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2017 DIGILAW 411 (KER)

P. T. Yoosuf v. Vadakkoottu Krishnankutty Nair

2017-02-27

K.RAMAKRISHNAN

body2017
JUDGMENT K. Ramakrishnan, J. 1. The defeated plaintiffs in OS.No.73/1982 on the file of the Munsiff Court, Wadakkanchery are the appellants herein. The suit was filed by the plaintiffs for redemption of mortgage in respect of the plaint schedule properties. The case of the appellants in the plaint was that the suit properties belonged to the predecessor in interest of plaintiffs and defendants 10 to 12 namely Moideenkutty. He, as per Ext.A3 mortgage deed of the year 1094 ME, executed a possessary mortgage in favour of one Kuttikrishnan Nair. Thereafter the mortgagor executed Ext.A5 superior mortgage in respect of the plaint schedule properties in the year 1097 ME in favour of one Manikka Mudali. As per the terms of the superior mortgage, Manikka Mudali has to redeem the mortgage executed in favour of Kuttikrishnan Nair. Later Manikka Mudali assigned his right over the properties in favour of Kuttikrishnan Nair in the year 1098 as per Exts.A6 to A8. Kuttikrishan Nair was in possession of items 3 and 4 and other properties are in the possession of the tenants. According to the plaintiffs, Kuttikrishnan Nair got rights of the lessees in the year 1098 ME and obtained actual possession of items 1, 2 and 5 also. By subsequent assignments, item No.1 came into possession of the first defendant, item No.2 in the possession of the second defendant, item No.3 in the possession of the 3rd defendant, item 4 in the possession of the 5th defendant and item 5 in the possession of 4th and 5th defendants respectively. According to the plaintiffs, the mortgage executed in favour of Manikka Mudali of the year 1097 ME still subsists and they are entitled to get redemption of mortgage right by virtue of equity of redemption devolved on them on the death of their predecessor. Though a notice has been issued to the defendants, they did not surrender possession. That prompted the plaintiffs to file the suit for redemption of mortgage and recovery of possession with mesne profits. 2. Defendants 1, 2, 4, 5 to 9, 14, 16, 20 and 21 resisted the suit. 3. The first defendant filed a written statement disputing the mortgage alleged in the plaint. According to him, item No.1 was taken by one Narayana Menon in the year 1105 ME on lease from Paliyam Tharavad. 2. Defendants 1, 2, 4, 5 to 9, 14, 16, 20 and 21 resisted the suit. 3. The first defendant filed a written statement disputing the mortgage alleged in the plaint. According to him, item No.1 was taken by one Narayana Menon in the year 1105 ME on lease from Paliyam Tharavad. On his death, by virtue of the Will executed by him, his rights devolved on his daughter, who assigned her rights as per Ext.B9 dated 26.6.1953 in favour of one Ammaluamma. In partition in the family of Ammaluamma, the property was set apart to her daughter's thavazhi. From the said thavazhy, the first defendant and his family members got the property by virtue of a mutual assignment deed. In a subsequent partition in the family of the first defendant, the property was set apart to the share of the first defendant and three others. They have obtained purchase certificate in the year 1976. According to him, Moitheenkutty was enjoying the property on a licence arrangement and he had surrendered the property in the year 1105 ME itself. Subsequent to that, it was taken on lease by Narayana Menon. The first defendant disputed the right of the plaintiffs to redeem the property and he also disputed that the plaintiffs are the legal representatives of Moitheenkutty and he prayed for dismissal of the suit. 4. The second defendant filed a written statement in which he had admitted the mortgages mentioned in the plaint. But he contended that Kunhimohammed, son of Moitheenkutty relinquished the entire right over the property in favour of jenmi Paliyam Tharavadu in the year 1105 ME and item Nos. 1 and 2 were taken on lease by Narayana Menon, who is none other than her father, on lease from the Jenmi Paliyam Tharavadu. Subsequent to the death of her father, it devolved on her. By subsequent transactions , item No.1 has gone to the hands of strangers and she claims absolute possession of item No.2. According to her, the mortgage did not subsist and even if the mortgage subsists, she is entitled to get fixity of tenure under the Kerala Land Reforms Act. She had also disputed the right of the plaintiffs that the plaintiffs are the legal heirs of Moitheenkutty and their entitlement to file the suit for redemption. 5. The 4th defendant contended that he does not hold any property as alleged in the plaint. She had also disputed the right of the plaintiffs that the plaintiffs are the legal heirs of Moitheenkutty and their entitlement to file the suit for redemption. 5. The 4th defendant contended that he does not hold any property as alleged in the plaint. Pursuant to an exchange deed in the year 1965, he along with his wife obtained rights over 1 Acre and 39 cents of properties situated in Survey No.897/2. Out of the said property, 69 cents was acquired for an irrigation canal and 68 cents was sold to third parties and the remaining 2 cents was set apart for a way for ingress and egress to the properties set apart to the 6th defendant. By subsequent exchange deed, he and his wife obtained rights over the property. He had also contended that the plaintiffs are not entitled to get any relief and prayed for dismissal of the suit. 6. The 5th defendant contended that he is not in possession of any portion of the plaint schedule property but he claims to be in possession of 23 cents in Sy.No.897/2. The said property was outstanding on lease with one Moitheenkutty in the year 1122 ME and by a subsequent assignment in favour of the father of the defendant, 60 cents along with this 23 cents devolved on his father. On the death of the father, the rights over the property devolved on this defendant and his family members. They obtained jemn right over the properties. He had also disputed the right of existence of mortgage right in the plaintiffs and the right of the plaintiffs to redeem the mortgage. He also prayed for dismissal of the suit. 7. According to the 6th defendant in his written statement, plaint item No.4 was taken on lease by him from one Kunnu Nair in the year 1918 after executing a lease deed in favour of the jenmi. He had constructed a building therein and he obtained jemn right later. So he has become the absolute owner of