JUDGEMENT :- Defendants 3, 5 to 8 and 12 to 15 in a suit for redemption of a mortgage and for recovery of possession of the plaint schedule property are the appellants. They are the legal representatives of the deceased second defendant. The respondent is the plaintiff. 2. The plaint schedule property, having an extent of 68 cents with a building thereon, was mortgaged to one Kumara Pillai for an amount of Rs. 294/- on 7-1-1923 ME. The first defendant is an assignee of the rights of Kumara Pillai under the mortgage as per deed dated 6-12-1954, and be settled his rights over the plaint schedule property and three others to the second defendant by the deed of settlement Ext. D1, dated 6-11-1964. The suit was filed meanwhile for redemption and re­covery of possession, in the year 1961. 3. A preliminary decree for redemption was passed on 22-11-1962. The plaintiff thereafter filed I.A. No. 5885 of 1965 for the passing of final decree. At the initial stages, the only objection of the second defendant was regarding the value of improvements payable, but after the amendment to the Kerala Land Reforms Act, 1963 (the Act) by Act 35 of 1969, he raised additional objections claiming the benefit of deemed tenancy under S.4A(1)(b) of the said Act. His case was that he satisfied the prescribed requirement name­ly that the mortgage had constructed a building in the property for his own residence and that he was occupying the building for such purpose for a continuous period of not less than twenty years immediately preceding the commencement of the amending Act 35 of 1969, namely 1-1-1970. He also pleaded that he was not precluded by the proviso to the Section from claiming the benefit thereof as the extent of his other holdings was less than two acres as on the relevant date namely 16-8­-1968 when the Kerala Land Reforms (Am­endment) Bill 1968 was published in the Official Gazette. 4. The trial Court passed a final decree on 9-7-1970 holding that the second defendant was "possessed of more than two acres of land" and was not therefore entitled to fixity of tenure under S. 4A(1)(b) because of the exclusion contained in the proviso thereto. 4. The trial Court passed a final decree on 9-7-1970 holding that the second defendant was "possessed of more than two acres of land" and was not therefore entitled to fixity of tenure under S. 4A(1)(b) because of the exclusion contained in the proviso thereto. He did not go into the other question whether the mortgage had constructed a building for his own residence and whether he had occupied it continuously for not less than twenty years prior to 1-1-1970 - another requirement of S. 4A(1)(b) - apparently because of his view that the mortgage became disentitled to any benefit as his holdings exceeded two acres. An appeal A.S. No. 15 of 1971 was taken to the District Court, Alleppey by the second defendant, which was allowed and the matter remitted to the trial Court with a laconic judgement dated 18-12-1972. The judgement is significant for its brevity. The court noted that the only point arising for consideration was whether the second defendant was entitled to the benefits of S. 4A of the Act as amended. The court stated that the trial Court had, without adverting to the evidence on record, come to the finding that he was not entitled to fixity of tenure under the Act. He thereafter proceeded to state : "......... but it is in evidence that the second defendant or his predecessor-in-interest has constructed the building for his own residence on the mortgage property and he was occu­pying such building for such purposes for a continuous period of not less than twenty years. I therefore find that the lower Court's finding is incorrect and it is set aside. The case is remanded to the lower Court for fresh disposal according to law." 5. There was no appeal from this order. After the matter came back, the Munsiff passed a revised judgement and final decree for redemption and recovery of possession on 18-7-1973. He held that the District Court had in the order of remand held that the second defendant had constructed the building for his own residence and that he was occupying the building for such purposes for a period of not less than 20 years. This finding had in the absence of an appeal become final. He held that the District Court had in the order of remand held that the second defendant had constructed the building for his own residence and that he was occupying the building for such purposes for a period of not less than 20 years. This finding had in the absence of an appeal become final. Even otherwise, there was clinching evidence to show that the building in the property was more than twenty years old on the date of commencement of the Act namely 1-1-1970, that it was put up by the mortgage and that he had been continuously occupying the same for residential purpose for more than twenty years prior to 1-1-1970. One of the quali­fications for deemed tenancy under Section 4A(1)(b) was thus satisfied. The Munsiff however held that the second defendant was precluded from claiming the protection under the Section because the extent of his holdings on the relevant date exceeded two acres and therefore the proviso to the Section operated against him. A final decree was accordingly passed. 