RAGHAVAN NAIR v. ANANDAVALLY AMMA — 1985 DIGILAW 131 (KER)

Judgment :- 1. The matter arises in execution of the decree passed by the Munsiff's Court, Parur in O. S. No. 434 of 1120. The proceedings had a chequered career. E. P. No. 23 of 1970 was filed by defendants 73 to 99 for delivery of possession of that portion of suit item No. 2 allotted to them under the final decree. E. P. 32 of 1970 was filed by plaintiffs 18 to 30 for delivery of possession of that portion of suit item No.1 which is allotted to them under the final decree. Both these petitions were resisted by defendants 7, 8, 10, 12, 15, 16 and 20. They contended that the claim for possession is not sustainable without payment of the value of improvements. They also contended that they are tenants in respect of item No. 2 by reason of the provisions of S.4A (1) (a) of the Land Reforms Act. The learned Munsiff by order dated 4-3-1975 held that the revision petitioners are not tenants to be deemed as such under S.4A of Act I of 1964 in respect of item No. 2. The decree holders petitioners were allowed to recover possession of item No.1 also from the respondents in the E. P. Defendants 14,15,16,17,18 and 28 filed A. S. No. 41 of 1975 before the Additional District Court, Parur and assailed the order passed by the learned Munsiff. The learned District Judge held that defendants 1 to 20 cannot be considered to be mortgagees of plaint schedule item No. 2. The appeal was dismissed. The said defendants have come up in revision, C. R. P. No. 1964 of 1978. The orders passed by the courts below are assailed in this revision filed under S.115 of the Code of Civil Procedure. 2. The suit was filed nearly 40 years ago. It had a chequered career. The suit was for partition of ten items of properties. It was also for redemption of item No. 2, which was subject to a mortgage of the year 1051. It is four and half acres of land in North Parur town. The minimum facts necessary to appreciate the contentions raised for adjudication are as follows: The suit properties belonged to an ancient Nair tarwad by name'Vayalumadathil' tarwad. The plaintiffs and defendants are members of that tarwad. There are several tavazhies, residing in several places Plaintiffs are members of one tavazhi. The minimum facts necessary to appreciate the contentions raised for adjudication are as follows: The suit properties belonged to an ancient Nair tarwad by name'Vayalumadathil' tarwad. The plaintiffs and defendants are members of that tarwad. There are several tavazhies, residing in several places Plaintiffs are members of one tavazhi. Defendants 1 to 20 are members of another tavazhi. 17 persons filed a suit for partition against 118 persons. By judgment dated 1-6-1953 the suit was dismissed, and it was held that 17 persons who filed the suit as also defendants 102 to 108 are not members of the tarwad. This was confirmed in A. S. No. 114 of 1954. In the appeal, defendants 60 to 72, members of the tarwad, transposed themselves as plaintiffs 18 to 30 in the suit. By judgment dated 11-12-1957 a remit was ordered. Thereafter, by judgment dated 29-10-1958 a preliminary decree was passed allowing redemption and partition. There was a second preliminary decree dated 30-7-1960 at the instance of defendants 75 to 79 whereby their shares were granted. The final decree was passed on 31-1-1961. Thereafter, execution petition was filed by the plaintiffs and defendants 75 to 79. Defendants 12,14 to 18 and 20 filed objections thereto and claimed the benefit of S.4A of the Kerala Land Reforms Act in respect of item No. 2. Item No. 2 was mortgaged by the karanavan of the tarwad to one Raman Narayanan in 1039. After the demise of Raman Narayanan the mortgage was renewed in favour of his brother Raman Padmanabhan on 10-10-1051. (? 11-4-1051) (By subsequent proceedings, this was held to be a fresh and independent transaction.) A junior member of the tarwad one Kochunni Pillai got assignment of the said mortgage right on 3-10-1052. By Ext. A4 dated 14-8-1086 Kochu Pillai (Kochunni Pillai) executed a sub-mortgage to Kesava Pillai and others of Chembatti Veedu. By Ext. A5 of the same date there was lease back. Kochunni Pillai became the karanavan of the tarwad. Thereafter, by Ext. A6 dated 27-12-1080 Kochunni Pillai gifted the mortgage right in favour of defendants 1 to 3 and 11th defendant (one of the tavazhi of defendants 1 to 20, Gouri's tavazhi) excluding therein one tavazhi (Karthiayani's tavazhi). The sub-mortgagees under Ext. A4 filed O. S. No. 812 of 1090. The suit was decreed and the property was recovered by Ext. A7 dated 25-11-1096. The sub-mortgagees under Ext. A4 filed O. S. No. 812 of 1090. The suit was decreed and the property was recovered by Ext. A7 dated 25-11-1096. Some of the members of the tavazhi (members of the Karthiayani Branch), Karunakaran Nair and others, who were excluded in Ext. A6, got the sub-mortgage right. By Ext. A8 dated 16-11-1118, Karunakaran Nair and members of his tavazhi (Karthiayani Branch) released the right obtained by them in favour, of rest of the members of the other tavazhi (Gouri's branch). By Ext. A9 dated 15-8-1118, 90 cents of land were assigned in favour of Karunakaran Nair and other members of his tavazhi. By Ext. A2 dated 15-11-1118, there was a partition amongst the other members of the family (Gouri's branch after deducting 90 cents given over to Karunakaran Nair and others of the Karthiayani branch as per Ext. A9). In the meanwhile, by Ext. A8 judgment in O. S. No. 286 of 1101, the suit for redemption of the mortgage of 1051, against the tavazhi of defendants 1 to 80, was decreed and redemption was