Research › Browse › Judgment

Kerala High Court · body

1977 DIGILAW 310 (KER)

BHASKARAN v. DAMODARAN

1977-11-17

T.KOCHU THOMMEN

body1977
Judgment :- 1. This civil revision petition arises from an order dated 1121975 made by the learned Munsiff, Attingal, whereby the petitioner's application under S.132 (3) of the Kerala Land Reforms Act, 1964 ('the Act'), was rejected on the ground that the petitioner was not a tenant within the meaning of S.4A of the Act. 2. The petitioner was the 4th defendant in O.S. No. 6 of 1964 which was a suit for redemption. The suit was decreed on 23121955. The decree provided for the payment of a sum of Rs. 500/-together with the value of improvements determined at Rs. 943.92 as a condition for redemption. The value of improvements was enhanced in appeal by Rs. 256.84. The decree-bolder filed execution petition. The petitioner filed C.M.P. No. 16315 of 1960 on 111 1960 claiming the benefits of the Kerala Compensation for Tenants' Improvements Act, 1958 (Act 29/58). Thereafter the decree holder (the present respondent) deposited in Court on 2161961 the amount payable under the decree. In August 1975, the petitioner's application for the value of improvements in terms of Act 29 of 1958 was allowed by the execution court and the total value (including the amount provided in the decree) was determined at Rs. 4149.66. The appeals filed by the petitioner against the order in CMP.16315 of 1960 were rejected. Thus the value of improvements, as determined by the execution court, after deducting from it the amount already deposited by the respondent on 2161961 in terms of the decree, became due and payable by the respondent to the petitioner. Admittedly the balance amount has neither been paid over to the petitioner nor deposited in court. The petitioner filed I.A. No. 2340/75 to reopen the decree in terms of S.132 (3) of the Act. That application was rejected by the impugned order against which the petitioner filed an appeal which was found to be not maintainable, for there was no provision for appeal. 3. This civil revision petition was filed only on 25 71977. If the period taken in appeal is to be excluded, the CRP. cannot be considered to have been filed out of time. The appeal was prosecuted in the bona fide belief that it was maintainable, although it later turned out to be not so. 3. This civil revision petition was filed only on 25 71977. If the period taken in appeal is to be excluded, the CRP. cannot be considered to have been filed out of time. The appeal was prosecuted in the bona fide belief that it was maintainable, although it later turned out to be not so. In the circumstances I am of the view that S.14 of the Limitation Act applies to the present case, and I hold that the CRP. is filed within time 4. The contractual relationship between the petitioner and the respondent ended on 2161961 on deposit of the decree amount. The deposit was made at a time when the petitioner's application under Act 29 of 1958 was pending. This Act allows a tenant to continue in possession of the holding until the compensation payable under the Act is paid and he shall, as a statutory tenant, hold the land subject to the terms of the contract, although bis contractual relationship with the landlord ended on payment to him of the amounts due under the contract. A tenant is defined to include a mortgagee. A mortgagee whose contractual relationship with the mortgagor expired on deposit of the decree amount, but who has not been paid the compensation due under Act 29 of 1958, remains in possession of the holding as a statutory mortgagee subject to the terms and conditions of the mortgage I shall now read S.4 of Act 29/58: "4. Tenant entitled to compensation for improvements. (1) Every tenant shall, on eviction, be entitled to compensation for improvements which were made by him, his predecessor-in-interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation bad not already been paid and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy on the payment or tender of the mortgage money or premium, if any, be entitled to remain in possession until eviction in execution of a decree or order of court: Provided that nothing herein contained shall be construed as affecting the provisions of the Kerala Land Conservancy Act, 1957; Provided further that this section shall not apply to tenants holding lands under the Government. (2) A tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any." 5. S.5 says that the decree in eviction is conditional on payment of compensation for improvements S.4 and 5 together lay down the condition that no tenant under the Act shall be evicted until the compensation payable thereunder is paid to him in full. That being the position, a tenant under the Act, which expression includes a mortgagee, cannot be evicted until the compensation is paid, and he remains in possession subject to the terms of the mortgage. If in relation to a mortgagee sub-s (2) of S.4 were to be read, in the light of the definition of a tenant under S.2 (d), it would read as follows: "A mortgagee so continuing in possession shall, during such continuance, hold as a mortgagee subject to the terms of his mortgage."' A person in the position of the present petitioner who was a mortgagee in possession and whose direct relationship with the mortgagor expired on 2161961 on deposit of the decree amount, but who has not been paid the compensation payable under Act 29 of 1958, remains in possession of the land as a statutory mortgagee subject to the terms of the mortgage. The value of improvements payable under Act 29 of 1958 not having been paid, the petitioner is, in my view, a mortgagee for the purpose of Act 29 of 1958. 