6. The second defendant's appeal against this decree was disposed of by the Sub­ordinate Judge by judgement dated 25-3-1976. The appeal was allowed and the matter remitted to the trial Court again for fresh disposal acceding to the second defendant's prayer to be afforded an opportunity to adduce evidence to show that he was not in possession of two acres of other land on the relevant date. It was stated categorically that the remit was only for considering the ques­tion whether the mortgage was entitled to fixity of tenure under S. 4A(1)(b). The appellate Court did not advert to the other question about the construction of the build­ing or its occupation. No finding was ren­dered thereon. 7. This judgement was also not made the subject of any appeal. After remit, the trial Court dealt with the matter again on 22-11-­1979. This time he upheld the second defen­dant's claim for protection under S. 4A(1)(b) of the Act. The Court held that the finding on the question regarding construction of build­ing by the mortgage and its occupation by him for not less than twenty years stood concluded by the first judgement of the District Court in A.S. No. 15 of 1971 and was not open for reconsideration. The Court held that the finding on the question regarding construction of build­ing by the mortgage and its occupation by him for not less than twenty years stood concluded by the first judgement of the District Court in A.S. No. 15 of 1971 and was not open for reconsideration. He held further that the second defendant was not in possession of other land in excess of two acres and therefore was not precluded by the proviso to the Section from claiming the benefit thereof. 8. The plaintiff appealed and by his judgement dated 20-6-1990, the District Court allowed the appeal and negatived the second defendant's claim of deemed tenancy under S. 4A(1)(b). It is this judgement and decree that form the subject of this appeal. 9. The District Court has held against the second defendant on both the points that were in issue regarding the applicability of Section 4A(1)(b). He held that the decision in A.S. No. 15 of 1971 did not contain any final decision on the question whether the mortgage had put up a building for residence in the mortgaged property and whether he had been in occupation of the same for such purposes for a period exceeding twenty years. The question whether this condition prescrib­ed by S. 4A(1)(b) was satisfied was therefore open for consideration. The Court then went into the question, and found on a discussion of the evidence that the building must have been put up by Kumara Pillari, (the original mortgage) in 1124 M.A. or later, though reliable evidence of the date of its construc­tion was not available. However and even assuming that the construction was in 1124 ME, it was not established that the first defendant was continuously residing in the building from 1954 when he obtained the assignment of the mortgage right up to 1964, when he settled his rights on the second defendant. The second defendant occupied it only thereafter i.e. from 1964. The require­ment of S. 4A(1)(b), of construction and occupation of the building for residence by the mortgage continuously for a period of not less than twenty years prior to 1-1-1970 was not therefore satisfied. It was also held on a consideration of the evidence that the second defendant was in possession of land exceeding two acres in extent on 16-8-1968. He was therefore not entitled to claim the benefit of S. 4A(1)(b) because of these reasons. 10. It was also held on a consideration of the evidence that the second defendant was in possession of land exceeding two acres in extent on 16-8-1968. He was therefore not entitled to claim the benefit of S. 4A(1)(b) because of these reasons. 10. Counsel for the appellants challenges both these findings. The question for con­sideration is therefore whether these findings entered by the appellate Court are correct or not. 11. Before going into these questions, I shall read the relevant portions of S. 4A. "4A. Certain mortgages and lessees of mortgages 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, mortgage with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgage of such land shall be deemed to be a tenant if; (b) the mortgage or lessee has constructed a building for his own residence on 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 mortgage 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; Explanation III. For the purpose of clause (b), (i) "mortgage" or 'lessee' shall include a predecessor-in-interest of the mortgage or lessee, as the case may be; (ii) "building" include a hut. Explanation IV. For the purpose of clause (b), (i) "mortgage" or 'lessee' shall include a predecessor-in-interest of the mortgage or lessee, as the case may be; (ii) "building" include a hut. Explanation IV. In computing the period of twenty years referred to in clause (b), occupation of the building by any member of the family of the mortgage or lessee for residential purpose shall be deemed to be occupation by the mortgage or lessee, as the case may be, for such purpose." The combined effect of sub-clause (b) and of the proviso thereto (read with the Expla­nations), is to require, inter alia, two condi­tions to be satisfied before a mortgage with possession of land could be deemed to be a tenant namely : (a) that the mortgage had constructed a building for his residence in the mortgaged property and that he was occupy­ing the building for that purpose for a continuous period of not less than twenty years prior to 1-1-1970; and (b) that the mortgage was not holding any other land (i.e. land other than the mortgaged property) exceeding two acres in extent on 16-8-1968, the term "mortgage" in both these clauses including his predecessor-in-interest also. These conditions are cumulative and both have to be satisfied before a mortgage could claim to be a deemed tenant under S. 4A. 12. I shall consider the second of these aspects in the first instance. The lower appellate Court has found that the mortgage, second defendant, was in possession of 2.07 acres of other land as on 16-8-1968. This is comprised of three items of properties, namely items 1, 3 and 4 in the deed of settlement Ext. D1, item No. 2 therein being the mortgaged property, forming the subject matter of the suit. The lower appellate Court held that these items with extents of 1.45 acres, 50 cents and 12 cents respectively aggregating 2.07 acres, formed part of the second defendant's holdings as on 16-8-1968 and therefore he was hit by the proviso to S. 4A(1)(b). 