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Subramonia Iyer Vs. Pachi Amma Lekshmikutty Amma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 532 of 1973
Judge
Reported inAIR1977Ker5
ActsKeralal Land Reforms Act, 1954 - Sections 4A; Transfer of Property Act, 1882 - Sections 58 and 60
AppellantSubramonia Iyer
RespondentPachi Amma Lekshmikutty Amma
Appellant Advocate K.S. Rajamony,; A. Shahul Hameed and; Siby Mathew, A
Respondent Advocate P. Sukumaran Nair and; A.K. Chinnan, Advs.
DispositionAppeal dismissed
Cases ReferredRaghavan Vydian v. Parvathi Amma
Excerpt:
.....act, 1882 - suit for partition and redemption - section 4a applicable to non-agricultural land - appellant not entitled to benefit as condition of continuous possession for 50 years by mortgagee not satisfied - held, decree for partition and redemption confirmed. - - the property is 9 cents of land with a residential building, a shop building and a well and is situated in a street called 'brahmin street',attingal ananthakrishna iyer mortgaged the property under ext. harihara iyer assigned his mortgage rights as well as his share in the equity of redemption to one parvathy ammal, wife of the 2nd defendant and mother of 1st defendant. therefore, though the appellant succeeds in his contention that section 4-a will apply to a non-agricultural land also, on the facts of this case he..........building and a well and is situated in a street called 'brahmin street', attingal ananthakrishna iyer mortgaged the property under ext. p-1 dated 8-12-1092 to one pichu iyer. subsequently the rights of pichu iyer were taken assignment of by one harihara iyer, son of the mortgagor ananthakrishna iyer, ananthakrishna iyer executed a purakadom, ext. p-2 dated 2-5-1106 also to this harihara iyer. subsequently ananthakrishna iyer. died and his rights over the equity of redemption devolved on his four sons, namely, his mortgagee harihara iyer, one siva-ramakrishna iyer, padmanabha iyer and ananthanarayana iyer. harihara iyer assigned his mortgage rights as well as his share in the equity of redemption to one parvathy ammal, wife of the 2nd defendant and mother of 1st defendant. the rights of.....
Judgment:

G. Viswanatha Iyer, J.

1. This second appeal is by the 1st defendant in a suit for partition and redemption. The property belonged to one Ananthakrishna Iyer. The property is 9 cents of land with a residential building, a shop building and a well and is situated in a street called 'Brahmin Street', Attingal Ananthakrishna Iyer mortgaged the property under Ext. P-1 dated 8-12-1092 to one Pichu Iyer. Subsequently the rights of Pichu Iyer were taken assignment of by one Harihara Iyer, son of the mortgagor Ananthakrishna Iyer, Ananthakrishna Iyer executed a purakadom, Ext. P-2 dated 2-5-1106 also to this Harihara Iyer. Subsequently Ananthakrishna Iyer. died and his rights over the equity of redemption devolved on his four sons, namely, his mortgagee Harihara Iyer, one Siva-ramakrishna Iyer, Padmanabha Iyer and Ananthanarayana Iyer. Harihara Iyer assigned his mortgage rights as well as his share in the equity of redemption to one Parvathy Ammal, wife of the 2nd defendant and mother of 1st defendant. The rights of the three other sons of Ananthakrishna Iyer were sold in court auction and the auction purchaser sold his rights to the plaintiff under Ext. P-5 dated 27-3-1967. The present suit is filed by the plaintiff on the basis of this Ext. P-5 to partition and recover possession of three-fourth of the property on redemption of Exts. P-l and P-2 mortgage and purakadom. The defendants, though had initially disputed the title of the plaintiff to redeem, ultimately relied on the provisions of Section 4-A introduced by Act 35 of 1969 to Act 1 of 1964 to resist the claim for recovery of possession of the property. The trial Court found the plaintiff has got title to redeem three-fourth of the property and also found that the defendants, namely defendants 1 and 2, are not entitled to the benefits of Section 4-A of Act 1 of 1964 for the reason that the property mortgaged is a building with appurtenant land situated in the heart of a street and does not come within the scope of 'agricultural land' to get the benefit of Section 4-A. In other words, the trial court found that Section 4-A of the Land Reforms Act can apply only to agricultural lands and since the land in question does not come within that category, the benefit of Section 4-A is not available to the person in possession. In that view the decree for partition and redemption was granted and the plaintiff was directed to apply for passing a final decree and the contesting defendants were allowed to take out a commission to assess the value of improvements/ if any, or the portion of the property sought to be recovered by the plaintiff.

2. Against this decision defendants 1 and 2 filed an appeal to Sub-Court, Attingal, and pending that appeal the 2nd defendant, 2nd appellant, died and the 1st defendant was recorded as his legal representative. In the lower appellate court two contentions were urged against the decision of the trial court Firstly, it was contended that the benefit of Section 4-A is available in respect of any land, whether agricultural or non-agricultural, and secondly the suit for redemption is barred by limitation. Both these contentions were repelled by the lower appellate court. The lower appellate court agreed with the trial court in coming to the conclusion that the Act applies only to agricultural lands and since the plaint property does not come within that category Section 4-A of Act 1 of 1964 will not apply for that land. The plea of limitation for redemption was also found against, rightly so because Ext. P-l mortgage was followed by Ext. P-2 purakadom in the year 1106 and the mortgagee acknowledging the mortgage assigned his right only in the year 1119 within the period of limitation to redeem a mortgage. In this view the trial court's decree was confirmed and this second appeal is filed by the defendant challenging the decrees passed by the lower courts.

