Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 810 (KER)

C. Lucy Greya v. Gnanadeepam Daleela

2013-09-11

N.K.BALAKRISHNAN

body2013
Judgment : The defendants are the appellants. The suit was instituted for redemption of a mortgage executed in the year 1962 and for recovery of possession of the mortgaged property. 2. The case of the plaintiff is stated thus : The plaint schedule property originally belonged to the first plaintiff and her husband who is the father of plaintiffs 2 to 5. Ext. A1, the document which is styled as “ottiyum kuzhikanavum” was executed by the first plaintiff and her husband on 3-7-1962 in favour of the mother of the first defendant for a consideration of ` 450/- for a period of six years. The mortgagee (the mother) assigned her mortgage right in favour of the first defendant and thereafter the first defendant and her husband who is the second defendant are in possession of the property. The period of mortgage expired. Since the defendants did not heed to the request for redemption , the suit was filed. 3. The second defendant remained ex parte. The first defendant filed written statement contending that Ext. A1 is not a mortgage but is a kuzhikanam document and that it was obtained by the mother of the first defendant for enjoyment and for residence. The mother executed a settlement deed in favour of the first defendant as per document number 1420/1976 and since then the defendants have been in possession of the property. It is further contended that they have effected improvements to the tune of ` 20,000/-. They contended that they are entitled to fixity of tenure. In the alternative, a plea of kudikidappu was also raised. 4. The question of tenancy raised by the defendants was referred to the Land Tribunal. The Land Tribunal found that the first defendant is entitled to fixity of tenure. Hence, at that point of time, the claim of kudikidappu was not considered by the Land Tribunal. 5. On the basis of the finding entered by the Land Tribunal, the learned Munsiff dismissed the suit. That was challenged in appeal, A.S. 392/1985 . The District Court allowed the appeal. The judgment and decree of the trial court were set aside and the case was remanded to the trial Court for fresh disposal. Again the question of tenancy as well as kudikidappu right claimed by the defendants was referred to the Land Tribunal. That was challenged in appeal, A.S. 392/1985 . The District Court allowed the appeal. The judgment and decree of the trial court were set aside and the case was remanded to the trial Court for fresh disposal. Again the question of tenancy as well as kudikidappu right claimed by the defendants was referred to the Land Tribunal. The Land Tribunal found that the defendants are not entitled to fixity of tenure nor are they entitled to purchase kudikidappu as per the provisions of the KLR Act. Based on that finding, the trial Court granted a decree for redemption on condition of deposit of `450/- being the mortgage amount and also on deposit of `2831/- being the value of improvements. Challenging the same, the defendants filed appeal. The appellate Court concurred with the findings entered by the trial Court and dismissed the appeal. 6. The learned counsel for the appellants submits : Ext.A1 has to be construed as a kuzhikanam document since it was specifically noted that the document is “ottiyum kuzhikkanavum”. A reading of the relevant portion of Ext.A1 would make it clear that the findings entered by the courts below that it only spells out a mortgage and not a kuzhikkanam is unsustainable. Since there are specific recitals conferring right to the grantee to effect improvements and also to construct a house therein, it must certainly be held that it is a ottikuzhikanam as defined under Sec. 2 (39-A) of the KLR Act and not a mortgage and as such the findings entered by the courts below are to be set aside. The definition of 'tenant' contained in Sec. 2 (57) (dd) of the KLR Act would make it further clear that an “ottikuzhikanamdar” is also a tenant because of the inclusive definition given to the word “tenant”. 7. The following substantial questions of law arise for consideration: i) Is not Ext.A1 an ottikuzhikanam deed as defined under Section 2 (39A) and not a mortgage within the meaning of the Transfer of Property Act ? ii) If the first defendant was an ottikuzhikanamdar, is he not entitled to claim fixity of tenure ? iii) Even if it is held that the defendants are not entitled to fixity of tenure, are not the assignees of Ext. A1 entitled to claim kudikidappu right ? 8. As stated earlier, the nomenclature of Ext.A1 document is “ottiyum kuzhikkanavum”. ii) If the first defendant was an ottikuzhikanamdar, is he not entitled to claim fixity of tenure ? iii) Even if it is held that the defendants are not entitled to fixity of tenure, are not the assignees of Ext. A1 entitled to claim kudikidappu right ? 8. As stated earlier, the nomenclature of Ext.A1 document is “ottiyum kuzhikkanavum”. It is true that the grantee has been permitted to effect improvements like planting trees etc. and also to construct a house at a cost of not more than Rs. 400/-. But there is a specific stipulation that on the expiry of six months the grantee has to vacate the premises on payment of the otti amount/mortgage amount to the mortgagee. Therefore the dominant and essential purpose of the transaction evidenced by Ext.A1 was to take a loan and to transfer an interest by way of security for the loan advanced. 