allowed, but possession was refused. This is evident from the order of the court below dated 28-2-1107. As stated, when the partition deed dated 15-11-1118 was executed in the Gouri's branch by defendants 1 to 20 (Ext. A2 in execution side, Ext. VIII in the original suit) they claimed to have become owners of the property due to non-execution of the decree, O. S. No. 286 of 1090. It is the contention of the revision petitioners that notwithstanding the apparent tenor of sub-mortgage, Ext. A4, lease-back (Ext. A5), the rent suit O. S. No. 812/1090, and Ext. A7 assignment deed dated 23-10-1096 to Karunakaran Nair and others, the khas possession of the property was always with the tarwad. Alternatively, it is contended that even if the apparent tenor of the above documents and the events said to have taken place are correct and true, and the sub-mortgagee was in possession, even then S.4A of the Land Reforms Act will apply and the revision petitioners will be tenants entitled to the protection of S.4A of the Act. 3. In this revision, it is contended: (A) There is no mortgage to be redeemed. By a junior member of the tarwad taking the assignment of the mortgage, the mortgage is extinguished. The present suit for redemption is not maintainable. 3. In this revision, it is contended: (A) There is no mortgage to be redeemed. By a junior member of the tarwad taking the assignment of the mortgage, the mortgage is extinguished. The present suit for redemption is not maintainable. Para.3, 4, 5, 6, 9 and prayer (a) of the plaint were stressed. The earlier suit, O. S.286/1101, was decreed, but possession was refused. In view of the earlier suit and decree in O. S. No. 286 of 1101, the present suit will not lie. The courts below erred in holding that the second suit for redemption will lie. (B) Even if there was a sub-mortgage, the possession was always with the mortgagee. The possession of the sub-mortgagee can be tacked on to that of the mortgagee. The revision petitioners will be entitled to avail the benefit of S.4A of the Kerala Land Reforms Act. (C) A junior member of a Marumakkathayam tarwad is not a co-owner. He has no interest in property. The junior member, taking the assignment of the mortgage, gets himself subrogated to the position of the "mortgagee" and all the rights available to the mortgagee are available to him. Admittedly, the mortgage sought to be redeemed is of the year 1051, which Kochunni Pillai got assigned in 1052, which has vested in the revision petitioners as per Ext. A6 dated 27-12-1089. The revision petitioners "are mortgagees" within the meaning of S.4A of the Act. 4. Mr. S. Narayanan Poti, counsel for the respondents, very seriously disputed the above propositions. He contended that the suit is one for partition and redemption and it is the revision petitioners who claim that they are entitled to the benefit of S.4A of the Act by virtue of the assignment of the mortgage rights. The suit for redemption will lie. A junior member of the tarwad is a person who has interest in the property of the tarwad and when such a person pays off the debt charged on the property, he is in the position of a surety. By paying off the debt, he will not be subrogated to the position of a mortgagee. He gets only the right to get reimbursement of the amount paid. In any view, a junior member of the tarwad is a co-owner or a co-proprietor. By paying off the debt, he will not be subrogated to the position of a mortgagee. He gets only the right to get reimbursement of the amount paid. In any view, a junior member of the tarwad is a co-owner or a co-proprietor. When a co-owner pays off the mortgagee, or redeems the mortgage, he gets himself subrogated to the position of the mortgagee, to the limited extent of getting contribution of the amount paid by him. He will not be subrogated to the position of a mortgagee, in all respects. This is not a case where "the mortgagee" was in possession for a continuous period of 50 years. Admittedly, there was a sub-mortgage. Regard being had to Ext. A4, Ext. A5 and the decree in O. S.812 of 1090, Ext. A7, Ext. A8 and Ext. A9, there was no continuous possession for 50 years on the date of the Act. The sub-mortgagee is not a predecessor in interest of the mortgagee. What is required under S.4A is strict physical possession. The revision petitioners will not satisfy that test and are not entitled to the benefit of S.4A of the Act. Counsel contended that the present plea at the time of arguments that the revision petitioners are at any rate entitled to the benefit of 5.4A (1) (b) of the Act was not raised before the lower court or before this court earlier. The contention is only feebly raised in the objections or statements after the remit and should not be countenanced. 5. We heard counsel for the revision petitioners, Mr. M.K. Narayana Menon, and also counsel for the respondent, Mr. S. Narayanan Poti, at length. We were referred to a large array of authorities. In our opinion, it is not necessary to traverse the entire grounds covered by the counsel on both sides. The controversy raised in the Civil Revision Petition is in a narrow campus and can be disposed of in the light of settled decisions of the Supreme Court of India and of this court. 