13. There is no dispute regarding item No. 1, which has an extent of 1.46 acres. The main dispute in both the courts below, as well as in this Court centered on the 50 cents of land in item No. 3, which was held by the donor first defendant, and also by the second defendant under a mortgage. 13. There is no dispute regarding item No. 1, which has an extent of 1.46 acres. The main dispute in both the courts below, as well as in this Court centered on the 50 cents of land in item No. 3, which was held by the donor first defendant, and also by the second defendant under a mortgage. The contention was that in reckoning the extent of the second defendant's holdings, this land held under mortgage has to be eschewed from consid­eration. The trial Court agreed with this view, but not the appellate Court, who relied on the decision of a Division Bench of this Court in Govinda Pillai v. Taluk Land Board, Parur, 1977 Ker LT 258 : (AIR 1978 NOC 265), to hold that this also formed part of the second defendant's holdings for the purposes of the proviso to S. 4A(1)(b). 14. The remaining item is item No. 4 with an extent of 12 cents which was also reckoned as part of the second defendant's holdings. Before the courts below, no dispute had been raised about this item or its liability to be taken into account. But before me, a faint argument was raised at the time of arguments that no present right over this item vested in the second defendant, justifying its inclusion in his holdings as on 16-8-1968. The conten­tion raised was that possession of this item had not been given to the second defendant under the settlement Ext. D 1, which operated only as a Will and not as a gift, so far as this item was concerned. 15. I shall deal with this last point in the first instance. I have already noticed that this was not a point raised before either of the courts below, both of whom had proceeded on the assumption that this was part of the admitted holdings of the second defendant. Under the deed of settlement Ext. D1, pos­session of items 1 to 3 was delivered to the second defendant. So far as item No. 4 was concerned, the first defendant reserved to himself the right to take the yield therefrom during his lifetime, after which alone posses­sion was to go to the second defendant. The contention is that Ext. D1 was a Will regard­ing item 4 and not a gift, granting rights in present to the second defendant. I am unable to agree. A perusal of Ext. The contention is that Ext. D1 was a Will regard­ing item 4 and not a gift, granting rights in present to the second defendant. I am unable to agree. A perusal of Ext. D 1 shows that the rights over all the items had been settled on the donee. The donor reserved to himself only the right to take the usufructs from item 4 by making use of the property during his lifetime. A Will operates only on death, and rights vest thereunder only on the death of the testator. A Will is besides liable to be revoked by the testator, while a gift which has taken effect cannot be cancelled. There is nothing in Ext. D 1 to indicate that there was a post­ponement of the vesting of rights in the second defendant till after the death of the first defendant. There is also nothing to indicate that the first defendant retained proprietary rights over the property till his death. No power of revocation is reserved in the settlor to indicate that it was intended to operate only as a Will over item 4. On the other hand, the only right that the first defendant retained for himself was the right to take the usufructs during his lifetime and to enjoy the property. I am not satisfied that Ext. D1 bears the construction which the second defendant wants to place on it. This contention raised for the first time at the time of arguments in this Court that there was no vesting at all of item 4 on the second defen­dant as on 16-8-1968 is not valid or sustain­able on the terms of Ext. D 1, and has only to be rejected. 16. I shall now come to the main question which had been agitated before both the courts below, regarding item 3 with an extent of 50 cents. The proviso to S. 4A(1)(b) lays down that a mortgage satisfying the main part of the Section shall nevertheless not be deemed to be a tenant if he was holding any other land exceeding two acres in extent on the relevant date, namely 16-8-1968. The proviso to S. 4A(1)(b) lays down that a mortgage satisfying the main part of the Section shall nevertheless not be deemed to be a tenant if he was holding any other land exceeding two acres in extent on the relevant date, namely 16-8-1968. Section 2(59) of the Act defines the expression "to hold land" as meaning "to be in possession of land as owner or tenant or partly as owner and partly as tenant or in respect of land owned by the Government to be in occupation either as lessee or otherwise". The contention of the appellants is that possession either as owner or as tenant or partly as owner and partly as tenant is necessary