9. Mere transfer of possession by way of security and giving permission to effect improvements in the property are not inconsistent with the creation of a mortgage. Therefore, the fact that the grantee was given permission to effect improvements in the property by planting trees etc. and the permission to construct a hut at a cost of not more than Rs. 400/- are also not inconsistent with a mortgage. There is absolutely no stipulation regarding payment of rent. Since that stipulation is conspicuously absent it would bespeak the character of the document as a mortgage and not a lease, for, if it was a lease, then certainly the lessee is bound to pay the periodical rent to the lessor. It is not a document evidencing composite transaction embodying both a mortgage and a lease and, therefore, there is no difficulty to construe the terms of the document as a mortgage. 10. It is also important to note that what was to be paid by the mortgagor for getting redemption was the 'otty' amount of the property on the expiry of six years stipulated under Ext.A1. That also would leave no doubt that the transaction is only a mortgage and not a lease. 11. When the elements of lease are conspicuously absent the contention that Ext. A1 is actually a lease deed cannot be accepted at all. That also would leave no doubt that the transaction is only a mortgage and not a lease. 11. When the elements of lease are conspicuously absent the contention that Ext. A1 is actually a lease deed cannot be accepted at all. The courts below have found the otty amount of `450/- obtained by the grantor at the relevant time was also not an insignificant amount when compared to the value of the property which was then prevalent, it is argued by the learned counsel for the respondents. According to the learned counsel, the sum of `450/- which was received by the mortgagor almost represented the value of the property and there was no provision either for payment of any rent or “pattom” or any “michavaram”. It is pointed out by the learned counsel for the respondents that the stipulation in the document that the value of improvements is to be paid is not inconsistent with a mortgage. It is also pointed out by the learned counsel for the respondents that there is a specific recital in Ext. A1 that the sum of ` 450/- was obtained by the grantor for the purpose of purchasing another property. That itself will makes it clear that it was actually a loan and the intention of the grantor was to obtain the aforesaid sum of ` 450/- and it was only to secure the amount so advanced by the loanee, the property was given to him as a security. The relevant portion of Ext. A1 reads: “Malayalam” 12. The learned counsel for the respondents has relied upon the Full Bench decision of this Court in Velayudhan Vivekanandan v. Ayyappan Sadasivan - 1975 KLT 1 = 1975 KHC 128. In the aforesaid decision it was held : “The amount borrowed is 6601 fanams. The land that was the subject matter of the transaction had only an extent of 43 cents. The amount of consideration that was received almost represented the value of the property at that time considering its location. There was no provision either for payment of any michavaram, rent or pattom. The land that was the subject matter of the transaction had only an extent of 43 cents. The amount of consideration that was received almost represented the value of the property at that time considering its location. There was no provision either for payment of any michavaram, rent or pattom. The direction to pay the Sirkar tax in the document cannot be treated to be “other consideration”, in view of the pronouncement of the Supreme Court in Kunhamina Umma v. Paru Amma - 1971 KLT 163 confirming the view expressed by Madhavan Nair, J. in Kunhamina Umma v. Paru Amma - 1967 KLT 596. The provision in the document that the value of improvements will be paid is not inconsistent with a mortgage. It seems to me evident that the relationship is that of debtor and creditor and that the transfer of possession was by way of security. So there was a mortgage within the meaning of that term as defined in the Transfer of Property Act”. Section 2 (39A) of the Kerala Land Reforms Act, 1963 defines Ottikuzhikanam: “Ottikuzhikanam” means a transfer for consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882. It is argued on behalf of the respondent that notwithstanding the element of enjoyment it can only be treated as a mortgage and not a transaction which can be classified as “ottikuzhikanam”. The intention was to obtain loan and it was to secure that amount the document was created and as such it cannot be held that the transaction is “ottikuzhikanam”. As has been pointed out above, the direction to pay the land tax to the Government cannot be treated as “other consideration” in view of the decision of the Hon'ble Supreme Court in Kunhamina Umma v. Paru Amma - 1971 KLT 163. The learned counsel for the appellants has relied upon the decision of the Supreme Court in