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2025 DIGILAW 2825 (KER)

G. Seetha v. Anandan. S, S/O. Thevan

2025-11-19

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. 1. The execution second appeal arises out of concurrent findings rendered by the courts below in an application filed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC). 2. The brief facts necessary for the disposal of the appeal are as follows: 2.1. The appellant is the claim petitioner under Order XXI Rule 97 of the CPC. The property originally belonged to one Velu as per a ‘Venpatta Adharam’ No.1004/1955 of Mararikulam S.R.O, which was exchanged by him in favour of one G.K.Babu on 02.01.1990 and G.K.Babu thereafter obtained a pattayam from the Cherthala Land Tribunal as Patta No.37/1990. Since Neelakandan Velu was a cultivating tenant, all the rights in the property vested upon him. The respondents filed a suit for redemption of mortgage claiming that the property originally belonged to one Poovan Kuttan and he gave the property on mortgage by a registered document on 21.06.1952 to one Parameswara Kurup and the document is styled as Panayadharam. During the pendency of the mortgage, Poovan Kuttan had created a gift in favour of his nephews. Based on the gift deed, O.S.No.155/1982 was preferred, which was decreed and a redemption of mortgage was granted, which was challenged by Parameswara Kurup before the First Appellate Court and the same reached before this Court and the decree for redemption of mortgage was confirmed. Incidentally, Parameswara Kurup instituted a small causes suit against Poovan Kuttan way back in the year 1955 and it is stated that Parameswara Kurup had obtained a decree based on which the property was sold, and he purchased the property. Later, Parameswara Kurup assigned the mortgage to Velu, who in turn, exchanged the property with G.K.Babu, from whom the appellant is stated to have purchased the property. 2.2. The decree holder resisted the contention by contending that the claim petitioner has no right and possession over the property. Neelakandan Velu had no title over the property and he was never in possession and hence, he had no right to execute any kind of document in respect of the property. The proceedings before the Land Tribunal was taken out during the pendency of O.S.No.155/1982 and therefore, is not binding. In the application before the Land Tribunal the Jenmi was shown as Parameswara Kurup and therefore, the same was collusive in nature. The proceedings before the Land Tribunal was taken out during the pendency of O.S.No.155/1982 and therefore, is not binding. In the application before the Land Tribunal the Jenmi was shown as Parameswara Kurup and therefore, the same was collusive in nature. On behalf of the appellant/claim petitioner, Ext.A1 to A7 documents were marked. No documentary evidence on the side of the counter petitioners. Ext.C1 is the report of the Advocate Commissioner and Ext.C1(a) is the plan. No oral evidence was adduced on either side. The Executive Court framed the following issues for consideration: 1. Whether the claim petitioner has any right and title over the decree schedule property? 2. Whether deed No.448/95 is hit by the doctrine of lis – pendens? 3. Whether the decree passed in O.S.No.155/1982 is vitiated by fraud? 4. Whether the decree in O.S.No.155/82 is a void decree? 5. Whether the decree in O.S.No.155/82 is binding on the claim petitioner herein? 6. Reliefs and costs? 2.3. On appreciation of the documentary evidence produced on behalf of the appellant, the Executing Court found that, since the purchase certificate was issued after the filing of the suit and the decree, any transfer effected after filing of the suit is hit by principles of lis pendens. It was further found that since the decree of redemption was affirmed by this Court, it is futile for the claim petitioner to resist the execution of the decree and accordingly, dismissed the claim petition. Aggrieved, the claim petitioner preferred A.S.No.2/2019 and the First Appellate Court by judgment dated 26.07.2024, dismissed the appeal and hence, the present Execution Second Appeal. 3. Heard, Sri.Roy Chacko - the learned counsel appearing for the appellant and Sri.T.Jayakrishnan - the learned counsel appearing for the respondents. 4. On 16.08.2024, this Court framed the following substantial questions of law: i. Whether the appellant is a cultivating tenant who is entitled to get fixity of tenure since he is claiming right under Ext.A4 document which was executed much prior to the institution of the suit? ii. Whether the appellant is a necessary party to the suit ? 5. Sri.Roy Chacko - the learned counsel appearing for the appellant, contended that the appellant is entitled for the benefits of Section 7B of the Kerala Land Reforms Act, 1963 and therefore, the First Appellate Court was not justified in dismissing the appeal. ii. Whether the appellant is a necessary party to the suit ? 5. Sri.Roy Chacko - the learned counsel appearing for the appellant, contended that the appellant is entitled for the benefits of Section 7B of the Kerala Land Reforms Act, 1963 and therefore, the First Appellate Court was not justified in dismissing the appeal. In fact, it is the specific case that the contention having been raised specifically before the courts below, both the courts below did not consider the question in its proper perspective. According to him, since the purchase certificate has been issued, a presumption under Section 72K of the Kerala Land Reforms Act, 1963 , is required to be applied in the present case. Since the purchase certificate has been issued after a proper enquiry with the Jenmi Parameswara Kurup in the party array, the courts below went wrong in discarding the purchase certificate. 