Madhavan Nair v. Thankammal — 1985 DIGILAW 290 (KER)

JUDGMENT Pareed Pillay, J. 1. First defendant in O.S. 141/1964 of the Munsiff Court, Parappanangadi is the appellant. Plaintiffs 1 and 2 filed the suit for redemption. The suit was decreed by the learned Munsiff. Appeal filed by the first defendant was not successful. The second appeal has been filed formulating the following questions of law: (i) in view of Ext. B-4 judgment was the court below right in decreeing the suit for possession? (ii) was the court below right in holding that Exts. B-5 and B-6 form part of the same transaction and that Ext, B-5 can operate only as a lease back? 2. The case was referred to the Division Bench by the learned Single Judge in view of some special features of the documents in question. 3. Contention of the plaintiffs is that the mortgage Ext. B-6 and the lease deed Ext. B-5 form part of the same transaction and so it partakes the character of an anomalous mortgage and therefore the courts below were right in decreeing the suit. On the other hand, appellant adopts a contrary stand. 4. Items 1 to 5 of plaint A schedule property belonged to the first plaintiff and items 6 to 10 belonged to the second plaintiff. The entire items were mortgaged to the first defendant for a sum of Rs. 5,000 as per registered mortgage deed Ext.B-6, dated 16th July 1952. For realisation of the interest due under the mortgage amount possession of item No. 6 was given to the first defendant with liability to pay annual rent of Rs. 325 as per Ext. B-5 registered deed. There is stipulation to the effect that Rs. 275 is to be deducted towards interest for the mortgage amount. Plaintiffs assigned their rights over the properties to defendants 2 to 5 as per assignment deed dated 15th June 1953 with the condition that the plaintiffs should obtain direct possession of item No. 6 and deliver the same to them. 5. It is not disputed that items 1 to 5 belonged to the first plaintiff and items 6 to10 belonged to the second plaintiff. Execution of the mortgage deed in favour of the first defendant is also admitted. On the same date possession of item No. 6was given to the first defendant on condition that he should pay Rs. 325 as rent. It is further stipulated that out of the rent Rs. Execution of the mortgage deed in favour of the first defendant is also admitted. On the same date possession of item No. 6was given to the first defendant on condition that he should pay Rs. 325 as rent. It is further stipulated that out of the rent Rs. 275 should be adjusted towards the interest due under the mortgage. In view of the rival contentions of the parties it has to be considered I as to what was their intention at the time of executing Ext.B-6 mortgage and Ext. B-5 document whereby possession of item No. 6 was given to the appellant. Counsel for the appellant contended that though Exts. B-5and B-6 were registered on the same day the recitals in the documents would show that the term of the mortgage and the lease as per Exts. B-6 and B-5 are different and therefore it cannot be said that the documents are part and parcel of the same transaction. Appellant contends that Ext. B-5 evidences outright lease and therefore plaintiffs cannot legally evict him. Counsel for the plaintiffs pointed out that plaintiffs had number of debts to be cleared and it was in such a situation that Ext. B-6 mortgage was executed and as the first defendant insisted to get possession of item No. 6 property as a further security to the mortgage, plaintiffs had no option but to yield to the pressure tactics adopted by the first defendant and as the recitals in Ext. B-5 would clearly show the intention of the parties, the only conclusion possible is that the document is nothing but an anomalous mortgage as held by the courts below. It has to be noted that the first defendant in an earlier suit (O.S. 82/1954 of the Sub Court Kozhikode) contended that item No. 6 was leased to him to secure the interest under the mortgage. Ext. B-6 mortgage deed does not reveal that possession of any of the items were intended to be given to the mortgagee. 6. When properties are secured as a simple mortgage and the possession of one of the items is given to the mortgagee it can only be an anomalous mortgage. Simple mortgage usufructuary is one category of anomalous mortgage. Ext. B-6 mortgage deed does not reveal that possession of any of the items were intended to be given to the mortgagee. 6. When properties are secured as a simple mortgage and the possession of one of the items is given to the mortgagee it can only be an anomalous mortgage. Simple mortgage usufructuary is one category of anomalous mortgage. One of the characteristics of anomalous mortgage is that the property is collaterally pledged as in the case of a simple mortgage with a covenant to pay and the mortgagee is given the usufruct of it by allowing him to take the rents and profits. It has to be noted that though Exts. B-6 and B-5 were written on two different dates, both documents were registered on the same date. On a consideration of the recitals in the documents it is clear that Ext. B-6 mortgage was executed in favour of the first defendant and possession of item No. 6 was given to him as per Ext. B-5 lease and the intention of the parties was to secure the interest on the mortgage amount due to the first defendant. It is also clear from the evidence of D.W. 1 and from the written statement filed by him in O.S. 82/1954 (Ext. A-2 is the certified copy of the written statement) that Ext. B-5 was executed to secure the interest due to him as per the mortgage. The very recitals in Ext. B-5 