3. In view of the decision of the Full Bench in 1976 Ker LT 341 (FB) it is not open to the respondent-plaintiff to contend that Section 4-A does not apply to the plaint property, a non-agricultural land. If this was the only point to be looked into to apply Section 4-A, the appellant is entitled to succeed. But, the respondent's counsel brought to my notice the averments in the plaint and also the statements in Ext. P-3 and urged that the appellant is not entitled to the benefit of Section 4-A and resist redemption and recovery of possession. In the plaint itself it was mentioned that Harihara Iyer who got an assignment of the mortgage and subsequently got Ext. P-2 purakadom executed a sub-mortgage (cheettotty) to one. Sreeenivasan Poti and put the sub-mortgagee in possession of the property and later assigned his right under the mortgage and purakadom to Parvathy Ammal under Ext. P-3. A reading of Ext. P-3 also shows that Harihara Iyer executed a sub-mortgage in the year 1118 and put Sreenivasan Poti in possession. The as-signee under Ext. P-3 was directed to redeem Sreenivasan Poti and get possession of the property. It is not disputed that Parvathy Ammal, the assignee under Ext. P-3, redeemed the sub-mortgage and came into possession. That can only be after 1119, the date of Ext. P-3. Going by that date Parvathy Ammal, and subsequently defendants 1 and 2, were not in possession for a continuous period of 50 years which is one of the conditions necessary to claim the benefit of Section 4-A (1) of the Act. In this connection it is necessary to read Section 4-A (1) (a) and Explanation II to Section 4-A (1):

'4-A (1) (a). 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, tea or cardamom or the lessee of a mortgagee of such land shall be deemed to be a tenant if 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;'

XX XX XX

'Explanation II.-- In computing the period of fifty years referred to in Clause (a) or the period of thirty years referred to in Clause (c), the period during which the predecessor-in-interest or predeces-sors-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account.'

The mortgagee holding the land comprised in the mortgage for a continuous period of not less than 50 years immediately preceding 1-1-1970 is a 'deemed tenant' under this provision. Even if the mortgagee in possession was not holding the land for a continuous period of 50 years by himself or herself, the period during which the predecessor-in-interest of the mortgagee was holding the property has been directed to be taken into account in computing the period of 50 years by Explanation II to that section. No doubt, Harihara Iyer is a predecessor-in-interest of Parvathy Ammal. But, Harihara Iyer was not in possession on the date he assigned his rights under Ext P-3 to Parvathy Ammal. He had given possession of the property to a sub-mortgagee, Sreenivasan Poti, in the year 1118 and Parvathy Ammal came into possession only on redeeming the latter. Therefore, there was no continuity of possession for the entire period of 50 years for the purpose of satisfying one of the conditions stipulated in Section 4-A (1) (a) of the Act. The appellants' counsel contended that the expression 'predecessor-in-interest' in Explanation II should not be limited to a person whose interest in the property prior to that of the person in possession was identical with the person in possession. 'Predecessor-in-interest really means predecessor-in-title. A sub-mortgagee is not a predecessor-in-interest or title of the mortgagee or the assignee of the mortgagee. Sub-mortgagee's possession is not possession of the mortgagee, because a sub-mortgagee in his own right is entitled to be in possession until his mortgage money is paid. He is not holding the property on behalf of the mortgagor. He is not the agent of the mortgagor nor can the mortgagor say that the sub-mortgagee's possession is his possession. By redemption of the sub-mortgage that rigbt is extinguished and the mortgagee or the assignee who redeems does not become the successor-in-interest of the sub-mortgagee. If the idea intended to be conveyed by the expression 'predecessor-in-interest' was only to denote the person in previous possession irrespective of his interest in it the Legislature would have stated so and in that case. Explanation I to that sub-section would have been unnecessary. So the expression 'predecessor-in-interest' in Explanation II was intended to mean only a person whose interest was identical with that of the successor. I had occas on to consider the case of a mortgagee leasing the property and putting the lessee in possession for a certain period and then on taking release of that leasehold right within the period of 50 years preceding 1-1-1970 claiming the benefit of Section 4-A. That decision is Emmunni Pa-nicker v. Krishna Panicker (1974 Ker LT 850). The principle stated in that decision applies to the facts here also. Again, in Raghavan Vydian v. Parvathi Amma (1973 Ker LT 1024) Bhaskaran J, had occasion to consider whether a prior mortgagee's possession can be taken to be the possession of the predecessor-in-interest so far as a subsequent mortgagee directed to redeem the prior mortgage is concerned. His Lordship has referred to Ramanatha Iyer's Law Lexicon and Stroud's Judicial Dictionary and stated that to claim the benefit arising out of the continuity of possession gathered by a person characterised to be the 'prede-cessor-in-interest' there must be identity of interest between such person and the person claiming such benefit. I respectfully agree with that conclusion and hold that in this case it is not possible to hold that the sub-mortgagee is a predecessor-in-interest of the mortgagee within the meaning of Explanation II to Section 4-A (1) of the Act. Therefore, though the appellant succeeds in his contention that Section 4-A will apply to a non-agricultural land also, on the facts of this case he is not entitled to the benefit of Section 4-A because the main condition to be satisfied to get the benefit of that section, namely continuous possession for a period of 50 years by the mortgagee is not satisfied in this case.

4. In the result, the decrees for partition and redemption passed by the lower courts are confirmed and the second appeal is dismissed. But, in the circumstances I make no order as to costs.


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