6. At this juncture, we should state, that this Civil Revision Petition was referred to a Bench by Kader J by his order of reference dated 3-1-1984. The learned judge felt that the decision of Chandrasekhar Menon J. reported in Thevy v. Saraswathi (ILR 1980(2) Ker. 6. At this juncture, we should state, that this Civil Revision Petition was referred to a Bench by Kader J by his order of reference dated 3-1-1984. The learned judge felt that the decision of Chandrasekhar Menon J. reported in Thevy v. Saraswathi (ILR 1980(2) Ker. 669), is apparently in conflict with the earlier decisions of this court in Parukutty Nethiaramma v. Kesava Menon (1962 KLJ 618 ), Krishna Pillai v. Bharathi Amma (1957 KLT 732) (D.B) and Ayyappan Pillai v. Krishnan (ILR 1977 (1) Ker. 464-D.B). Another aspect which deserves mention is that by an order dated 28-9-1984, we called for a finding from the trial court, regarding the sub-mortgage by Kochunni Pillai to two members of the Chambati Veedu, since the matter was not beyond doubt. Accordingly, the trial court has submitted its findings dated 28-11-1985. It has definitely found in para 12 of the judgment that from 1086 and 1118, the property has been in the possession of the sub-mortgagees and their assignees. The revision petitioners have filed objections to the findings of the trial court. But no attempt was made to substantiate the objections. The finding of the trial court on the matter stands. 7. The relevant statutory provisions which are relevant for our consideration may be usefully extracted: "S. 4A (of the Land Reforms Act,). Certain mortgagees and lessees to be deemed tenants (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgement, 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 is 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 xxx xxx xxx xxx xxx Explanation II In computing the period of fifty years referred to in clause (a) or the period of thirty years referred to in clause (c), the period during which the predecessor-in-interest or predecessors-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account". (Ss. 91 and 92 of the Transfer of Property Act.) "91. Person who may sue for redemption. (Ss. 91 and 92 of the Transfer of Property Act.) "91. Person who may sue for redemption. Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of the mortgaged property, namely,... (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. 92. Subrogation Any of the persons referred to in S.91 (other than the mortgagor) and any co-mortgagor shall on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. The right conferred by this section is called the right of subrogation and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such person shall be so subrogated. Nothing in this section shall be deemed to confer a right of subregation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full." 8. It is common ground that the property sought to be redeemed is tarwad property. It belongs to all the members of the tarwad. A junior member of the tarwad is certainly a person who has interest in the property and is entitled to pay off the debt. He is in the position of a surety. The rights of a surety paying off the debt have been considered elaborately in the decision of the Supreme Court reported in Ganeshi Lal v. Joti Parhad (AIR 1953 SC 1). Para.9 and 10 of the judgment are relevant. He is in the position of a surety. The rights of a surety paying off the debt have been considered elaborately in the decision of the Supreme Court reported in Ganeshi Lal v. Joti Parhad (AIR 1953 SC 1). Para.9 and 10 of the judgment are relevant. "If we remember that the doctrine of subrogation which means substitution of one person in place of another and giving him the rights of the latter is essentially an equitable doctrine in its origin and application, and if we examine the reason behind it, the answer to the question which we have to decide in this appeal is not difficult. Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it and it is well recognised that where there are several joint debtors, the person making the payment is a principal abettor as regards the part of the liability he is to discharge and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the co-mortgagors if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of redemption; be can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share. This proposition is postulated in several authorities. In the early case of Hodgson v. Shaw, 3 Myl & K 183: 40 E. R 70, Lord Brougham said: "The rule is undoubted, and if is one founded on the plainest principles of natural reason and justice, that the surety paying off a debt shall stand in the place of the creditor, and have all the rights which he has, for the purpose of obtaining his reimbursement". I have italicised the word "reimbursement". Sheldon in his wellknown treatise on Subrogation has got the following passage in S.13 of Edn. 2. I have italicised the word "reimbursement". Sheldon in his wellknown treatise on Subrogation has got the following passage in S.13 of Edn. 2. There is another class of cases in which he who has paid money due upon a mortgage of land to which he had some title which might be affected or defeated by the mortgage and who was thus entitled to redeem has the right to consider the mortgage as subsisting in himself and to hold the land as if it subsisted until others interested in the redemption, or who held also the right to redeem, have paid a contribution". Be it noted that what is spoken of here is a "contribution." 