Narayanaru Thrivikramaru v.V. Madhavan Potti - 2000 (2) KLT 33 in support of his submission that there are two types of ottikuzhikanam. After referring to the definition contained in Section 2 (39A) the Apex Court in Narayanaru Thrivikramaru (supra) held thus:- “The above definition recognises that there are two types of “Ottikuzhikanam”. After referring to the definition contained in Section 2 (39A) the Apex Court in Narayanaru Thrivikramaru (supra) held thus:- “The above definition recognises that there are two types of “Ottikuzhikanam”. One type would be a mortgage within the meaning of Transfer of Property Act. It is clear that the said type of “Ottikuzhikanam” is specifically excluded from the ambit of the definition. It is the other category of non-mortgage “Ottikuzhikanam” alone has been brought within the purview of the definition. So, even if the nomenclature of the transaction is “Ottikuzhikanam” it should not be a mortgage, if the transaction is to fall within the purview of the definition”. Therefore, according to the learned counsel for the appellant, even if the nomenclature of the document is “ottiyum kuzhikkanam” or Ottikuzhikkanam, it should not be a mortgage, if the transaction would fall within the purview of the definition contained in Sec. 2 (39A) of the KLR Act. Section 2 (57) of the KLR Act defines tenant: [“tenant” means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes : a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration' (aa) an intermediary b) a kanamdar c) a kanam - kuzhikanamdar d) a kuzhikanamdar dd) an ottikuzhikanamdar e) a mulgenidar f) a verumpattamdar of any description (including a customarty verumpattamdar). g) the holder of a chalgeni lease, h) the holder of a kudiyirippu hh) a person holding lands under a kuzhichuvaipum kudiyirippum hhh) the holder of a karaima i) the holder of a vaidageni lease, and j) a person who is deemed to be a tenant under Section 4, Section 4 A, Section 5, Section 6, Section 6A, Section 6B, Section 7 , Section 7 A, Section 7 B, Section 7 C Section 7 D (Section 7 E) Section 8, Section 9 of Section 10, or presumed to be a tenant under Section 11]. Explanation:- For the purposes of this clause,-- i) “holder of a chalgeni lease” means a lessee or sublessee of specific immovable property situate in the taluk of Hosdurg or Kasaragod in the district of Cannanore, who has contracted either expressly or impliedly to hold the same under a lease, whether for a specified period or not ; ii) “mulgeni” means a tenancy in perpetuity at a fixed invariable, rent created in favour of a person called mulgenidar; iii) “vaidageni lease” means a lease for a term of years;”. As has been held by the Supreme Court in Kunhamina Umma v. Paru Amma - 1971 KLT 163 (supra), the payment of Government tax cannot be treated as 'other consideration' as mentioned in Section 2 (57) of the KLR Act. On going through Ext. A1 it is clear that there was no stipulation to pay rent or other consideration to the grantor for allowing the grantee to possess the property. In other words, possession was given only as a security for the loan advanced by the grantee to the grantor. 13. The decision of the Supreme Court in Narayanaru (supra) also does not help the appellants herein since there is no stipulation in Ext.A1 regarding other consideration or payment of rent etc. and as such the transaction cannot be treated as a lease or 'Kuzhikanam' so as to attract the definition in Sec. 2 (57) of the KLR Act. The learned counsel for the appellant has relied upon Sec. 12 of the Act which was relied upon by the Hon'ble Supreme Court in Narayanaru's Case (supra) in support of his submission that notwithstanding anything in the Indian Evidence Act or in any other law for the time being in force or in any judgment/decree or order of Court, any person interested in any land may prove that a transaction purporting to be a mortgage, otti, karipanayam etc. or license of that land is in substance a transaction by way of kanam, kanam kuzhikkakan, kuzhikkanam verum pattam or other lease under which the transferee is entitled to fixity of tenure in accordance with the provisions of Sec. 13 and to the other rights of a tenant under this Act. or license of that land is in substance a transaction by way of kanam, kanam kuzhikkakan, kuzhikkanam verum pattam or other lease under which the transferee is entitled to fixity of tenure in accordance with the provisions of Sec. 13 and to the other rights of a tenant under this Act. The findings entered by the Land Tribunal which were incorporated by the learned Munsiff and confirmed by the lower appellate Court are to the effect that the transaction in question is only a mortgage and not a lease. The terms of Ext. A1 have been well construed to hold that the transaction evidenced is only a mortgage or a loan transaction though possession was given to the grantee for the limited period as stipulated therein . There was no stipulation to pay rent or pattom and as such the argument based on Section 12 of the Kerala Land Reforms Act also does come to the rescue of the appellants. In the light of the Full Bench decision in Velayudhan Vivekananda (supra) I have no hesitation to hold that the transaction evidence by Ext.A1 is only a mortgage and not a lease. The finding to that effect entered by the courts below is only to be confirmed. 