item No.4. He also contended that the mortgage did not subsist. According to him, the rights of Moitheenkutty were relinquished by his son in favour of the jenmi and thereafter the successor in interest of Moitheenkutty ceased to have any right over the property. He also contended that he is also entitled to get fixity of tenure under the Kerala Land Reforms Act. 8. According to him, the rights of Moitheenkutty were relinquished by his son in favour of the jenmi and thereafter the successor in interest of Moitheenkutty ceased to have any right over the property. He also contended that he is also entitled to get fixity of tenure under the Kerala Land Reforms Act. 8. Defendants 7 to 9 filed joint written statement contending that they were not in possession of any portion of the plaint schedule property and they are not answerable for the past profits or mesne profits. They further contended that they have no objection in executing a reconveyance if the mortgage amount or other amounts is legally due. 9. Defendants 14 and 15 filed joint written statements who are the legal heirs of deceased 5th defendant. They adopted the contentions of the 5th defendant. They also contended that they are also residing in the building situated in the property and they are not liable to surrender the properties to the plaintiffs. 10. The 20th defendant, who was a minor, was represented by Court guardian and he supported the claim of the plaintiffs. 11. The 21st defendant filed written statement adopting the contentions of the 6th defendant In the additional written statement filed by him, he contended that Moitheenkutty has left behind only one son by name Kunhi Mohammed and the suit for redemption is barred by limitation. 12. The other defendants remained ex parte. 13. In order to prove the case of the plaintiffs, Pws 1 and 2 were examined and Exts.A1 to A19 were marked on their side. In order to prove the case of the contesting defendants, Dws 1 to 3 were examined and Exts.B1 to B27 were marked on their side. After considering the evidence on record, the trial court came to the conclusion that the mortgage did not subsist and the suit is barred by limitation and the contesting defendants are entitled to get protection under Section 4 A of the Kerala Land Reforms Act and also held that the first defendant is the absolute owner of the properties and dismissed the suit. The Court below also found that the 6th defendant is entitled to get fixity of tenure who died pending suit and 21st defendant is impleaded as his legal representative. The Court below also found that the 6th defendant is entitled to get fixity of tenure who died pending suit and 21st defendant is impleaded as his legal representative. The second defendant is entitled to fixity of tenure over item No.2 and since the plaintiffs had failed to identify the properties in the possession of the 5th defendant, whose legal representatives were impleaded as supplemental defendants 14 to 20, the plaintiffs are not entitled to get any relief against them. The Court below also found that the 6th defendant is not entitled to get value of improvements as claimed and ultimately dismissed the suit. 14. Dissatisfied with the decree and judgment of the trial court, the plaintiffs filed AS.No.68/1990 before the District Court, Thrissur and the First Additional District Judge by the impugned judgment found that the suit is barred by limitation and also found that the contesting defendants are entitled to get the benefit of Section 4A of the Kerala Land Reforms Act and dismissed the appeal. Aggrieved by the same. The present second appeal has been preferred by the dissatisfied plaintiffs. 15. On the basis of the pleadings and the grounds raised, following questions of law have been raised by this Court under Section 100 of the Code of Civil Procedure. i. Whether the Courts below were justified in holding that the suit is barred by limitation? ii. Whether under the terms of the mortgage deed if the mortgagor is not entitled to sue for redemption of mortgage before he makes a demand would not the period of limitation to sue for redemption commenced from the date of demand? iii. Whether when redemption is sought by a puisne mortgagor under the document executed within a period of 50 years from the date of commencement of the Kerala Land Reforms Act Section 4A of the Act would apply? iv. Whether possession of the transferree mortgage under the mortgage deed executed prior to the date of commencement of Kerala Land Reforms Act, 1969 alone would entitle the transferree mortgage to claim fixity of tenure under Section 4 A of the Kerala Land Reforms Act? v. Whether in case where the transferree mortgagee claims independent leasehold right, could he claim protection under section 4A of the Kerala Land Reforms Act ? vi. Whether the Courts below were justified in dismissing the suit? 16. v. Whether in case where the transferree mortgagee claims independent leasehold right, could he claim protection under section 4A of the Kerala Land Reforms Act ? vi. Whether the Courts below were justified in dismissing the suit? 16. The learned senior counsel appearing for the appellants argued that there is no evidence adduced on the side of the defendants to prove that the mortgage has been extinguished by release of the mortgage by the mortgagor. Further, the lower Court came to the conclusion that the mortgage subsists but subsequently found that none of the defendants are claiming possession under the mortgage and they are claiming independent right and as such, the plaintiffs are not entitled to get recovery of possession which will not go together. Further in the case of usufructuary mortgage, the right of the mortgagor to redeem will arise on demand as the mortgagee is in possession of the property as a trustee for the mortgagor and he is liable to account to the mortgagor for the income derived and unless the accounts are settled between the mortgagor and mortgagee, it cannot be said that the right to sue for redemption of the usufrctuary mortgage is lost by limitation. 17. He had relied on the decision reported in Panchanan Sharma v. Basudeo Prasad Jaganani and Other, 1995 Suppl. 