10. Dealing with the subject of subrogation of a surety by payment of a promissory note and citing the observations of the Alabama Court, Harris says in his work on Subrogation (Edn.1889) at p. 125: "The rule is that a surety paying a debt, shall stand in the place of the creditor; and is entitled to the benefit of all the securities which the creditor bad for the payment of the debt, from the principal debtor; in a word, he is subrogated to all the rights of the creditor: the surety, however, cannot avail himself of the instrument on which he is surety, by its payment. By payment it is discharged and ceases to exist, and the payment will not, even in equity, be considered an assignment; the surety merely becomes the creditor of the principal to the amount paid for him." It is evident that the surety is entitled to "reimbursement" of the amount paid by him. He is entitled to "contribution". He merely becomes a creditor. By payment, he cannot avail himself of "the instrument". Rowlatt in his book "The Law of Principal and Surety", 1982 Edition at pages 5,6 and 151 has also stated the legal position on the above lines. A junior member of the tarwad, to whom also the tarwad property belongs, and has interest in the property, is entitled to redeem the mortgage; he can pay off the debt. If he does so, he occupies the position of a "surety." By payment of the mortgage debt, he only becomes a creditor and he cannot avail of the instrument. A junior member of the tarwad, to whom also the tarwad property belongs, and has interest in the property, is entitled to redeem the mortgage; he can pay off the debt. If he does so, he occupies the position of a "surety." By payment of the mortgage debt, he only becomes a creditor and he cannot avail of the instrument. On this ground, the revision petitioners in this case cannot be said to be "mortgagees'' who can avail themselves of the mortgage and claim the benefit of S.4A of the Act. Their right is only to get reimbursement or contribution. 9. The trial court dealt with the matter in paras 9 & 10 of its order. It held: "That by the assignment obtained by Easwaran Kochunny Pillai in 1052 of the mortgage right of Narakattu Raman Padmanabhan, the mortgage has been redeemed is undisputed. It is also admitted that the mortgage right so redeemed has vested with the respondent's thavazhi alone. The contention of the respondents that the tarwad being the mortgagor, a junior member or for that matter a thavazhi has no interest in the equity of redemption has no merit. A Nair tarwad has always been understood as a group of persons, and not as a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part. The karnavan being the accredited representative of the entire group, the tarwad, his capacity to exercise the rights of the tarwad is full. But it does not mean that a member of the tarwad has no proprietary right in the tarwad property; as a part-owner, he is entitled to exercise the rights of the tarwad in relation to tarwad properties demised to strangers, when the karnavan is not a competitor with him in the field. It is now beyond doubt that a junior member of a tarward is entitled to redeem tarwad property outstanding on mortgage with a stranger. This right can be explained only by holding that a right of the tarwad to redeem its properties inheres in every member of the tarwad in part. It is now beyond doubt that a junior member of a tarward is entitled to redeem tarwad property outstanding on mortgage with a stranger. This right can be explained only by holding that a right of the tarwad to redeem its properties inheres in every member of the tarwad in part. Further, in Govindan v. Parvathy (I. T. L. J. 66) it is laid down that the position of a junior member, who is also the mortgagee of tarward property is no doubt, anomalous. As a general member of the tarwad, he has got an interest in the equity of redemption, and as a mortgagee, he has got a a charge on the property itself. If such a junior member becomes also the karnavan, the position become still more anomalous, as he represents the tnortgagor-tarwad being (its karnavan and trustee) and is himself the mortgagee. There is again the case in Ponnen Erayiman v. Kauliambi Kumaran (6 T. L.J. 89) where the junior members who had redeemed a mortgage from the tarwad and were in possession were allowed successfully to question a melotti given by the karnavan on foot of which they were sought to be redeemed in turn. These T.L J. rulings cited alone, have been quoted with approval and followed in Krishna Pillai v. Bharathi Amma (1957 KLT 732) where it is laid down that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled and paid off." In para 10 of its order, the trial court posed the question as follows: "The question which therefore falls for consideration is as to the character of a person who along with another is entitled to redeem a mortgage, but redeems it himself and holds possession of the property." Relying on the decision of a Division Bench of this court reported in Bhaskara Menon v. Madhavan (1975 KLT 38) wherein this court followed the decision of the Supreme Court in Ganeshi Lal's case (AIR 1953 SC 1) it was held that the revision petitioners cannot be deemed tenants under S.4A of the Land Reforms Act. The lower appellate court dealt with the matter in Para.9 to 11 of its judgment. The lower appellate court dealt with the matter in Para.9 to 11 of its judgment. After referring to the decision of the Division Bench reported in Krishna Pillai v. Bharathi Amma (1957 KLT 732), the learned District Judge observed: "The facts in this case are identical with the situation contemplated in the above extract; Easwara Pillai Kochunni Pillai got an assignment of the mortgage while he was a junior member. Subsequently be became the karanavan of the main tarwad. It was thereafter that be gifted his right in his favour of his tavazhy. The subject matter of that gift can only be the special interest to which he was entitled to. The observation of the Division Bench in the above decision is in support of the above conclusion. The