Sankaran Krishnan v. Gopalan Appukuttan — 1990 DIGILAW 220 (KER)

Judgment :- Shamsuddin, J. 4th defendant in O.S.No.403 of 1963 on the file of the Court of II Additional Munsiff, Neyyattinkara, is the appellant. This Second Appeal came before us on a reference by one of us (Sukumaran, J.) on the question of interpretation of S.4A(1)(a) of the Kerala Land Reforms Act (hereinafter referred to as 'the Act' for short). 2. The matter arises out of a final judgment passed by the learned Munsiff in O.S.No. 403 of 1963, which was a partition suit, the appellant raised a contention that he was entitled to fixity of tenure under s.4A(1)(a) of the Act. Learned Munsiff negative this contention and on appeal to the court of District judge, the finding of the learned Munsiff was confirmed. In this appeal, the counsel for the appellant challenged the finding of the courts below. 3. The dispute relates to a part of C schedule properly. In the preliminary judgment, it was held that the 4th defendant, who is the appellant herein, was entitled to the mortgage right taken release under Ext.P9 dated 13-12-1921. Ext.D12 is the assignment deed in favour of the appellant. There is no dispute that this property was included in the mortgage of 1062, though Ext.D12 did not take in the entire property covered by the mortgage of 1062. The properties other than C schedule properties were sub mortgaged by the mortgagee claiming to be the owner of the properties. In regard to those properties, there is a direction 10 redeem the sub mortgage. The finding in the preliminary decree was that the mortgage was not extinguished and that the 4th defendant was only an assignee of the mortgage right. 4th defendant claimed benefit of S.4A(1) of the Act in respect of a part of plaint C schedule property as he and his predecessors were in possession of this property as mortgagees from 1062. The courts below negative the claim of the 4th defendant on the ground that he was not in possession of the entire land comprised in the mortgage of 1062 for a continuous period of 50 years as on 1-1-1970. 4. In this appeal, learned counsel for the appellant contended that the view taken by the courts below that the mortgagee must be in possession of the entire mortgage properly covered by 1062 mortgage in order to get the benefit of S.4A (1)(a) of the Act is wrong. 4. In this appeal, learned counsel for the appellant contended that the view taken by the courts below that the mortgagee must be in possession of the entire mortgage properly covered by 1062 mortgage in order to get the benefit of S.4A (1)(a) of the Act is wrong. To appreciate the validity of this contention, it would be profitable to quote S.4A(1)(a) of the Act. It reads as follows: "Notwithstanding anything 10 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." The 4th defendant came to possession only on 30-12-1121. But reliance was placed on Explanation II loS.4A (1). Explanation II says that in computing the period of fifty years referred to in Clause (a), 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. It is not disputed that the predecessor of t he 4th defendant was in possession of C schedule properly under a mortgage from 1062 along with other properties. In order to satisfy the requirement of S.4A(1)(a), the, and Th defendant had to rely on the mortgage of the year 1062. Since other lands also comprised in that mortgage, courts below held that it could not be said that the 4th defendant was holding the land comprised in the mortgage of the year 1062. According to the courts below if only the 4th defendant was holding the entire lands comprised in the mortgage of 1062 for 50 years immediately preceding the commencement of the Act, 1969, he was entitled to the benefit of S.4A (1)(a). 5. In Stroud's Judicial Dictionary, the word 'comprise' has been given the meaning 'include'. In Lexicon Webster Dictionary, the word 'comprise' has been given the meaning, 'to comprehend, to contain, to include, to consist of, be made up of, to form, and to make up'. 5. In Stroud's Judicial Dictionary, the word 'comprise' has been given the meaning 'include'. In Lexicon Webster Dictionary, the word 'comprise' has been given the meaning, 'to comprehend, to contain, to include, to consist of, be made up of, to form, and to make up'. In Chambers 20th Century Dictionary, the meaning given for the word 'comprise' is 'to contain, to include, to comprehend, to consist of, and to hold together. On the basis of the meaning given in the above Dictionaries, learned counsel for the appellant argued that the requirement of S.4A (1) (a) is satisfied if C schedule was included in the mortgage of 1062 and that it is not the requirement of law that the entire lands included in the mortgage of 1062 should come into possession of the 4th defendant to enable him to claim the benefit of S.4A (1)(a) in regard to C schedule property. There is substance in the contention of the learned counsel for the appellant. 