6. Per contra, Sri.T.Jayakrishnan - the learned counsel appearing for the decree holder, contended that a person claiming the benefit under Section 7B of the Kerala Land Reforms Act will have to necessarily prove the bona fides and the object under Section 7B is to save documents which are not leases, but bear some resemblance to that of a lease. He would contend that the purchase certificate issued during the pendency of a suit for redemption of mortgage cannot by itself transfer the entire right, title and interest over the property. Accepting the argument of the appellant would necessarily mean that the decree for redemption of mortgage which was affirmed by this Court would remain inexecutable. 7. In reply, the learned counsel for the appellant would contend that the question whether the appellant is entitled to have fixity of tenure or not, is a matter which ought to have been decided by the First Appellate Court and therefore, would request this Court to remand the matter back to the First Appellate Court for a fresh consideration on the issues raised before it. 8. I have considered the rival submissions raised across the Bar, perused the orders passed by the Execution Court and the judgment of the First Appellate Court and also the records of the case. 9. In the light of the substantial questions of law framed by this Court, necessarily this Court must address the validity of the purchase certificate issued by the Land Tribunal. 9. In the light of the substantial questions of law framed by this Court, necessarily this Court must address the validity of the purchase certificate issued by the Land Tribunal. It is indisputable that, the original mortgagee had assigned the property in favour of one Velu, who in turn had exchanged it with one G.K.Babu. To examine the issue as to whether the appellant is entitled for any fixity of tenure, it is necessary for this court to test the validity of the assignment in favour of Velu and exchange deed executed by him in favour of G.K. Babu. 10. It is indisputable that the mortgagee, Parameswara Kurup had assigned the mortgage rights in favour of Velu only for a period of three years. Velu in turn exchanged the property with one G.K.Babu. That be so, what is the status of Velu, the subsequent assignee qua the assignor and the original mortgagee ? 11. It is indisputable that the assignment in favour of Velu was only for 3 years. When the assignment of mortgage is only for a limited period of three years, Velu will not get absolute right to hold the mortgage. Once the term of assignment expires, necessarily the mortgage rights reverts back to Parameswara Kurup, the original mortgagee. It is difficult to envisage a situation and hold that an assignee from a mortgagee will be substituted to the original position of the mortgagee in a given case where his assignment is for a limited period. That leaves us to a situation where the assignee in the present case ‘Velu” lost all his rights under the assignment of mortgage on expiry of three years and thus the mortgage reverts back to Parameswara Kurup. 12. It is also not clear how Velu continued to be in possession of the mortgaged property even after the expiry of the period mentioned in the assignment. At any rate, both the mortgagee and his assignee had only limited interest in the property and once the decree for redemption was granted, then the subsisting right over the property also pales into insignificance. To complicate the issue further, Velu goes on to execute an exchange deed with G. K. Babu after the filing of OS No 155 of 1982. To complicate the issue further, Velu goes on to execute an exchange deed with G. K. Babu after the filing of OS No 155 of 1982. Once it is concluded that, on expiry of the period of 3 years mentioned in the assignment deed in favour of Velu, the mortgage rights revert back to mortgagee, therefore Velu had no authority to execute an exchange deed with G.K.Babu and hence, G.K.Babu derives no right title and interest over the property. Therefore the fact that G.K.Babu obtained purchase certificate is of no consequence since he had no right title and interest over the property. It is in this context that this Court is required to consider the validity of the purchase certificate and the incidental right of the appellant to seek fixity of tenure in the light of the subsequent sale by G.K.Babu in her favour. 13. The appellant, at any rate, cannot dispute the subsequent gift executed by the mortgager, namely, Poovan Kuttan because, what is transferred by him is to his nephew is equity of redemption which was rightly upheld by the Trial Court by decreeing O.S.No.155/1982, which was confirmed by this Court in the Second Appeal. Therefore, the right, title and interest over the property in favour of the decree holder cannot be disputed by the appellant. The only plea that remains to be considered is whether appellant is entitled to seek protection of Section 7B of the Kerala Land Reforms Act, 1963 and thereby claim fixity of tenure. 