2 SCC 574=1995 KHC 621 in support of his case. According to the learned senior counsel, these aspects were not considered by the appellate Court. Further the Court below has come to the conclusion that the defendants are claiming independent right directly from the Jenmi on the basis of the subsequent lease executed between them. But the appellate Court had not even considered that aspect. In order to claim benefit under section 4A of the Land Reforms Act, the mortgagee or lessee of the mortgagee must be in possession of the property as on the date of commencement of the Act. If that is not proved, then they are not entitled to get the benefit of deemed tenant under Section 4A of the Land Reforms Act which has not been appreciated by the Courts below. So, the decree and judgment passed by the Courts below are not sustainable. If that is not proved, then they are not entitled to get the benefit of deemed tenant under Section 4A of the Land Reforms Act which has not been appreciated by the Courts below. So, the decree and judgment passed by the Courts below are not sustainable. Further he had also argued that even according to the defendants, only one of the legal heirs of Moitheenkutty, the mortgagor, had surrendered his right and that will not affect the right of other legal heirs, who are entitled to proceed with the redemption of mortgage on the strength of the mortgage executed by their predecessor. 18. On the other hand, the learned counsel appearing for the respondents argued that it cannot be said that there is no period fixed for exercising the right of redemption. It will be seen from Ext.A5 that so that means, after the harvest and covers the period between end of Makaram and beginning of Medam of Malayalam months, the right to sue accrued from the mortgagee to redeem the mortgage and admittedly the suit was filed beyond that period. So the right will accrue either immediately after the harvest or within one year from that harvest. So the mortgages were of the year 1094 and 1097 of ME and the suit for redemption ought to have been filed within 30 years as prescribed under Article 61 (a) of the Limitation Act. That was not the case in this case. So the Courts below were perfectly justified in holding that the suit is barred by limitation. He had also argued that since they were in possession of the property as a lessee, they are entitled to get fixity of tenure and purchase certificate has already been obtained and as such, the plaintiffs are entitled to get recovery of possession. So according to them, the Courts below were perfectly justified in dismissing the suit. 19. It is an admitted fact that the plaintiffs' predecessor in interest namely Moitheenkutty was in possession of the property as a lessee under Paliyam tharavadu and he had executed Ext.A3 mortgage deed of the year 1094 ME in favour of one Kuttikrishnan Nair and as per Ext.A5, superior mortgage was created in favour of Manikka Mudali in the year 1097 ME. As per the superior mortgage, Manikka Mudali has to redeem the mortgage executed in favour of Kuttikrishnan Nair. As per the superior mortgage, Manikka Mudali has to redeem the mortgage executed in favour of Kuttikrishnan Nair. Later the said Manikka Mudali redeemed the mortgage in favour of Kuttikrishan Nair and later assigned his right over the properties in favour of the said Kuttikrishnan Nair in the year 1098 as per Exts.A6 to A8 documents. According to the plaintiffs, Kuttikrishnan Nair was in possession of item 3 and 4 of plaint schedule property and other properties were in the possession of the tenants. They also contended that Kuttikrishnan Nair got the right of the lessees in the year 1098 ME and obtained actual possession of items 1, 2 and 5 as well and subsequent assignment, defendants 1 to 5 were in possession of items 1 to 5 respectively. But according to the first defendant, item No.1 was taken by one Narayana Menon in the year 1105 ME on lease from Paliyam Tharavadu. On his death, as per the will executed by him, his rights devolved on his daughter, who assigned her rights as per Ext.B9 dated 26.6.1953 in favour one one Ammaluamma and in partition of the property of Ammaluamma, the property was set apart to her daughter's thavazhi and the first defendant and his family members got the property by virtue of a mutual assignment deed and subsequent to the partition of the family of the first defendant, the property was set apart to the share of first defendant and three others and they obtained purchase certificate in the year 1976. According to him, Moitheenkutty was enjoying the property on a license arrangement and he had surrendered the property in favour of Jenmi in 1105 ME itself. According to the second defendant, Kunjahammod, son of Moitheenkutty relinquished his entire right in the property in favour of the Jenmy, Paliyam Tharavad, in the year 1105 ME and items 1 and 2 were taken on lease by Narayana Menon, who is his father, on lease from the Jenmy directly. According to the 4th defendant, he obtained the property as per an exchange deed in the year 1965 and he along with his wife obtained 1 acre and 39 cents situated in Sy.No.897/2. According to the 4th defendant, he obtained the property as per an exchange deed in the year 1965 and he along with his wife obtained 1 acre and 39 cents situated in Sy.No.897/2. Out of the said property, 69 cents were acquired for an irrigation canal and he sold 68 cents to third parties and the remaining two cents were set apart to the property of the 6th defendant and for the way for the ingress and egress of the property set apart to the property of the 6th defendant and by subsequent exchange deed, he and his wife obtained rights over the property. According to the 5th defendant, he is in possession of 23 cents of land in Sy.No.897/2 in the outstanding possession of one Moitheenkutty in the year 1922 ME and by subsequent assignment in favour of father of the defendant, 60 cents along with 23 cents devolved on his father and on the death of his father, the rights devolved on the defendant and their family members and they obtained jenm right. According to the 6th defendant, item No.4 was taken on lease by him from one Kunnu Nair in the year 1918 after executing a lease deed. Thereafter he constructed a building and obtained jemn right. According to him, the rights of Moitheenkutty were relinquished by his son in favour of Jenmi and thereafter the successor in interest of Moitheenkutty ceased to have any right over the property. 