6. Learned counsel for respondent contended that a mortgage by its very nature is indivisible. He invited our attention to passages at pages 427 and 428 in Mulla's Transfer of Property Act, 7th Edition, dealing with the question of partial redemption. Both in England and India, a part owner or purchaser of part of the equity of redemption is entitled to redeem the whole mortgage, but is normally not entitled to redeem his share only. Learned author states that the reason for the rule is that the disintegration of the mortgage security would result in great injustice, to the mortgagee. Based on the above commentaries made by the learned author the learned counsel for respondent submitted that the indivisibility is the basic feature of mortgage and that therefore an interpretation which would result in disintegration of mortgage should not be adopted. The rule of indivisibility of mortgage is not invariable or absolute and the rule has many exemptions to it. Learned author himself has described some of these exceptions in the commentaries. Indivisibility of a mortgage can be broken by purchase, inheritance or otherwise and in all such cases a partial redemption can be allowed. (See MauIabux v. Sardarmal (AIR 1952 Nag. 341- F.B.), Ananthayya Holla v, Thimmaju Kengsu (AIR 1956 Mad. 293), Kunhi Kalanthan v. P. Madhavi Amma (AIR 1955 Mad.260), ban/fof Poona v. N.G. Housing Society (MR 1968 Bomb.106). Indivisibility of a mortgage can be broken by purchase, inheritance or otherwise and in all such cases a partial redemption can be allowed. (See MauIabux v. Sardarmal (AIR 1952 Nag. 341- F.B.), Ananthayya Holla v, Thimmaju Kengsu (AIR 1956 Mad. 293), Kunhi Kalanthan v. P. Madhavi Amma (AIR 1955 Mad.260), ban/fof Poona v. N.G. Housing Society (MR 1968 Bomb.106). In the instant case the mortgage of 1062 had already disintegrated by sub mortgages and assignments. Therefore, there is no substance in the contention that an interpretation which would lead to disintegration should not be adopted. 7. S.4A starts with a non-obstinate clause, namely notwithstanding anything contained in any law or in any contract, custom or usage or in any judgment decree or order of court. The Transfer of Property Act also come within the purview of this non-obstinate clause. It means that provisions of Transfer of Property Act cannot stand in the way of application of S.4A of the Act. 8. Learned counsel for the respondent heavily relied on a Full Bench ruling of this Court in K.P. Muhammed and Others v. Mayadevi (1971 KLT 284). The question that arose in that case was whether antecedent obligations of the mortgagee prior to the date when Act 35 of 1969 came into force, were jettisoned or got rid of by reason of the provisions contained in S.4A of the Act converting the mortgage coming within the purview of that Section to a deemed tenancy. The Full Bench held that there was only a superimposition of character of a tenant on a mortgagee, not a of the character of the mortgage to that of a tenant so as to take effect from the very inception of the transaction. In our view, this decision has no bearing on the issue, which has to be decided in this case. 9. Learned counsel for the respondent also placed reliance on the decision in Thommen Joseph v. Ouseph Chacko (1965 KLT 227) and Kunhi Raman Ambalavasi v. Lekshmidevi Ammal (1960 KLT. 189). The question that considered in both these decisions was whether in order to apply S.11(6) of the Agriculturists Debt Relief Act, the entire property mortgaged must have been the subject matter of the leaseback and whether the parties to the transaction of mortgage and lease back should be identical. This was answered in the affirmative in the above decisions. 189). The question that considered in both these decisions was whether in order to apply S.11(6) of the Agriculturists Debt Relief Act, the entire property mortgaged must have been the subject matter of the leaseback and whether the parties to the transaction of mortgage and lease back should be identical. This was answered in the affirmative in the above decisions. However, we are of the view that these decisions are not relevant in considering the question whether the disputed land comprised in the sub mortgage should be the entirety of the land taken in by the mortgage. 10. In Chellappan Pillai v. Parameswaran Pillai (1980 KLT 206), a learned Single Judge of this Court considered the question whether a sub mortgagee was entitled to claim benefit of Section 4A(1)(a) of the Act. This Court held that sub mortgage is created by partially transferring the mortgage and the sub mortgagee is thus a derivative mortgagee owning part of the mortgage and that he is to a limited extent assignee of the mortgage and such a sub mortgagee is entitled to the protection of S.4A(1)(a) if other conditions of the section were fulfilled. 11. Again the same question came up for the consideration of a Division Bench of this Court in Padmanabha Pillai v. Bhaskara Pillai (1988 (1) KLT 196). Dealing with the question, the Division Bench said: - "13. From the scheme of the provision it is seen that the provision is intended to benefit the mortgagee in possession of land and the lessee under the mortgagee. If the person in possession is a lessee of the property, it is unnecessary to make any specific provision since he can ba tenant as defined in the Act. The provision is intended to benefit the mortagee with possession of land or tenant of the mortgagee. It has been clarified that 'mortgagee' includes 'predecessor-in-interest of the mortgagee'. We do not find anything in the provision to indicate that the legislature intended that the expression 'mortgagee with possession of land', should not be taken to include 'sub mortgagee with possession of land"' 14. The expression 'mortgagee' is not defined in the Act. It has been clarified that 'mortgagee' includes 'predecessor-in-interest of the mortgagee'. We do not find anything in the provision to indicate that the legislature intended that the expression 'mortgagee with possession of land', should not be taken to include 'sub mortgagee with possession of land"' 14. The