that portion of the rent would be adjusted towards the interest of the mortgage would show that the intention of the parties was to create an additional security. D.W. 1admitted that he demanded possession of the property as a condition precedent for advancing the amount to the plaintiffs under the mortgage. In view of D.W. 1'sevidence in this suit as well as in O.S. 82/1954 it has been clearly established that the lease was granted in conjunction with the mortgage as the parties intended only to secure the mortgage amount. Though the periods mentioned in Exts. B-6 and B-5 are not identical, it is clear from the documents and the evidence in the case that the overall intention of the parties was only to create additional security for the mortgage amount. The courts below have rightly held that Exts. Though the periods mentioned in Exts. B-6 and B-5 are not identical, it is clear from the documents and the evidence in the case that the overall intention of the parties was only to create additional security for the mortgage amount. The courts below have rightly held that Exts. B-5 and B-6 form part of the same transaction and therefore defendant's contention that he has leasehold right over item No. 6 is not sustainable. 7. It has been contended that the decision in O.S. 82/1954 would operate as resjudicata as against the plaintiffs. O.S. 82/1954 was filed by the second plaintiff for recovery of item No. 6 on the ground that the lease was granted without his knowledge and consent. That suit was dismissed and the judgment of the lower court was confirmed by the appellate court. There is no force in the contention that the decision in O.S. 82/1954 (Ext. A-3 judgment) would operate as resjudicata as there was no necessity to decide the nature of the lease in that suit. The subject matter in O.S. 82/1954 and that of the present suit are entirely different. In the earlier suit, second plaintiff's stand was that the defendant trespassed into the property. Defendant in that suit contended that he obtained possession of the property on the strength of Ext. B-5 lease arrangement. In the earlier suit, the only question considered was whether the lease set up by the defendant was true and acted upon. Whether the mortgage and lease form part of the same transaction which is the crucial issue in the present suit was not a matter in issue in the earlier suit. The courts below rightly held that the decision in O.S. 82/1954 would not operate as res judicata in the present suit. 8. Counsel for the appellant next contended that at any rate the appellant is a deemed tenant entitled to the benefits of S.7 of the Kerala Land Reforms Act. Counsel for the plaintiffs contended that such a plea is not available to the appellant as he raised a specific lease and failed to prove the same. First defendant (appellant) claimed tenancy rights on the basis of Ext. B-5 only. He has no case that he had possession or leasehold right over the property at any time prior to Ext. B-5. Having failed to establish tenancy rights over the property as per Ext. First defendant (appellant) claimed tenancy rights on the basis of Ext. B-5 only. He has no case that he had possession or leasehold right over the property at any time prior to Ext. B-5. Having failed to establish tenancy rights over the property as per Ext. B-5, it is futile on the part of the first defendant to claim that he is a deemed tenant under the Kerala Land Reforms Act. As the foundation of his claim of tenancy has been found not legally valid he cannot turn round and contend that the should be treated as a deemed tenant under the provisions of the Kerala Land Reforms Act. In 1974 KLT 286 (Kaliyannan v. Narasimha Iyer) it has been held as follows: " person who has set up a specific lease and failed to establish that plea cannot turn round and contend that he should be treated as a deemed tenant under S.7of the Act." In 1973 KLT 1048 (Kunhambu Nair v. Kunhammaru Amma and others) it has been held as follows: "The most important requisite of S.7 is that the occupation must be under the honest belief that he is a tenant, and if the circumstances belie any belief on his part of being a tenant then there is no case to apply S.7. Where a person is found to be not holding under the arrangement of tenancy pleaded by him it would mean that he is not really a tenant and though he may profess to be a tenant he must know that the tenancy set up is false. Irrespective of his attempt to convince others that he is a tenant if he is really not a tenant he cannot certainly say that he honestly believed that he is a tenant." From the facts and circumstances of the case, it is not possible to hold that first defendant honestly believed himself to be the tenant when he admittedly obtained possession over the property under Ext. B-5. In view of the clear recitals in Ext.B-5 he cannot obviously take a stand that when he obtained possession of the property he had honest belief that he got such possession as a tenant. Having got possession of the property under Ext. B-5. In view of the clear recitals in Ext.B-5 he cannot obviously take a stand that when he obtained possession of the property he had honest belief that he got such possession as a tenant. Having got possession of the property under Ext. B-5 which is an anomalous mortgage it has to be held that the first defendant has no leasehold right over the property and he cannot claim the benefit of S.7 of the Kerala Land Reforms Act. We do not find sufficient reasons to interfere with the concurrent findings of the courts below. There is no merit in the appeal and. hence it is dismissed with costs.