20. The oral evidence adduced on the side of the plaintiffs and the defendants namely Pws 1 and 2 and Dws 1 to 3 are not helpful to decide the issue. There is no acceptable evidence adduced to prove that the right of mortgagor Moitheenkutty had been relinquished as claimed by them. The trial Court has come to the conclusion that even assuming that one of the legal heirs of Moitheenkutty had relinquished his right, it will not affect the right of others. There is no acceptable evidence adduced to prove that the right of mortgagor Moitheenkutty had been relinquished as claimed by them. The trial Court has come to the conclusion that even assuming that one of the legal heirs of Moitheenkutty had relinquished his right, it will not affect the right of others. The the trial Court also came to the conclusion by answering issue No.1 that the mortgage subsists but while answering the other issues, the trial Court came to the conclusion that the mortgage did not subsist as the right of the mortgagor has been surrendered and subsequently the persons claiming right over the property are claiming independent right from the jenmi especially when there was no fixity of tenure available to the mortgagor or the lessee at that time. 21. So there is inconsistent findings of trial Court on this aspect. Once the mortgage subsists and if there is no evidence to show that there was surrender of right of the mortgagor to the landlord-jenmi, subsequent documents created behind his back will not affect his right, if it is proved by him or his successors that they have not relinquished their right and their mortgage still subsists. 22. Then the question is as to whether the suit was filed in time and what is the limitation for filing the suit for redemption. Article 61 of the Limitation Act deals with the imitation for filing a suit which reads as follows: Description of suit period of limitation time from which period begins to run 61. By mortgagor (a) to redeem or recover possession of immovable property mortgaged: thirty years When the right to redeem or recover possession accrues (b) to recover possess ion of immovable Property mortgaged and afterwards transferred by the mortgagee for a valuable consideration Twelve years When the transfer becomes known to the plaintiff (c) to recover surplus collection received by the mortgagee' after the mortgage has been satisfied Three years When the mortgagor re-enters on the mortgaged property. 23. It is settled law that in the case of usufructory mortgage, the mortgage money has to be discharged out of the rents and profits obtained from the property and when the mortgage money is thus wiped off, the mortgagor has to file a suit for possession. It is then a case of self liquidating mortgage. 23. It is settled law that in the case of usufructory mortgage, the mortgage money has to be discharged out of the rents and profits obtained from the property and when the mortgage money is thus wiped off, the mortgagor has to file a suit for possession. It is then a case of self liquidating mortgage. When the mortgage deed provides a term, the right of redemption can accrue only after that period. But when the mortgage is redeemable at the will of the mortgagor, the right of redemption accrues on the date of mortgage deed itself and the redemption has to be sought within a period of 30 years staring from the date of deed. If there is a provision made in the deed for repayment, by the mortgagor, of the principal amount, the mortgage has to be redeemed within the statutory period running from the date of mortgage itself. If there is no other period mentioned in the document, then the period begins to run from the mortgage deed itself. It is mentioned in the documents that from the income, only interest is directed to be appropriated after discharging other liability on the property payabe to the jenmi and others. So there is no other period mentioned in Ext.A3 for redeeming the mortgage. There is no provision for accounting. what is required is only to appropriate the income available after discharging the liabilities as mentioned in the document towards the interest payable for the mortgage amount only. 24. Further, in Ext.A5 which is a superior mortgage executed by Moitheenkutty in favour of Manikka Mudali, there is a provision made for redeeming the mortgage as follows: xxx xxx xxx So it is clear from the recital in Ext.A5 that he had agreed to pay the mortgage amount of Rs.1,650/- after the ucharal pitta period. Uchralpitta means after harvest covered by the period between end of Makaram and beginning of Medam which is so held in K.R. Ramaswami Iyer v. Sankaran Nair by His Highness the Rajah's Court of Appeal (SAs No.3/1072) reported in the select decision of the appellate court of Cochin 1912 (Vol II 1913) at page 92). So it is clear from this that the right to sue accrues either immediately after the harvest between the end of Makaram and beginning of Medam of Malayalam months or within one year thereafter. So it is clear from this that the right to sue accrues either immediately after the harvest between the end of Makaram and beginning of Medam of Malayalam months or within one year thereafter. So when there is a time fixed under the mortgage deed itself, the right to sue accrues to the mortgagor to redeem the mortgage after the period mentioned in the document. But in this case, the plaintiffs are claiming the right from the year 1982 when demand notice was issued evidenced by Ext.A9 and thereafter which is beyond the period of limitation as provided under the Act. So the suit is barred by limitation as found by the trial Court as well as the appellate Court. 25. The dictum laid down in the decision reported in Panchanan Sarma's case (supra) is not applicable to the facts of this case as that was a case where there was no term fixed and it was also mentioned that the rent and profits has to be adjusted towards the interest and mortgage amount. So under such circumstances, there will be a right for accounting arises and and till the account is settled, the right to sue for redemption will not be lost to the mortgagor who had created a usufructory mortgage. But that was not a case here. So the dictum laid down in the decisions reported in Rukmani Ammal v. Jagadeesa Gounder, AIR 2006 SC 276 and Ram Kishan and others v. Sheo Ram and Others, AIR 2008 Pubjab and Hariyana 77 are also not applicable to the facts of this case as in those cases there was no period mentioned for redemption and there is a provision for adjustment of the profits towards interest as well as mortgage amount and till the mortgage amount is discharged and accounts settled, the right to sue for redemption of mortgage of the mortgagor does not cease. So under such circumstances, the Courts below were perfectly justified in coming to the conclusion that the suit is barred by limitation as there was time fixed in Ext.A5 mortgage deed for redemption of mortgage which right has not been exercised by the mortgagor within the time provided therein. So that finding does not call for any interference. 