Division Bench has stated "our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off." 10. The same question of law came up for consideration in a recent decision reported in ILR 1977 (1) Kerala Page 464. After quoting the above passage from the decision in 1957 KLT 732 the Division Bench observed: 'We do not demur to the proposition laid down in 1957 KLT 732. Indeed, we are bound by the said ruling". In that later decision on facts. Their Lordships did not even find any special right in favour of the junior member who got a release of the mortgage from the tarwad. In view of the above decisions the right that was obtained by Easwara Pillai Kochunni Pillai cannot be that of a mortgagee." Proceeding further, the learned District Judge held in Para 11 of the judgment as follows: "The members of the tarwad are the owners of the property belonging to the tarwad. The rights of the tarwad inhere every member of the tarwad in part, as a part owner he is entitled to exercise the rights of the tarwad in relation to properties demised to strangers, when the karanavan is not a competitor with him in the field (vide 1962 KLJ 688). The rights of the tarwad inhere every member of the tarwad in part, as a part owner he is entitled to exercise the rights of the tarwad in relation to properties demised to strangers, when the karanavan is not a competitor with him in the field (vide 1962 KLJ 688). Such being the position, he is a person entitled to sue for redemption under S.91 of the T.P. Act as a person who has an interest in or charge upon the property mortgaged. If such a person is taking an assignment of the mortgage, it will amount to a redemption by a co-mortgagor. The observation of the Division Bench in the decision reported in 1975 KLT ?8 will support this conclusion. The observation in the said decision is: "The rule of subrogation does not'enable the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek to be reimbursed of whatever monies he has spent before possession is sought to be recovered from him by the other co-mortgagor. The position would be the same where, is the strict sense, the redemption is not by a co-mortgagor as in the case of one of the heirs of the deceased mortgagor or one among the several donees of the several portions of the mortgage." The observation of the Division Bench, has been quoted with approval by the Full Bench in the decision reported in 1977 KLT 464. So even if Easwara Pillai Kochunni Pillai was not a co-mortgagor in the strict sense, he was a person interested in the property mortgaged and in that sense he can be considered only as a person who got the right to claim the amount which was actually spent by him It was only that right that could have been the subject matter of the gift to the tavazhy of defts.1 to 20. So in any view of the matter defts.1 to 20 cannot be considered as mortgagees of plaint schedule item No. 2. Hence the court below has rightly negatived the contentions put forward by them under S.4A of Act 1/1964." We see no error either in the above reasoning or conclusion of the courts below, justifying interference under S.115 C.P.C. 10. It cannot be doubted that the junior member of the tarwad is a "co-proprietor" or "part owner" of the tarwad property. Hence the court below has rightly negatived the contentions put forward by them under S.4A of Act 1/1964." We see no error either in the above reasoning or conclusion of the courts below, justifying interference under S.115 C.P.C. 10. It cannot be doubted that the junior member of the tarwad is a "co-proprietor" or "part owner" of the tarwad property. In this context the decision of the Supreme Court reported in Kochunni v. States of Madras & Kerala (AIR 1960 SC 1080) at pp. 1099 and 1105 is relevant. "The joint family in a Marumakkathayam Nayar tarwad consists of a member and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the mate and females that composes it. Its affairs are administered by one of those persons, usually the eldest the male, called the karnavan. The individual members are not entitled to enforce partition, but a partition may be effected by common consent. The rights of the junior members are stated to be (1) if male, to succeed to management in their turn, (2) to be maintained at the family house, (3) to object to an improper alienation or administration of the family property, (4) to see that the property is duly conserved. (5) to bar an adoption, and (6) to get a share at any partition that may take place. These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights." At page 1105 it was stated: "The property of the tarwad or family is owned by all its members but is managed ordinarily by the eldest male member, such manager being called the karnavan. Madhavan Nair J in Parukutty Nethiaramma v. Kesava Menon & others (1962 KLJ 688) held: "Thus the tarwad has always been understood as a group of persons, and not as a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part. The karnavan being the accredited representative of the entire group the tarwad, his competency to exercise the rights of the tarwad is full. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part. The karnavan being the accredited representative of the entire group the tarwad, his competency to exercise the rights of the tarwad is full. But it does not mean that a member of the tarwad has no proprietary right in the tarwad propery; as a part-owner he Is entitled to exercise the rights of the tarwad in relation to tarwad properties demised to strangers, when the karnavan is not a competitor with him in the field. It is now beyond doubt that a junior member of a tarwad is entitled to redeem tarwad property outstanding on mortgage with a stranger. The right can be explained only by holding that a right of the tarward to redeem its properties inheres in every member of the tarwad in part. Every member of a tarwad is recognised to be a part-owner of its equity of redemption. Likewise must be the case of resumption of property outstanding on a demise of lease or kanom with a stranger. Every member of a tarwad is a part-owner of its right of resumption; and a tenant cannot be heard to say that the landlord is only the "tarwad" and that therefore a member of the tarwad cannot resume the property from him. Every member of a tarwad is, in respect of its property outstanding on a demise, a bit of the landlord, and as such entitled to claim its resumption from the tenant." That the junior member of a Marumakkathayam tarwad has proprietary right in the tarwad property cannot admit of any doubt. Ordinarily he is entitled to food and shelter and is entitled to a share of the tarwad property on partition. He can alienate the tarwad property for urgent necessity. He can file a suit to save the property from improper alienation. He can also save the tarwad property from danger and can take steps therefor, if the karnavan is negligent. We are of the view that the fact that the proprietary right of the junior member of the tarward is subject to some trammels, does not in any way lead to the conclusion that he has no right or interest at all in the property of the tarwad. We are of the view that the fact that the proprietary right of the junior member of the tarward is subject to some trammels, does not in any way lead to the conclusion that he has no right or interest at all in the property of the tarwad. Reference may be made to Marumakkathayam Law by M. P. Joseph. Chapter VI pages 134,143,174,175,180 and 203 in this connection regarding the rights of a junior member of a tarwad. On this basis, if the junior member of a tarwad is a co-proprietor or co-owner of the tarwad property, the only question is this: When a co-owner redeems a mortgagor, is he entitled to be subrogated to the position of a mortgagee? If so, to what extent? In Sanjiva Row's Transfer of Property Act, 4th Edition, 1963 Vol. II at page 1567 the position of a redeeming co-mortgagor has been stated as follows: "Redemption by co-mortgagor, (i) General A redeeming co-mortgagor is subrogated to the rights of the mortgagee whom he redeems. This is so, because a co-debtor is a principal debtor: in respect of his own share and a surety in respect of his co-debtor's shares, and when a surety pays the debt, he becomes entitled to avail himself of all the creditor's securities. No doubt, under S.92 of the Transfer of Property Act any co-mortgagor shall on redeeming property subject to the mortgage have so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. This is called the right of subrogation. But the rule of subrogation does not entitle the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek reimbursement of whatever money he has spent before possession is sought to be recovered from him by the other co-mortgagor The right of redeeming co-mortgagor is only to claim the amount which was actually spent before surrendering possession. The rule of subrogation does not enable the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek to be reimbursed of whatever monies he has spent before possession is sought from him by the other co-mortgagor. The rule of subrogation does not enable the redeeming co-mortgagor to claim to be the mortgagee but it entitles him to seek to be reimbursed of whatever monies he has spent before possession is sought from him by the other co-mortgagor. The position would be the same where in the strict sense, the redemption is not by a co-mortgagor as in the case of one of the heirs of the deceased mortgagor or one among the several donees of the several portions of the mortgage. If the right of the redeeming co-mortgagor is only to claim the amount which was actually spent before surrendering possession and not to claim that he should get the proportionate mortgage debt it would necessarily follow that his possession is only that of a person who by virtue of having paid amounts to discharge the entire mortgage debt, is entitled to seek reimbursement prior to surrendering possession of the property to the other mortgagor If that be the case, he cannot claim by reason of the redemption, that he is still a mortgagee who would come within the scope of S.4-A. Kerala Land Reforms Act, to set up the plea of tenancy" It should be noted that the above statement of law is an accurate summary of the relevant decisions of the various High Courts and in particular, the decisions of this court reported in Krishna Pillai Raghavan Pillai v. Velayudhan Pillai (AIR 1979 Kerala 47 at p 49); Krishna Menon v. Madhavan (AIR 1976 Kerala 62) (1975 KLT 38); Subhadra Amma v. Velayudhan Pillai (AIR 1977 Ker. 148) 1977 KLT 464); Subramania Iyer v. Pachi Amma Lakshmikutty Amma (AIR 1977 Ker 5) (1976 KLT 389). We have perused through the decision aforesaid with care. We are in full agreement with the above statement of laws In view of the above, we are of the view that it is not open to the revision petitioners to claim that they are mortgagees. They are only entitled to seek reimbursement of whatever money they have spent or incurred before possession is recovered from them by the other co-mortgagor. They are not entitled to set up the claim of tenancy under S.4A of the Kerala Land Reforms Act. 11. Revision Petitioner's counsel placed strong reliance on the