before any person can be said to hold the land. So far as item No. 3 of Ext. D 1 is concerned, the settlor and the second defendant were in possession as mortgages and not as owner or as tenant or partly as owner and partly as tenant and therefore the second defendant was not "holding" the land, item No. 3, as defined in S. 2(59), thereby leaving it out of the reckon­ing in computing the extent of land held by the second defendant. In Govinda Pillai's case, 1977 Ker LT 258 : (AIR 1978 NOC 265), a Division Bench of this Court consisting of Gopalan Nambiar, Ag. C.J. and Kochu Thommen, J. had occasion to consider the scope of S. 2(59) in relation to proceedings arising under the ceiling provisions of the Act. In that context, the Division Bench upheld the contention of the State that lands in the possession of a person as a mortgage were also liable to be taken into account in computing the extent of excess land held by him. They observed :­- "Besides even the definition of the term "to hold land" under S. 2, clause (59) of the Act cannot be said to be wholly unrelated to the possession of a mortgage. The definition no doubt refers only to the possession as owner or as tenant or partly as owner and partly as tenant. But when we turn to the definition of the word 'tenant' under S. 2(57) it includes a large variety of 'deemed tenants' under Ss. 4A, 5, 6, 6A, 6B and so on. Under many of these Sections, mortgages of a particular brand and subject to certain requirements are brought in. But when we turn to the definition of the word 'tenant' under S. 2(57) it includes a large variety of 'deemed tenants' under Ss. 4A, 5, 6, 6A, 6B and so on. Under many of these Sections, mortgages of a particular brand and subject to certain requirements are brought in. Section 4A for instance deals with the mortgages with possession. Section 6 deals with mortgages in possession in the Cochin area. In the light of these provisions, the mortgages are paraded or made to masquerade as tenants and their possession is taken into account for the purpose of the Act. We are therefore of the opinion that although expressly the definition of 'to hold land' under S. 2, clause (59) is related only to lands held as owner or as tenant, it is not to be understood in this restricted sense for the purpose of working out the ceiling provision of the Act, which we have sketched earlier." This decision which had delineated the scope of S. 2(59) must equally apply to a case under S. 4A(1)(b) as well. Counsel for the appellants would however maintain that the decision, having been rendered in the context of S. 84 of the Act, it cannot apply to a case falling under S. 4A(1)(b). I do not find any warrant for this submission. Section 2(59) is applic­able equally to S. 4A as to S. 84. No dis­tinction is made between the two. If lands in possession as a mortgage are liable to be treated as lands held by a person, it must be so whether the question is considered with reference to S. 84 or S. 4A. The subject or the context of S. 4A do not justify a departure from the general construction placed on it by the Bench. The Act has created a series of deemed tenancies, and many transactions which were otherwise mortgages under the Transfer of Property Act have been trans­formed and deemed to be tenancies under the Act. Section 4A is itself a classic example of a pure and simple mortgage being treated as a tenancy depending upon the duration of the occupation. The nomenclature of the trans­action as a mortgage does not therefore carry any special sanctity to take the possession thereunder out of the purview of S. 2(59) or the proviso to S. 4A(1)(b). Section 4A is itself a classic example of a pure and simple mortgage being treated as a tenancy depending upon the duration of the occupation. The nomenclature of the trans­action as a mortgage does not therefore carry any special sanctity to take the possession thereunder out of the purview of S. 2(59) or the proviso to S. 4A(1)(b). There is also no material placed to show that the transaction under which item No. 3 is held was really a mortgage, or that it has been treated as not a tenancy under the Act. The appellants have no case that they have been or are attempted to be redeemed out of the property item No. 3 or that any proceedings have beep initiated in that regard. Section 4A is intended to sub-­serve the social purpose of a benefit to small holders, who may otherwise be driven out of their holdings, despite their long possession. The object of the proviso to S. 4A(1)(b) is to confine the benefit of the Section to real small holders, who are not in possession of land in excess of two acres. A person in possession of a large extent of holding does not deserve the benefit of deemed tenancy under S. 4A. This purpose of the Section will stand defeated if lands held under mortgage are taken out of the purview of the proviso, when it may well happen that the mortgage may turn out to be a deemed tenancy under the Act. I do not therefore find any reason to make a distinc­tion between S. 4A and S. 84 on this part or to take the view that S. 2(59) as construed in Govinda Pillai's case (AIR 1978 NOC 265) (Kerala) will not apply to S. 4A. 17. I must note here that S. 4A confers a right which is otherwise not available by creating a fiction of tenancy based on long possession. A serious inroad is made into the rights of the mortgagor. The Section has therefore to be strictly construed, and a person claiming benefit under the Section must fully satisfy all the conditions prescribed therein (vide Khalid, J. in Poonamma Pillai v. Bhaskaran Nair, 1978 Ker LT 327).