14. The next other question that needs consideration is whether the appellants can claim kudikidappu in respect of any portion of the land covered by the mortgage. Admittedly the mortgagee was permitted to put up a house at a cost of not more than Rs. 400/-. Section 105A (2) of the KLR Act says that the Land Tribunal or the Land Board may depute any officer appointed under Sub-section (1) to make local enquiry, investigation or inspection and to collect any data, and the report and the records, submitted by such officer may be used without examining him as evidence in the proceedings before the Land Tribunal or the Land Board. Since the authorised officers are invested with the powers to hold enquiries and make the report after investigation or inspection for the purpose of collecting the relevant data, the reports submitted by such an officer has to be given due weight. The Land Tribunal has relied upon the reports submitted by the Revenue Inspector. It was found that the cost of construction of the house was more than Rs. 1,000/-. The Land Tribunal has relied upon the reports submitted by the Revenue Inspector. It was found that the cost of construction of the house was more than Rs. 1,000/-. It was observed that the monthly income from the property would come to Rs. 450/-. Anyway that may not be of much relevance in the context of the claim made in this case. 15. Section 2 (25) defines kudikidappukaran: “Kudikidappukaran” means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality of five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and - a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead ; or b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and “kudikidappu” means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:” The learned counsel for the appellant would submit that the courts below have not considered in detail the alternate claim made by the defendants/appellants that they are entitled to get kudikidappu right. It is further submitted by Sri. T.R. Harikumar, the learned counsel for the appellants that the courts below proceeded on the premise that it is a hut constructed by the landowner or the person who permitted the kudikidappukaran to occupy the house whereas it is actually a homestead since it was constructed by the person to whom it was given. 16. Admittedly, Ext.A1 stipulates that a hut of a cost of not more than Rs. 400/- as it stood then can be constructed and accordingly a house was constructed in that property. The Land Tribunal says that as per the report of the authorised officer the house was constructed at a cost of Rs. 1,000/- as on the date of construction. Admittedly, Ext.A1 stipulates that a hut of a cost of not more than Rs. 400/- as it stood then can be constructed and accordingly a house was constructed in that property. The Land Tribunal says that as per the report of the authorised officer the house was constructed at a cost of Rs. 1,000/- as on the date of construction. The courts below proceeded to hold that it will not come within the definition of kudikidappu since the cost of construction was more than Rs. 750/-. But so far as a 'homestead' is concerned, the cost of construction is immaterial since it is constructed by the grantee or the person to whom permission was granted to construct the same. 17. The provisos (a) and (b) of Explanation II to Sec. 2 (25) which deal with the cost of construction and the monthly rent (which would have yielded at the relevant time) have application only to a “hut” and not to a “homestead”. Explanation IV (a) to Sec. 2 (25) has also been referred to here which says that where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption:- a) he has no other kudikidappu or residential building belonging to him, or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead; and b) his annual income does not exceed two thousand rupees” Here Explanation IV can have no application since the defendants/appellants are only transferees under the original mortgagee and so it is Explanation V to Section 25 of the KLR Act that has application, the appellant's counsel argues. Explanation V reads: Explanation V-Where a kudikidappukaran transfers his right in the kudikidappu to another person, such person shall be deemed to be a kudikidappukaran, if – a) he has no other homestead or any land in possession, either as owner or as tenant, on which he could erect a homestead; and b) his annual income does not exceed two thousand rupees”. 18. 18. The limitation as to the extent of the land is not specified in Explanation V. It was reported that as per document No. 222/1981 the second defendant who is the husband of the first defendant is in exclusive possession and enjoyment of 3 ½ cents of land in Sy. No. 667 /1/3 of Vattiyoorkavu Village (Thiruvananthapuram District). No evidence whatsoever was adduced by the appellants to show that the aforementioned land is not fit for construction of a homestead. It is stated that the transfer of mortgage right was effected in the year 1976. There is nothing on record to show that the annual income of the second appellant or the second defendant does not exceed Rs. 2000/-. The learned counsel for the respondents would submit that in fact the appellants are having other items of properties also and so the contention that the appellants are entitled to get kudikidappu right is clearly untenable. 