mortgagee and the argument was that the section contemplates that the person claiming the benefit of this section roust have continued in possession as a mortgagee or as a lessee of such a mortgagee for the requisite period reckoned backwards from 1st January 1970. In other words, the submission was that if the possession as mortgagee or as lessee of a mortgagee, had ceased before Ist January 1970 the section is not attracted. There is a ruling of this Court reported in Varghese Samuel v. Varkey Abraham 1975 KLT. In other words, the submission was that if the possession as mortgagee or as lessee of a mortgagee, had ceased before Ist January 1970 the section is not attracted. There is a ruling of this Court reported in Varghese Samuel v. Varkey Abraham 1975 KLT. 372 wherein Viswanatha Iyer, J. took the view that unless the mortgagee continued in possession till 1st January 1970 as mortgagee, he will Hot be entitled to the benefit of S.4A(1)(a). The learned judge relied on the decision of the Supreme Court reported in Prithi Nath Singh v. Suraj Ahir AIR. 1963 SC. 1041 for the proposition that when the mortgage money has been paid up by the mortgagor to the mortgagee or validly tendered or deposited in Court pursuant to a decree for redemption the mortgage comes to an end and the right of the mortgagee as such also ceases. The principle laid down by the Supreme Court has to be followed by this Court. There was no challenge of the principle laid down by the Supreme Court. A challenge before this Court can only be made to facilitate an appeal to the Supreme Court. But there was no challenge even for that purpose. In execution the mortgage money had been deposited before 1st January 1970 and from that date the mortgage came to an end and his possession therefore cannot be that of a mortgagee. Thus it is clear that the appellant did not continue in possession till 1st January 1970 as a mortgagee. If the section provides that he must continue in possession as mortgagee, he will not be entitled to any relief. We have, therefore, to turn to the wording of the section once again to find out the import of the words in the section. The intention of the legislature will have to be gathered from the language used by the legislature. The wording of the section clearly indicates that the conditions of the section must be satisfied before a person can be deemed to be a tenant. This interpretation will have to stand even if S.13A is read with S.4A(1)(a). The intention of the legislature will have to be gathered from the language used by the legislature. The wording of the section clearly indicates that the conditions of the section must be satisfied before a person can be deemed to be a tenant. This interpretation will have to stand even if S.13A is read with S.4A(1)(a). When S.13A states that recovery of possession should be granted if he would have been a tenant on the date of dispossession what has to be done is to apply the provisions of the Act on the date of dispossession and see whether the person dispossessed would have been on that date a tenant or not. As far as S.6A is concerned we held considering the wording adopted in that section and S.13A that the intention of the legislature was that if a person would have been a tenant on the date of dispossession if S.6A had existed on that date recovery of possession should be allowed. We said so in the decision in CRP. No. 411 of 1973 (F. B.). However, when the words of the section are clear and unambiguous, as those of S.4A(1) (a), it would not be possible to change the words of the section in order to give effect to the supposed intention of the Legislature. The section insists on possession till a specified date as a mortgagee, and in the case of a lessee of a mortgagee, possession of a lessee of such a mortgagee who continued to be a mortgagee. To substitute some other date in the section would be legislating. This is the principle that was applied in Devaki Amma v. Ramakrishna Pillai 1974 KLT. 787. We must have, therefore, to repeat that the possession contemplated by S.4A(I) (a) must continue till 1st January 1970. The further aspect is whether the respondents continued possession in any capacity, even that as a trespasser, is what is contemplated by the section. It is clear from S.4A(1) (a) that it takes in only cases where mortgagees with possession and lessees of mortgagees with possession for the period required, who are deemed to be tenants. The wording of the section also lends support only to the interpretation that such possession as is envisaged by S.4A(1), is that of a mortgagee or of a lessee of a mortgagee. The wording of the section also lends support only to the interpretation that such possession as is envisaged by S.4A(1), is that of a mortgagee or of a lessee of a mortgagee. If the mortgagee had ceased on some date earlier than 1st January 1970 to be mortgagee, his