26. So under such circumstances, the Courts below were perfectly justified in coming to the conclusion that the suit is barred by limitation as there was time fixed in Ext.A5 mortgage deed for redemption of mortgage which right has not been exercised by the mortgagor within the time provided therein. So that finding does not call for any interference. 26. Then the other question is as to whether the first appellate Court was justified in holding that the defendants are entitled to protection under Section 4 A of the Land Reforms Act and whether the trial Court was justified in holding that the plaintiffs is not entitled to get recovery of possession and that finding is justifiable. 27. As regards the claim of deemed tenancy under section 4 A of the Land Reforms Act is concerned, they will have to come under the category and must satisfy the conditions as provided therein in order to claim the benefit under section 4 A of the said Act. Section 4 A of the Land Reforms Act reads as follows: "4A. As regards the claim of deemed tenancy under section 4 A of the Land Reforms Act is concerned, they will have to come under the category and must satisfy the conditions as provided therein in order to claim the benefit under section 4 A of the said Act. Section 4 A of the Land Reforms Act reads as follows: "4A. Certain mortgagees and lessees of mortgagees to be deemed tenants, (1) Notwithstanding anything to 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 te or cardamom, or the lessee of a mortgagee of such and 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; or (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose fro 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; or (c) the land comprised in the mortgage was waste and at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949, would have applied if that Act had been in force at the time of mortgage and (i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; and (ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement. Explanation I: For the purposes of this subsection, in computing the period of continuous possession or occupation by a lessee, the period during which the mortgagee was in possession or occupation, as the case may be, shall also be taken into account. Explanation I: For the purposes of this subsection, in computing the period of continuous possession or occupation by a lessee, the period during which the mortgagee was in possession or occupation, as the case may be, shall also be taken into account. Explanation II- In computing the period of fifty years referred to in clause (a) or the period of thirty years referred to in cause), the period during which the predecessor-in-interest or predecessor-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account. Explanation III - For the purposes of clause b) (i) "mortgagee" or "lessee" shall include a predecessor-in- interest of the mortgagee or lessee, as the case may be (ii) "building" includes 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 mortgagee or lessee for residential purpose shall be deemed to be occupation by the mortgagee or lessee, as the case may be, for such purpose. Explanation V- In calculating the extent of and held by a family for the purposes of clause (b), all the lands held individually by the members of the family or jointly by some or all of the members or such family shall be deemed to be held by the family. Explanation VI- For the purpose of sub-clause (ii) of clause (c) (i) improvements made by the mortgagee shall be deemed to be improvements made by the lessee; (ii) "mortgagee" or "lessee" shall include a predecessor-in- interest of the mortgagee or lessee, as the case may be Explanation VII- for the purposes of clause (c) (i) Improvements shall be deemed to be substantial improvements if the value thereof on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969, is not less than twenty-five per cent of the market value of the land on that date; (ii) a land shall be deemed to be waste land notwithstanding the existence of scattered trees thereon. (2) Nothing contained in sub-section (1) shall apply to a lessee if the lease was granted on or after the commencement of this Act". 28. (2) Nothing contained in sub-section (1) shall apply to a lessee if the lease was granted on or after the commencement of this Act". 28. So it is clear from the above that in order to attract the benefit under section 4A of the Land Reforms Act, it must be established by the persons claiming that they are claiming under the mortgage either as a mortgagee or lessee in possession of the property under the mortgagee in that capacity for above 50 years prior to the commencement of this Act and they must be in possession under that capacity and it was a waste land and they had made substantial improvements in the property either by construction of a building and occupying the same or otherwise. 29. In the decision reported in Govinda Pillai Ramdas v. Lakshmikutty Amma Ammukutty Amma, AIR 1993 SC 244 it has been held that Section 4 A of the Land Reforms Act applies to non agricultural land as well and the benefit under Section 4 A can be claimed in respect of non agricultural land as well. 30. In the decision reported in Padmanabha Pillai v. Bhaskaran, 1988 (1) KLT 196 it has been held that: "The expression 'mortgagee with possession of land, includes sub mortgagee with possession of land." 31. It is further held that: "From the scheme of the provision it is seen that the provision is intended to benefit the mortgagee in possession of the land and the lessee under the mortgagee. If the person in possession is the lessee of the property, it is unnecessary to make any specific provision since he can be a tenant as defined in the Act. The provision is intended to benefit the mortgagee with possession of land or tenant of the mortgagee. It has been clarified that the 'mortgagee' includes predecessor-in- interest of the mortgagee. There is nothing in Section 4 A of the Land Reforms Act indicating any legislative intent to the effect that 'mortgagee' excludes 'sub-mortgagee'. Therefore a 'sub- mortgagee is entitled to invoke the provisions of Section 4 A, if he satisfies the other conditions contemplated therein". 32. In the decision reported in Parameswaran Pillai v. Janaki Amma, 1986 KLT 1158 wherein it has been held that: "What is required under Section 4A(i)(a) is actual possession. Therefore a 'sub- mortgagee is entitled to invoke the provisions of Section 4 A, if he satisfies the other conditions contemplated therein". 