decision reported in Thevi v. Saraswathy (ILR 1980 (2) Ker. They are not entitled to set up the claim of tenancy under S.4A of the Kerala Land Reforms Act. 11. Revision Petitioner's counsel placed strong reliance on the decision reported in Thevi v. Saraswathy (ILR 1980 (2) Ker. 669) and contended that the junior member redeeming the mortgage executed by the tarwad is entitled to stand in the shoes of the mortgagee and in the suit for redemption is entitled to claim the benefits of S.4A (1) (a) of the Land Reforms Act. In Thevi's case, Chandrasekhar Menon, J distinguished the decision of the Division Bench in Krishna Pillai v. Bharathi Amma (1957 KLT 732). In Krishna Pillai's case (1957 KLT 732) the Division Bench observed: "Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off." It is true, the learned judges also said that it is unnecessary to decide this question finally in that case. There is a later decision, Krishna Pillai v. Sankara Pillai (1958 KLT 97) wherein the decision in Krishna Pillai v. Bharathi Amma was explained. It was stated by Joseph, J that Krishna Pillai's case was one where the junior member who redeemed a mortgage of tarwad properties, did so only on behalf of the tarwad and is in the position of one discharging the debt of the tarwad, and such a member is given the benefit of the security which the creditor had. A later Division Bench decision of this court in Ayyappan Pillai v. Krishnan (ILR 1977 (1) Kerala 464) (at pages 466 and 467) accepted the proposition laid down and extracted above in Krishna Pillai's case (1957 KLT 732) and held that they are bound by the said decision. It is true that the later Division Bench also held that the decision should not be understood as laying down, that irrespective of the facts and circumstances disclosed, a junior member of the tarwad could, in all circumstances and conditions, be getting only the right of a creditor and nothing else. It is true that the later Division Bench also held that the decision should not be understood as laying down, that irrespective of the facts and circumstances disclosed, a junior member of the tarwad could, in all circumstances and conditions, be getting only the right of a creditor and nothing else. On a review of the above decisions, we are inclined to hold that the observations in Krishna Pittai's case (1957 KLT 732) at page 736, as extracted herein above, lays down the correct law. To the extent, the decision in Thevi v. Saraswathi (ILR 1980 (2) Kerala 669) militates against the said observations, we hold that the said decision does not lay down the correct law. Moreover, it does not appear that when Chandrasekhara Menon, J decided Thevi's case (ILR (1980 (2) Kerala 669), the decision of the Supreme Court in Kochunni v. States of Madras & Kerala (AIR 1960 SC 1080) and the observations at pages.1099 and 1105, were brought to His Lordship's notice. It is evident from Kochunni's case (AIR 1960 SC 1080) as also from the decision reported in Parukutty Nethiaramma v. Kesava Menon (1962 KLJ 688) that a junior member of a tarwad is a "part owner" or a "co-proprietor". It means, he is a co-owner of the tarwad proper ties. In Thevi v. Saraswathi (ILR 1980 (2) Kerala 669) Chandrasekhara Menon, J in Para.18 specifically stated that in that case His Lordship was not concerned with a co-mortgagor redeeming the mortgage. In this case, the facts are different and so the decision in Thevi's case (ILR 1980 (2) Kerala 669) is distinguishable. In this case, the trial court held: "That by the assignment obtained by Easwaran Kochunni Pillai in I052 of the mortgage right of Narakattu Raman Padmanabhan, the mortgage has been redeemed is undisputed. It is also admitted that the mortgage right so redeemed have vested with the respondent's thavazhi alone." This finding has not been challenged either in the appeal or in the revision petition. This is what the lower appellate court said in para 11 of the judgment in this regard: "The members of the tarward are the owners of the property belonging to the tarwad. This is what the lower appellate court said in para 11 of the judgment in this regard: "The members of the tarward are the owners of the property belonging to the tarwad. The rights of the tarwad inhere in every member of the tarwad in part: as a pan owner he is entitled to exercise the rights of the tarwad in relation to properties demised to strangers, when the karanavan is not a competitor with him in the field. (Vide 1962 KLJ. 688). Such being the position, he is a person entitled to sue for redemption under S.91 of the T. P. Act as a person who has an interest in or charge upon the property mortgaged. If such a person is taking an assignment of the mortgage, it will amount to a redemption by a co-mortgagor." In this case, it is not disputed, the position is that of a co-mortgagor having redeemed the property. The provisions of S.91 and 92 of the Transfer of Property Act are relevant. So, Thevi's case (I.L.R.1980 (2) Kerala 669), cannot advance the case of the revision petitioners. 