possession and that of any lessee of his will not be the possession of a mortgagee or of a lessee of a mortgagee. A quondam mortgagee who continued in possession after the termination of the mortgage cannot be said to be in possession as a mortgagee. Clause (a) of sub-section (1) of S.4A deals with the expression mortgagee or lessee holding the land. The normal meaning to be given to this expression, is a mortgagee as such or lessee of such a mortgagee must hold the land. If the clause was intended to take in quondam mortgagees or lessees of such mortgagees as well, the legislature would clearly have made the position clear by stating that possession even after the termination of the mortgage would be deemed to be a possession of a mortgagee or that such possession would also count for the purpose of the section. In the absence of any such words in the section and in the absence of anything in the section indicating that such is the position by implication, it is not possible to hold that possession after the termination of the mortgage or the cessation of the mortgagor-mortgagee relationship, can or should also be reckoned for the purpose of S.4A(1)(a). In the light of the above discussion we hold that the respondents were not tenants under S.4A(1) (a), on the date of dispossession, since the clear and unambiguous wording of the section that they must continue to be in possession as mortgagees till the date on which Act 35 of 1969 came into operation have not been satisfied. We, therefore, set aside the orders of the courts below, allow this second appeal and direct delivery of the property pursuant to the decree. The parties will bear their costs throughout. S. A. No. 1228 of 1974: The facts of this case are stated in the reference order by the Division Bench in these terms: "This appeal also arises in execution of a final decree for redemption and redemption of property which is described in the B schedule to the plaint. The parties will bear their costs throughout. S. A. No. 1228 of 1974: The facts of this case are stated in the reference order by the Division Bench in these terms: "This appeal also arises in execution of a final decree for redemption and redemption of property which is described in the B schedule to the plaint. The mortgage amount and value of improvements were deposited by the decree-holder who then sought to get delivery of property pursuant to the decree. The objection of the respondents judgment-debtors that under S.4A of the Act the execution cannot be proceeded with, has been accepted by both the Executing Court and the Lower Appellate Court and the Execution Petition has been dismissed. The preliminary judgment does not disclose the mortgage sought to be redeemed. There was an ancient mortgage which one Krishnan Narayanan had obtained. After his death in a partition in Kanni 1102 as per Ext. P-1 in the case the properties bad been partitioned between the Makkathayam and Marumakkathayam heirs of Krishnan Narayanan. In that partition the present decree-holder was allotted plaint A Schedule property while B Schedule property was allotted to his brothers and sisters. Thereafter the Plaintiff (decree-holder) purchased the equity of redemption over plaint A and B schedule properties from the executants Nos. 10 to 12 of Ext P-1 partition deed who were the Marumakkathayam heirs of Krishnan Narayanan. It is the decree-holder's contention that as per the partition deed the original mortgage deed had been extinguished and a fresh mortgage right created which mortgage will not be 50 years old on 1st January 1970." The question of law raised in this appeal is the same as that was considered and decided in S.A No. 963 of 1973. In view of our decision in S. A. No. 963 of 1973, this appeal also will have to be allowed unless the contention of the decree-holder that by the partition deed Ext P-1 a new mortgage had come into existence, is found against. We have carefully gone through the provisions of the partition deed and we have no doubt that a new mortgage had come into existence by virtue of the provision in Ext. P-1 and a second arrangement came into existence as evidenced by the terms of Ext. P-1. The possession under the new mortgage had come into existence within 50 years of 1st January 1970. P-1 and a second arrangement came into existence as evidenced by the terms of Ext. P-1. The possession under the new mortgage had come into existence within 50 years of 1st January 1970. S.4A is, therefore, not attracted. In the light of what we have stated in S. A. No. 963 of 1973 the appellant cannot now be heard to say that the orders of the courts below should be set aside and the matter referred to the Land Tribunal. We accordingly, allow this second appeal, set aside the orders of the courts below and direct delivery of the property in terms of the decree. The parties will bear their costs throughout. Allowed.