32. In the decision reported in Parameswaran Pillai v. Janaki Amma, 1986 KLT 1158 wherein it has been held that: "What is required under Section 4A(i)(a) is actual possession. The mortgagee in the instant case continued to be in physical possession of the land, although the character of his possession underwent a change during the period of original mortgage. The physical possession was not lost, for, by a simultaneous transaction the mortgagee/sub-mortgagor was allowed to retain possession as a lessee under the sub- mortgage Nevertheless, the mortgagee remained a mortgagee vis-a-vis the mortgagor. The fact that he was both a sub- mortgagor and a lessee vis-a-vis the sub-mortgagee did not change his character as a mortgagee vis-a-vis the mortgagor. That being the position the benefit of the Section cannot be denied to the mortgagee or his successors at the instance of the mortgagor or his successors" 33. In the decision reported in Santhamma v. Prabhakaran, 1986 KLT 889 it has been held that: "A superior mortgagee who redeems a prior mortgage as directed and with the funds reserved by the mortgagor may not be able to say that the prior mortgagee whose interest is redeemed is his predecessor-in-interest. But in this case the superior mortgagee has not redeemed the prior mortgage as directed by the mortgagor. He has only assigned his rights to the assignee-mortgagee who was already in possession. So far as the mortgagee who was already in actual physical possession either by himself or through his predecessors is concerned there is no further question of treating anybody as predecessors-in-interest simply because he added to his credit a superior mortgage right also. By taking superior mortgage for an additional amount from the mortgagor or by taking assignment of a superior mortgage given by the mortgagor to some body else he was not divested of his possession but he goes on to have continuous possession in continuation of his earlier possession. Therefore the assignee or original mortgagee is entitled to fixity of tenure under Section 4A(1)(a)". 34. Therefore the assignee or original mortgagee is entitled to fixity of tenure under Section 4A(1)(a)". 34. In the decision reported in Raghava Nair v. Anandavally Amma, 1986 KHC 159 : 1986 KLJ 260 it has been held that : "The possession of sub mortgagees is not in possession of the mortgagee and hence the mortgage cannot claim tenancy under Section 4A. " 35. This was explained by another Division Bench in the decision reported in Padmanabha Pillai v. Bhaskaran, 1988 (1) KLT 196 and held that he is also entitled to get that right. 36. In the decision reported in Bhageerathy Pillai v. Chellamma Pillai, ILR 1993 (1) Ker.185=1992 KHC 515, it has been held that: "In order to bring in Section 4A(1) of Land Reforms Act 1963 (Kerala), possession need not be held under the same document. " 37. It is further held in the same decision that: "Expression "comprised" in Section 4A(1)(a) is of wide import and includes even cases where mortgagees are in possession of only a portion of land and not all lands or entire lands included in the original mortgage." 38. In the decision reported in Kali Karthyayani v. Pappu, 1980 KLT 541 (FB), it has been held that: "In order to satisfy Section 4A the person claiming to be a mortgagee, or lessee of a mortgagee, must have been in possession for a period of 50 years or more immediately preceding the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969 namely, 1st January 1970. In execution the mortgage money had been deposited before 1st January 1970 and from that date the mortgage came to an end and his possession therefore cannot be that of a mortgagee. Thus, it is clear that the appellant did not continue in possession till 1st January 1970 as mortgagee. If the section provides that he must continue in possession as mortgagee, he will not be entitled to any relief. The wording of the section must be satisfied before a person can be deemed to be a tenant. The section insists on possession till a specified date as a mortgagee and in the case of a lessee of a mortgagee, possession of a lessee of such a mortgagee who continued to be a mortgagee. To substitute some other date in the section would be legislating. The possession contemplated by Section 4A(1)(a) must continue till 1st January 1970. The section insists on possession till a specified date as a mortgagee and in the case of a lessee of a mortgagee, possession of a lessee of such a mortgagee who continued to be a mortgagee. To substitute some other date in the section would be legislating. The possession contemplated by Section 4A(1)(a) must continue till 1st January 1970. The further aspect is whether the respondents continued possession in any capacity, even that as a trespasser, is what is contemplated by the section. It is clear from Section 4A(1)(a) that it takes in only cases where mortgagees with possession and lessees of mortgagees with possession for the period required who are deemed to be tenants. The wording of the section also lends support only to the interpretation that such possession as is envisaged by Section 4A(1), is that of a mortgagee or of a lessee or a mortgagee. If the mortgagee had ceased on some date earlier than 1st January 1970 to be mortgagee, his possession and that of any lessee of his will not be the possession of a mortgagee or of a lessee of a mortgagee. A quondam mortgagee who continued in possession after the termination of the mortgage cannot be said to be in possession as a mortgagee. Clause (a) of sub-section (1) of Section 4A deals with the expression mortgagee or lessee holding the land. The normal meaning to be given to this expression, is a mortgagee as such or lessee of such a mortgagee must hold the land". 39. In the same decision it has been held that the contention that the case ought to be referred to the Land Tribunal under section 125(3) of the Act has to be taken at the initial stage at the trial Court and that cannot be taken for the first time in Second Appeal. 