12. In this case the revision petitioner's claim or plea of tenancy should fail on another or different ground as well. It is common ground that Kochunni Pillai and 4 others executed a sub-mortgage (Ext. A4) to Kesava Pillai and others of Chembatti Veedu. The junction of 4 others besides Kochunni Pillai was necessitated because there were other properties belonging to the tarwad besides item No. 2 which belonged to Kochunni Pillai alone. It is so stated in Ext. A6 gift deed by Kochunni Pillai to Gouri's tavazhi, one of the tavazhies of the tarwad. S.4A of the Kerala Land Reforms Act postulates that the person claiming the benefit of that section should be "a mortgagee" with (physical) possession of land holding it for for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act 1969-(1-1-1970). In this connection, the definitions, "holding" in S.2(17) of the Act and "to hold the land" under S.2 (59) of the Act are also relevant. We are of the view that S.4A of the Land Reforms Act envisages direct and immediate possession. As held in Adoor P. B. Samooham v. Lakshmi Ammal (1982 KLT. 797) the emphasis in S.4A(1) (a) of the Act is on actual possession of the property. We are of the view that S.4A of the Land Reforms Act envisages direct and immediate possession. As held in Adoor P. B. Samooham v. Lakshmi Ammal (1982 KLT. 797) the emphasis in S.4A(1) (a) of the Act is on actual possession of the property. The following observations of Kader J. in Adoor P. B. Samooham's case (1982 KLT. 797) (799 & 800) are relevant: "The very object of the Act is to assure security to the tillers of the land by conferring the benefit of fixity of tenure on those who actually till the land and work on the land and not to help or encourage those persons who own the land, but derives benefit out of it without actually working on the same. An equally important object of the Act is to abolish landlordism, particularly landlordism. Under the general law a mortgagee is not entitled to fixity of tenure. It is under a special provision in the Act by a legal fiction a mortgagee has been given fixity of tenure, under the conditions mentioned therein. Before a mortgagee can claim benefit under S.4A of the Act he has to strictly satisfy all the conditions mentioned thereunder. It is not disputed that for a long period the suit property was being cultivated by a varamdar under pathivaram arrangement During the period varamdar was cultivating the property, be was in occupation and possession of the same, although the mortgagee claimed that he was in constructive possession of the property during that period. By virtue of the definition of possession, under the Act a varamdar can claim that he has been in possession of the property till the property was delivered through court in the year 1107. If that be so, it cannot be said that the mortgagee in question was in possession of the property for a period not less than 50 years as contemplated under S.4A of the Act. Being a section creating a deemed tenancy, as in the case of similar provisions relating to deemed tenancy in the Act, emphasis should be on actual possession of the property." We are of the view, that there is no continuous possession of the land by the mortgagee as contemplated by S.4A of the Act in this case in view of the sub-mortgage by Kochunni Pillai, evidenced by Ext. A4, and the subsequent proceedings relating thereto. A4, and the subsequent proceedings relating thereto. The finding of the lower court is to the effect that from 1086 to 1118, the property was in the possession of the sub-mortgagees, and their assignees. There is no evidence to contradict or assail the said finding of fact recorded by the trial court. The decisions reported in Kochunni Panicker v. Krishna Panicker (1974 KLT 850) and Subramonia Iyer v. Pachi Amma Lekshmikutty Amma (AIR. 1977 Ker. 51976 KLT. 389) are to the effect that the possession of a lessee or sub-mortgagee, is not possession of the mortgagee and the mortgagee cannot be said to be in "continuous possession" and claim tenancy under S.4A (1) (a) of the Land Reforms Act. The decision in Subramania Iyer's case (1976 KLT. 389) was followed by M. P. Menon J. in Abraham v. Thomas (1979 KLT. 257). We concur with the above decisions. They are in accord with the requirements of S.4A of Land Reforms Act and so we hold that the revision petitioners are not entitled to claim the benefits of S.4A of the Land Reforms Act in this case, though they obtained the mortgage right of Raman Padmanabhan of the year 1051 by Ext. A6 dated 27-12-1089. On this ground also, we hold that the revision petitioners are not entitled to claim the protection of S.4A of the Kerala Land Reforms Act. 13. In this court, after the finding in pursuance to the order dated 28-9-1984, the revision petitioners advanced a new plea to the effect that they are entitled to the benefit of S.4A (1) (b) of the Act (apart from S.4A(1) (a). S.4A (1) (b) of the Act is as follows: "the mortgagee or lessee has constructed a building for his own residence is 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;" It is stated that revision petitioners are continuously in occupation for 20 years. 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;" It is stated that revision petitioners are continuously in occupation for 20 years. The 4th defendant when examined as D. W.1 on 13-1-1975 was aged 65. He should have been born in 1909. He would have been 4 or 5 years old when the mortgage right was obtained by his 'sakha' by Ext. A6. He has casually stated that there is a building in the property. It should be stated that none of the essential ingredients to attract S.4A (1) (b) of the Act, have been either alleged or proved in this case. The revision petitioners have no case that they were denied any opportunity to lead evidence, to prove the essential ingredients of S.4A (1) (b) of the Act by the lower court. So, we are unable to uphold the plea based on S.4A (1) (b) of the Act. 14. For the above reasons, we hold that the judgments of the courts below do not call for any interference. This Civil Revision petition is without merit and it is dismissed. But in the circumstances, we direct the parties to bear their costs throughout.