1. The 2nd defendant has preferred this second appeal against the decree passed by the District Court, Trivandrum. dismissing the appeal from the preliminary decree passed by the Munsif allowing a suit for redemption of a mortgage, Ext. P1, of the year 1097 M. E. executed in favour of the predecessor-in-interest of defendants 1 to 5,
2. The plaint property was kandukrishi thanathu land. The Special Tahsildar, Neyyattinkara, by Ext D1 order passed during the pendency of the suit, granted registry of the property to the defendants 1 to 5. The 2nd defendant, among other things, contended that the plaintiffs have lost their right to redeem as the registry did not enure to the benefit of the plaintiffs. This contention was overruled by the courts below. Hence this second appeal.
3. When the second appeal came up for hearing before a learned single Judge, he found difficulty in reconciling the decision of the Division Bench in Neelakanta Pillai v. Madhavan Nair 1965 Ker L. T. 537 and the two decisions bv the learned single Judges in Kumaram-kari Devaswom v. Chacko 1960 Ker L. T. 800 = AIR 1961 Ker 124 and Chacko v. Janaki Kunjamma (1961) 2 Ker L. B. 407. So he directed that the papers may be placed before the learned Chief Justice for the case being placed before a Full Bench; and the learned Chief Justice has ordered the appeal for being posted before a Full Bench, and that is how the appeal has come before us.
4. The predecessor-in-interest ofthe plaintiffs who executed the mortgage Ext. P1 was a lessee of the plaintproperty. Kandukrishi lands wereoriginally the home farm lands of thesovereign. They were transferred tothe State and the State dealt with thelands as government lands under theLand Assignment Act The relevantrule under which defendants 1 to 5obtained the registry of the property isRule 6 (2) of the Rules for Assignmenton Registry of Kandukrishy Lands,dated 11-10-1958, framed under the LandAssignment Act. Sub-rule (2) of Rule 6reads:
'Where a lessee has transferred the possession of thanathu land to another person whether by sale, sub-lease, otti, mortgage or any other transaction under a registered document executed before 1st October, 1957, the land shall be registered in the name of such transferee .......'
It was on the basis of this sub-rule that the 2nd defendant contended that the registry enured to the benefit of the mortgagee and that the suit for redemption was incompetent.
5. As the mortgage was and could only be a mortgage on the leasehold interest of the mortgagor, the suit was really one for redemption and for recovery of the possessory interest of the lessee in the property. The interest of a lessee of kandukrishi thanathu land has been characterised as a 'valuable interest' in 1965 Ker L. t. 537 following the decision in Subramonian Kesavan Empran v. Krishnan Govindan Plappalli (1932) 22 Trav L. J. 968 at p. 976 where it was observed that 'it was impossible to hold that the tenant held the lands as a more tenant-at-will with no powers of disposal at all over them'. We do not think that in a suit for redemption of a mortgage on such an interest, the question whether the registry of the land in favour of the mortgages would enure to his benefit or to the benefit of the mortgagor would have any relevance, as the mortgage that is sought to be redeemed is the mortgage of the leasehold interest. If by the registry the leasehold interest of the mortgagor was determined, and so the mortgagor has ceased to have any interest in the equity of redemption, namely the leasehold interest, the question might be relevant. But if by the registry the leasehold interest of the mortgagor was not determined, the lease will continue to subsist and the mortgagor being interested in the equity of redemption, namely the leasehold interest, would be entitled to redeem the mortgage on that interest and recover possession. The fact that the mortgagee has obtained the registry, and the fact that even if the registry would enure to his benefit, would not entitle him to resist redemption.
In other words, even if it is assumed that the mortgagee became the owner of the property by the registry, the mortgagor would be entitled to redeem the mortgage on the leasehold interest, as the leasehold interest in the property has not been determined. From this point of view the question whether the registry to the 2nd defendant and others of the land would enure to the benefit of the plaintiff's is really foreign to the scope of the suit. The 2nd defendant cannot deny the leasehold interest of the predecessor-in-interest of the plaintiffs at the time of the mortgage. In other words, the 2nd defendant would be estopped from contending that the mortgagor -- the predecessor-in-interest of the plaintiffs--had no leasehold interest in the property. If that be so, the 2nd defendant must show that the leasehold interest has been determined either by the order of registry or by a notice to quit by the persons in whose favour the registry was granted in order to resist the suit for redemption.
The registry did not determine the lease. There was no case for the 2nd defendant that the leasehold interest of the mortgagor has been determined in accordance with law by the persons in whose favour the registry was granted, and therefore, the plaintiffs have lost their equity of redemption which alone would disable them from filing the suit, In this view we do not think it necessary to consider the question whether the policy of the government in enacting R. 6 (2) was to confer the benefit of the registry in all cases on the mortgagee in possession to the exclusion of the mortgagor, and thus exclude the operation of Section 90 of the Indian Trusts Act; or the further question whether the rule-making authority was competent in law so to exclude the operation of the Section, occurring, as it does in an enactment like the Indian Trusts Act. The question whether the registry will enure to the benefit of the mortgagee or not will have to be decided in a fresh suit.
6. The appellant, however, contended that Ext. P1 evidences an otti-kuzhikanam within the definition of the term in Section 2 (39-A) of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969, and therefore he is a tenant within the meaning of Section 2 (57), Section 2 (39-A) provides:
' '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;'
We do not think that there was any transfer of the land under Ext. P1 to the appellant for enjoyment. The appellant was at best only a transferee of an interest of the leasehold right in the property. The definition of lease in the Transfer of Property Act would show that a lease is only a transfer for enjoyment. We think that it is only when there is a transfer of the land as distinguished from a transfer by way of mortgage of a leasehold interest in the land that the definition would be attracted. We therefore overrule the contention.
7. The appellant then contended that he is entitled to the benefit of Section 4A of Act 1 of 1964 as amended by Act 35 of 1969. As the contention raises questions of fact, we do not think we can go into it in this appeal. This will not in any way preclude the appellant from raising the question in the proceedings for passing the final decree.
We see no grounds to interfere with the decrees of the courts below. We, therefore, dismiss the appeal but in the circumstances, without any order as to costs.