40. In the decision reported in Narayana Pillai v. Lakshmi Amma, 1969 KLT 52 , it has been held that: "If four conditions enumerated in the section are read as cumulative the Section would be consistent with its heading and if they are read as alternatives, the heading would be inconsistent with the Section and meaningless. The ambiguity, arising from the absence of a conjunctive or disjunctive word between the clauses, must then be resolved in the light of consistency with the heading of the Section. The ambiguity, arising from the absence of a conjunctive or disjunctive word between the clauses, must then be resolved in the light of consistency with the heading of the Section. It was not the legislative intention to deem a mortgagee with possession of any sort of immovable property, who satisfied any one of the four conditions mentioned in clauses (a) to (d) of Section 4A(1), as tenant as defined in the Act. Therefore the section applies only to certain mortgagees of waste lands who satisfy all the four conditions mentioned therein". 41. It is also held in the same decision that : "The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt." 42. The same view has been reiterated in the decision reported in Narayanan Asari Raghavan Asari v. Velayudhan Nair, 1968 KLT 11 . 43. In the decision reported in Parameswaran Pillai v. Narayanan Nair, 1976 KLT 341 (FB), it has been held that: "Section 44 of Kerala Land Reforms Act 1964 applied not only to agricultural land, but also to lands in corporations and municipalities." 44. In the decision reported in Mathevan Padmanabhan v. Parameshwaran Thampi 1995 Suppl. 1 SCC 479 wherein it has been held that: "The very dispute whether the appellant is a tenant and is entitled to purchase property by virtue of that capacity, hinges upon the the determination of the question whether he is a tenant. When that dispute is pending adjudication, the Tribunal was not right in directing the appellant to purchase the property. Ultimately, if the High Court on appeal, finds that the appellant is not a tenant, his entitlement to purchase the property also is lost. Under those circumstances, the appropriate course would have been to keep the application under Section 72-B pending till the dispute as to the tenancy of the applicant was resolved." 45. Further in the same decision it has been held that: "However, the High Court is clearly in grave error in divesting the jurisdiction of the Land Tribunal to determine the dispute of tenancy etc. Further in the same decision it has been held that: "However, the High Court is clearly in grave error in divesting the jurisdiction of the Land Tribunal to determine the dispute of tenancy etc. as engrafted in sub-section (1) of Section 125 of the Act and conferring jurisdiction on the civil court which it inherently lacks and any decision by the civil Court by itself is a nullity. Therefore the dispute is remitted to the Land Tribunal which would determine the matter and submit its report to the Civil Court for decision according to law". 46. In the decision reported in Kamalakshi Amma Thankamma v. Sicily Joseph, 1999 (1) KLT 373 , it has been held that: "If a suit for redemption of mortgage was pending as on 1.1.1970, the question of tenancy is to be decided by the civil Court and not by Land Tribunal." 47. In the decision reported in Ahamed v. Kuthiravattom Estate Receiver, 1996 (2) KLT 810 (SC), it has been held that: "Despite the decree for redemption which ought to have been passed by a competent court and which might have become final till the mortgage amount is deposited by the mortgagor, the relationship of mortgagor and mortgagee does not come to an end. Conversely, once the amount is deposited by the mortgagor decree-holder even during the execution proceedings the relationship between the parties as mortgagor and mortgagee ceases and thereafter till actual delivery of possession, the erstwhile, mortgagee in possession remains merely as judgment-debtor in illegal possession. From the date of deposit of the decretal amount the possession of the mortgagee-respondent would be unlawful. S.4A of the Land Reforms Act would not denude the right to re-possession of the mortgagor under S.60 of the Transfer of Property Act without assent of the President of India. S.4A of the Land Reforms Act which engrafts a non-obstante clause is of little assistance to the respondent, as he did not complete 50 years of continuous possession on the date when the Amending Act 35 of 1969 came into force. A conjoint reading of S.60, S.76(h) read with S.83 of Transfer of Property Act would amplify that on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. There does not remain any debt from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money is paid. A conjoint reading of S.60, S.76(h) read with S.83 of Transfer of Property Act would amplify that on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. There does not remain any debt from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money is paid. On the payment of mortgage money or deposit thereof in the Court by the mortgagor, the mortgage comes to an end and the right of the mortgagee to remain in possession is also coterminous. Thereafter, the mortgagee continues in unlawful possession. The first condition for applicability of S.4A is that the concerned person who seeks the benefit of S.4A for getting status of deemed tenant must be in possession of the concerned land as a mortgagee on 1.1.1970 when S.4A came into force. Almost 9 months prior to 1.1.1970 the appellants had ceased to be mortgagees in possession and were only in unlawful possession of the decretal land. Thus, the very first condition for applicability of S.4A was not fulfilled by the appellants. Once this first condition was not satisfied, S.4A went out of picture for the appellants. Even that apart the second condition was also not satisfied for applicability of S.4A in their favour. They cannot get the benefit of S.4A unless even the second condition is satisfied namely that they must be in continuous possession as mortgagees in possession for 50 years and more, immediately, preceding the commencement of S.4A meaning thereby that prior to 1.1.1970 for continuous 50 years backwards without a break they must have continued to remain in possession as mortgagees in possession. The words 50 years immediately preceding the commencement of the Amendment Act of 1969 are very significant. In order that continuous period of fifty years can start immediately preceding he coming into force of S.4 it must start from a day earlier, ie., from 31st December 1969 backwards upto a period of fifty years meaning thereby stretching back till 31st December 1919. Thus, even though the mortgagee in possession may be holding the possession of the land as mortgagee on 1.1.1970 he must further show that he had remained as a mortgagee in possession by himself through his predecessor in interest continuously at least from 31st December 1919 till 31st December 1969 without any break" 48. Thus, even though the mortgagee in possession may be holding the possession of the land as mortgagee on 1.1.1970 he must further show that he had remained as a mortgagee in possession by himself through his predecessor in interest continuously at least from 31st December 1919 till 31st December 1969 without any break" 48. From the facts of the present case, it cannot be disputed that the appellants were not in possession as mortgagees in possession for the whole period but their status as mortgagees in possession had come to an end and the relationship mortgagor and mortgagee had got snap between the parties from 14th March 1969 onwards. 