expression 'mortgagee' is not defined in the Act. As defined in S.58 of the Transfer of Property Act "a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability". The transferor is called mortgagor and the transferee mortgagee. The full owner can of course execute a mortgage; even a person who does not have full right in the property such as mortgagee can execute a mortgage. Where a mortgagee in turn executes a mortgage, i.e. a sub mortgage that also is a transfer of an interest in immovable property for the purpose of securing the payment of money. Transferor is a mortgagor and the transferee is a mortgagee. Where the mortgagor himself is only a mortgagee and he himself executes a mortgage he is called as a sub mortgagee; however the transaction is a mortgage governed by the provisions of Chapter V of the Transfer of Property Act. There is nothing in S.4A of the Land Reforms Act indicating any legislative intent to the effect that "mortgagee" excludes "sub mortgagee"." We are in respectful agreement with the view expressed by the Division Bench. No doubt, in the instant case, it is only part of the land included in the mortgage of 1062 M.E.that came to the possession of the 4th defendant by virtue of Ext.P9, but, nevertheless he is a mortgagee of the land comprised or included in the mortgage of the year 1062. In the light of Explanation II to S.4A(1)(a) the possession of predecessor of the 4th defendant has also to be taken into account in reckoning the total period of continuous possession of not less than 50 years contemplated under S.4A(1)(a). So construed the 4th defendant qualifies himself to be considered as a deemed tenant. 12. In the light of Explanation II to S.4A(1)(a) the possession of predecessor of the 4th defendant has also to be taken into account in reckoning the total period of continuous possession of not less than 50 years contemplated under S.4A(1)(a). So construed the 4th defendant qualifies himself to be considered as a deemed tenant. 12. The intention of the legislature as can be gathered from the statement of objects and reasons for introducing the legislation and the scheme behind such a piece of legislation is to confer fixity on persons who are in uninterrupted possession for along period as tillers of the soil. It is a well settled canon of interpretation that in interpreting beneficial and social welfare legislations an interpretation which would give effect to the avowed object of the legislation has to be adopted in preference to an interpretation which will deny such benefits to such class of people who are intended to be benefited. S.4A(1)(a) being a section in a beneficial legislation intended to benefit the tillers of the soil; an interpretation that would achieve that object should be adopted in preference to an interpretation, which negative such rights. Viewed in this angle also, we are inclined to hold that the expression 'comprised' in S.4A(1)(a) is wide enough to include also cases where mortgagees are in possession of only a portion of land and not all lands or entire lands, included in the original mortgage. If such mortgagee was holding that land for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act 1969, it has to be held that he would be entitled to the benefit of S.4A (1)(a). 13. In the light of the above discussion, we hold that the 4th defendant is a deemed tenant in respect of C schedule property in his possession. 14. In the final judgment, C schedule property which is the subject matter of Ext.P9 has not been clearly demarcated or determined. We therefore direct the lower court to determine the identity and extent of that part of C schedule property in the possession of the 4th defendant in respect of which the 4th defendant claims fixity of tenure based on S.4A(1) (a) of the Act. We therefore direct the lower court to determine the identity and extent of that part of C schedule property in the possession of the 4th defendant in respect of which the 4th defendant claims fixity of tenure based on S.4A(1) (a) of the Act. In the result, the appeal is allowed, the final" judgments and decrees of the courts below are set aside in so far as they hold that 4th defendant is not entitled to benefit of S.4A(1)(a) of the Act in respect of C schedule property in his possession and it is declared that the 4th defendant is a deemed tenant entitled to the benefit of S.4A(1)(a) of the Act in respect of such land. The appellant will be entitled to refund of court fee paid on Memorandum of Appeal. Parties will appear before the lower "court on 16-2-1990. The appeal was posted at the request of counsel for the respondent for being spoken to today. Both sides were heard. Learned counsel for the respondents pointed out that since the 4th defendant is in possession of only a part of C schedule property, that position may be made clear by adding the words' part of before the word's schedule" in paragraph 13 of the judgment. We feel that the suggestion made by the learned counsel is acceptable. So we add the words "part of before the words "C schedule" in paragraph 13 of the judgment. 3. Learned counsel for respondents also pointed out that in view of the modification of the final decree, there should be a direction for passing a revised final decree. This suggestion is also accepted and the court below is directed to pass a revised final decree in the light of the judgment. 4. The date originally fixed for appearance of parties was 16-2-1990. Since the date is over, we direct the parties to appear before the court below on 6-8-1990.