6. The question then arises whether the petitioner can be regarded as a person entitled to the benefit of S.132 (3) of the Act. That sub-section reads: "(3) Notwithstanding the repeal of the enactments mentioned in sub-section (2) (a) any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act; .. ................" (italics supplied) It is necessary therefore that a person has to be a tenant before he seeks the benefit of that sub-section. ................" (italics supplied) It is necessary therefore that a person has to be a tenant before he seeks the benefit of that sub-section. Admittedly the petitioner was only a mortgagee, and therefore he can be considered to be a tenant only if he comes within the scope of S.4A which says that a mortgagee who has been in continuous possession of the land for a period of not less than 50 years immediately preceding the commencement of the Act shall be deemed to be a tenant. The petitioner has been a statutory mortgagee under Act 29 of 1958 ever since he ceased to be a mortgagee under the contract of mortgage. His contractual relationship was converted into a statutory status thereby extending the period of his link with the land as a mortgagee. The statute continued the mortgage unbroken and, what commenced as a contractual relationship continued as a statutory relationship, notwithstanding the expiry of the contractual period. The petitioner is still in possession of the land as a statutory mortgagee and he has been in continuous possession as a mortgagee for more than 50 years whether under the contract under the statute. In the circumstances the petitioner is a deemed tenant for the purpose of S.4A. 7. Counsel for the respondent Shri Rajamony referred to a number of decisions. In the first place he drew my attention to the observation of the Supreme Court in Prithi Nath Singh v. Suraj Ahir (AIR. P63 SC. 1041). The Court stated: "When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee, and therefore the mortgage can no longer continue after the mortgage money has been paid." This observation which is in respect of the general law of mortgage does not apply to the present case which is governed by special statutes. Counsel referred to a decision of this Court in Varghese Samuel v. Varkey Abraham (1975 KLT. 372) which was cited with approval by a Full Bench of this Court in an unreported decision in S. A. Nos. 963 of 1973 and 1228 of 1974. In that case (1975 KLT. 372) the entire amount payable by the mortgagor had been paid before 111970. Nothing remained payable under Act 29 of 1958. 372) which was cited with approval by a Full Bench of this Court in an unreported decision in S. A. Nos. 963 of 1973 and 1228 of 1974. In that case (1975 KLT. 372) the entire amount payable by the mortgagor had been paid before 111970. Nothing remained payable under Act 29 of 1958. This Court therefore held that the total amount payable to the mortgagee having been settled in full prior to 111970, the mortgagee did not continue in possession as a mortgagee on 111970 so as to attract S.4 A. This decision therefore has no application to the problems arising in the present case. Counsel also referred to K. P. Muhammad v. Maya Devi (1971 KLT. 284 FB.), where this Court held that the mere fact, that there was a super-imposition of the character of a tenant on a mortgagee did not take away the rights which arose under the mortgage prior to 111970. Although fixity of tenure was conferred upon the statutory tenant, his obligation for accounting continued unaffected. The present case has no application to the principle stated in that decision. Counsel for the respondent also referred to Varkey Paily v. Kurian Augusthy, 1967 KLT.189 FB. where this Court pointed out that upon determination of the contractual tenancy the statutory tenancy commenced and the tenant who was entitled to compensation under Act 29/58 was entitled to remain in possession until compensated in terms of that Act. Counsel for the petitioner too relies upon that observation when he submits that the mortgagee continues to be a statutory mortgagee, even after the expiry of the mortgage, and that the petitioner who has been in possession for over 50 years as a mortgagee is entitled to the protection of S.4A. 8. If S.4A protects all mortgagees in continuous possession for over 50 years, in my view, it protects a person who has been in continuous possession as a mortgagee for the said period, whether under contract or under statute. The legislature, having in one enactment allowed a mortgagee to continue as a mortgagee beyond the period of the mortgage, would not have intended to deny him the benefit given to a mortgagee under another statute. In other words, the petitioner who is a mortgagee under Act 29/58 is a mortgagee for the purpose of being treated as a "deemed tenant" under the Land Reforms Act. In other words, the petitioner who is a mortgagee under Act 29/58 is a mortgagee for the purpose of being treated as a "deemed tenant" under the Land Reforms Act. In my view, the order of the learned Munsiff is manifestly wrong for the reasons stated above, and it is vitiated by an error going to the root of his jurisdiction. The order is set aside. The civil revision petition is allowed, in the circumstances of this case the parties are directed to bear their respective costs. Allowed.