14. Section 7B of the Kerala Land Reforms Act, 1963 , reads as under: 7B. Certain persons occupying lands under leases granted by incompetent persons 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, any person is occupation of the land of another at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, on the basis of a registered deed purporting to be a lease deed, shall be deemed to be a tenant if he or his predecessor-in- interest was in occupation of such land on the 11 th day of April, 1957, on the basis of that deed, notwithstanding the fact that the lease was granted by a person who had no right over the land or who was not competent to lease the land. (2) 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, any person who on the 11 th day of April, 1957, was in occupation of the land of another and continued to be in occupation of such land till the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be a tenant if the Court has delivered a judgment or passed an order before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette that the occupation by such person was on the basis of an oral permission or an unregistered deed purporting to be a lease deed granted by a person who had no right over the land or who was not competent to lease the land. (3) Notwithstanding anything to the contrary contained in this Act or in any other law or in any contract, custom or usage or in any judgment, decree or order of any Court, any person in occupation of land on the basis of an oral permission or a deed purporting to be lease deed, granted by a person governed by the Madras Aliasanthana Act, 1949 shall be deemed to be a tenant, if he or his predecessor-in- interest was in occupation of such land at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.] 15. To appreciate the said contention, one must necessarily see as to whether an assignee of the mortgage could elevate his status and claim that, from that of a mortgagee, he is a cultivating tenant in respect of the property. It is nobody’s case that either the mortgagee or the assignee of the mortgagee was in possession of the property and were cultivating tenants in order to claim the benefit of Section 4A of the Kerala Land Reforms Act 1963. Only if the conditions of Section 4A are satisfied then, a mortgagee or a lessee under the mortgagee will be a deemed tenant. However, when the assignment itself was for only three years, this court fails to comprehend as to how the assignor could claim a better title than the mortgagee . Only if the conditions of Section 4A are satisfied then, a mortgagee or a lessee under the mortgagee will be a deemed tenant. However, when the assignment itself was for only three years, this court fails to comprehend as to how the assignor could claim a better title than the mortgagee . Still further, even assuming that the assignee of the mortgage was entitled to execute the exchange deed with G.K.Babu, inasmuch as the exchange was admittedly after the institution of the suit of redemption, the same is hit by of doctrine of lis pendens under Section 52 of Transfer of Property Act, 1882 . If that be so, G.K.Babu did not derive any better right, title and interest over the property than the decree holders in the present case. 16. Coming to the purchase certificate issued by the Land Tribunal, the courts below have concurrently found that the said purchase certificate has no efficacy of law. Though, a conclusiveness is attached to the purchase certificate under Section 72K of the Kerala Land Reforms Act, 1963 , the conclusiveness is available only to a validly issued purchase certificate. Once it is held that the exchange deed itself is void, then no further deliberation on the validity of the purchase certificate is required. 17. As regards the plea that the appellant is entitled to get the benefit of Section 7B of the Kerala Land Reforms Act 1963, it must be noticed that the Section is intended to protect the documents which are not leases but bear some semblance of leasehold rights. 18. In Travancore Devaswom Board v. Krishnan, 1980 KLT 787 , this Court held that the purport of Section 7B of the Kerala Land Reforms Act, 1963 , is to protect the documents which are not leases, but bear some resemblance of a lease. On a construction of the document, if it is found that it has got some semblance of a lease, then the same is protected. But then, the larger question would be whether the said presumption is available to the assignment of the mortgage granted in favour of Velu by Parameswara Kurup. Going by the contents of Ext.A4, it is not possible for this Court to hold that it has the character of a lease. But then, the larger question would be whether the said presumption is available to the assignment of the mortgage granted in favour of Velu by Parameswara Kurup. Going by the contents of Ext.A4, it is not possible for this Court to hold that it has the character of a lease. At any rate, when this property was exchanged by Velu to G.K.Babu, it loses the character of a lease and thereby translates into an absolute assignment which is not protected under Section 7B of the Kerala Land Reforms Act, 1963 . Admittedly, in the present case, the document created by Velu in favour of G.K.Babu has no legal efficacy and is void abintio. That be so, no question of application of Section 7 B arises for consideration. 19. Viewed in the above perspective, this Court finds it difficult to to accept the argument of the appellant that, she is entitled to the benefit of the fixity of tenure and therefore, the courts below were correct in holding that no right flows into the hands of the appellant, who is holding the purchase certificate. 20. Resultantly, the first substantial question of law framed by this Court is answered against the appellant and it is held that the appellant is not entitled for the fixity of tenure under Ext.A4 document. 21. As regards the second substantial question of law framed by this court, as a necessary corollary of the findings on the first substantial question of law, it is inevitable for this court to conclude that the appellant was not a necessary party to the suit, since the transfer in favour of the appellant was after the institution of O.S. No.155/1982. Moreover, since the assignee of the mortgage namely Velu had no authority to execute the exchange deed with G.K.Babu, no rights flow into the hands of the appellant, the subsequent transferee from Babu. Consequently, this Court finds that the appeal lacks merit and accordingly, the same is dismissed. No costs.