49. It is clear from the above dictums that in order to claim the benefit of deemed tenancy under section 4A of the Act, the four conditions mentioned in Section 4 A have to be cumulatively satisfied by the persons claiming the same. He must be in possession of the land 50 years prior to 1.1.1970 continuously either as a mortgagee in possession or a lessee under the mortgagee and it must be a waste land in which the alleged deemed tenant had made substantial improvements and constructed a building and residing there. It is also clear from the above dictums that once a decree for redemption of mortgage is passed and the mortgagor had deposited the amount before 1.1.1970, then the person in possession cannot claim the benefit under Section 4 A of the Act. It is also clear from the dictums that once a question has arisen for consideration whether he is a deemed tenant or not, the matter ought to have been referred to the Land Tribunal under Section 125(1) of the Land Reforms Act for deciding the question, only after getting the finding on that aspect the civil Court can proceed with the case. But the position will be different if proceedings were pending before the Court as on 1.1.1970, then that question has to be decided by the civil Court itself and not by the Land Tribunal. Under such circumstances, it is not necessary to refer the matter to the Land Tribunal for that purpose and the civil Court itself can decide the issue. 50. Admittedly in this case, the case was filed in the year 1982 after 1.1.1970. Under such circumstances, it is not necessary to refer the matter to the Land Tribunal for that purpose and the civil Court itself can decide the issue. 50. Admittedly in this case, the case was filed in the year 1982 after 1.1.1970. Further the defendants are claiming that they are not claiming the right under the mortgage but they are claiming independent tenancy from the Jenmi as according to them, one of the legal heir of Moitheenkutty, the original mortgagor, had surrendered his right to the Jenmi and from them the predecessor in interest of the first defendant had obtained a lease and thereafter he is in possession as a lessee not under the mortgagee but directly under the Tharavadu. So under such circumstances, the Court below ought to have referred the matter to the Land Tribunal instead of considering the question by itself as to whether there is valid surrender and whether the defendants are entitled to get the benefit under Section 4A or they are entitled to get independent right of tenancy under the Jenmi etc are matters to be considered by the Land Tribunal which has not been done in this case. It is true that a Full bench of this Court in Kali Karthyayani's case (supra) held that the question of referring the matter to the Land Tribunal under Section 125 cannot be raised for the first time in the second appeal. It is seen from the issues raised also, the Court below had raised the question as to whether the defendants are entitled to get protection under Section 4A of the Land Reforms Act or whether they are lessees. Though issues have been raised as the second defendant has got fixity of tenure in item Nos. 1 and 2 and the 5th defendant is entitled to get fixity of tenure as issues 11 and 16 respectively, but the same has not been referred to the Land Tribunal for consideration though the trial Court was fully satisfied that arises for consideration for the purpose of decision of the case. 51. In view of the dictum laid down in the decision reported in Mathevan Padmanabhan's case (supra), if the decision is rendered by the civil Court in respect of a matter which ought to have been tried by the Tribunal vested under the statute, then the decision of the civil court is a nullity. 51. In view of the dictum laid down in the decision reported in Mathevan Padmanabhan's case (supra), if the decision is rendered by the civil Court in respect of a matter which ought to have been tried by the Tribunal vested under the statute, then the decision of the civil court is a nullity. So it is not the question of not raising the point for consideration but once an issue has been raised, then it ought to have been referred the matter to the Land Tribunal. That has not been done in this case. This aspect has not been considered by the appellate Court as well. The Court below simply proceeded on the basis that mortgage did not subsist especially when there is no evidence to show that the mortgagor had surrendered his right. They have not produced any document to show that the mortgagor had surrendered his right as well. Further, the Court below had relied on the purchase certificate said to have been obtained but those purchase certificates were obtained without either Moideenkutty or his legal heirs on record. Further the appellants were not parties to those proceedings as well. Though Ext.B6 purchase certificate was produced, the plaintiffs are not a party to the proceedings and according to them, mortgage still subsists. According to them, there is no surrender of mortgage right by their predecessor. So under such circumstances, the finding arrived at by the Court below that the defendants a re entitled to get fixity of tenure without referring the matter to the Land Tribunal either as a direct tenant or deemed tenant under Section 4A is unsustainable in law and the same has to be set aside. But however in view of the finding on the question that the suit is barred by limitation, the case need not be remitted to the Court below for the purpose of making a reference to the Land Tribunal to get a finding on that aspect. So in view of the discussions made above, since the suit is barred by limitation, the second appeal fails and the same is hereby dismissed. Considering the circumstances of the case, parties are directed to bear their respective costs in the second appeal.