19. It was held by this Court in Nellikanduy Valiya Pocker v. Pothachola Bava - 2007 (1) KHC 954 : The cost of construction of not exceeding 750/- rupees at the time of construction and the yield of monthly rent not exceeding 5/- rupees as provided under sub clause (i) and sub clause (ii) of sub-clause (a) of Explanation II is relevant only in respect of a hut as contemplated under clause (b) of sub-section (25). Therefore, for the reason that the cost of construction of homestead exceeds Rs. 750/-and the yield of monthly rent at the time of construction exceeds Rs. 5/.- the claim cannot be disallowed. Therefore on the basis of the report of the Revenue Inspector estimating the cost of construction at Rs. 2000/-, plaintiff is not entitled to contend that defendant is not a kudikidappukaran. Moreover, the cost of construction estimated by the Revenue Inspector was on the basis that the building was constructed in 1970. When the building was constructed a decade earlier, the cost of construction as estimated by the Revenue Inspector can only be rejected. Hence on that basis, it cannot be held that defendant is not a kudikidappukaran”. But so far as the case on hand is concerned, the appellants who claim kudikidappu right are not the mortgagees or persons who were permitted to put up the construction but only the transferees and therefore Explanation V to Sec. 2 (25) would also apply. 20. Hence on that basis, it cannot be held that defendant is not a kudikidappukaran”. But so far as the case on hand is concerned, the appellants who claim kudikidappu right are not the mortgagees or persons who were permitted to put up the construction but only the transferees and therefore Explanation V to Sec. 2 (25) would also apply. 20. Learned counsel for the respondents/plaintiffs submits that in order to contend that the assignee of the mortgagee is entitled to claim kudikidappu the assignor/ mortgagee must be a person entitled to claim kudikidappu. If only the assignor had kudikidappu right he can assign that kudikidappu right in favour of another person and so the appellant has to establish that his assignor was also a kudikidappukaran for which he has to satisfy the requirements of Explanation IV; besides, he has also to satisfy the requirements of Explanation V to Sec.2 (25) of the KLR Act. Therefore, first of all, it must be proved that the assignor was a kudikidappukaran entitled to purchase kudikidappu right and if that is established, then, he being the assignee must prove that he is entitled to claim kudikidappu right for which the condition mentioned in Explanation V are also to be satisfied. The kudikidappu right claimed by the appellant was denied on the ground that her husband had in his possession 3½ cents of land in Vattiyoorkavu village. Sri.T.R.Harikumar, the learned counsel appearing for the appellants has relied upon the decision in Kochappi Achuthan v. M.Sulochana [1971 KLJ 691] in support of his submission that the possession of land by the husband cannot dis-entitle the claim of kudikidappu put forward by his wife. Learned counsel for the respondents would submit that the aforesaid decision was rendered while interpreting the definition under Sec.2 (43) of the KLR Act. Not only that, in that case the possession of the Tharavadu house was dealt with and it was held that the possession of the Tharavadu by the wife cannot attract the disqualification for the simple reason that their possession is not that of the petitioner. The courts below did not focus their attention to the crucial aspect as to whether the possession of 3½ cents of land by the husband would dis-entitle the wife, the appellant herein from claiming kudikidappu right. The courts below did not focus their attention to the crucial aspect as to whether the possession of 3½ cents of land by the husband would dis-entitle the wife, the appellant herein from claiming kudikidappu right. Similarly the question whether the mortgagee (assignor of the present appellants) did satisfy the ingredients of the definition of kudikidappukaran was also not considered. The appellant who claims to be only the assignee has not only to satisfy the ingredients to attract the definition of kudikidappukaran but should also satisfy Explanation V to Sec.2 (25) of the KLR Act. These aspects were not properly adverted to by the courts below. Hence, to that extent a re-consideration is required. In the result, this RSA is dismissed in part. The claim for fixity of tenure made on the premise that the document in question is a lease deed stands dismissed, confirming the decisions rendered by the courts below. The question whether the appellants are entitled to get kudikidappu right is to be re-considered and for that purpose alone, the suit is remanded to the trial court for fresh consideration. Both parties are given opportunity to adduce further evidence in the matter. Parties are directed to appear before the trial court on 18.10.2013. The trial court will dispose of the suit at the earliest.