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Avutha Ammal Selvi Ammal Vs. Joseph Gomez and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberS.A. No. 152 of 1973
Judge
Reported inAIR1976Ker131
ActsKerala Land Reforms Act, 1964 - Sections 1, 4A and 4A(1); Kerala Land Reforms (Amendment) Act, 1969
AppellantAvutha Ammal Selvi Ammal
RespondentJoseph Gomez and anr.
Appellant Advocate V. Vyasan Poti,; M.R. Parameswaran and; C.S. Vijayaleksh
Respondent Advocate M. Rajasekharan Nair,; C. Balachandran and; B. Raghunath
Excerpt:
.....has to be for the redemption of the whole mortgage and in that case it may be that the mortgagee has been substantially in possession of the best part of the mortgage holding......cannot claim the benefit of section 4-a. whether the mortgagee has been in possession of the mortgage holding is inextricably linked up with the question whether the suit for redeeming a part of the mortgage holding is maintainable. if it is, we will have to treat the mortgage holding as the plaint property out of which the first defendant had only possession of the building and one coconut tree. if, on the other hand, the suit for redeeming a part is not maintainable and the suit has to be for the redemption of the whole mortgage and in that case it may be that the mortgagee has been substantially in possession of the best part of the mortgage holding. the applicability of section 4-a will have therefore to be considered under two entirely different circumstances. the first.....
Judgment:

Govindan Nair, C.J.

1. In this appeal by the plaintiff from the concurrent decrees of the Courts below dismissing a suit for redemption of the plaint property the main contention raised is that Section 4-A of the Kerala Land Reforms Act, 1963, was wrongly applied by the Courts below in dismissing the suit. The property scheduled to the plaint, only 13 cents in extent and the building thereon, formed one item of a mortgage dated 6-8-1048 which comprised several items totalling nearly 2 acres in extent. The suit however was for redeeming only one item of the properties included in the mortgage. This item had been sub-mortgaged on 13-11-1963 (document not produced) by the first respondent, who became entitled to the mortgage rights, in favour of the second defendant in the suit. In this sub-mortgage it was stated that the mortgagor would retain the building in the property as well as one coconut tree and the rest will be enjoyed by the second defendant sub-mortgagee.

2. Two contentions have been raised by the appellant before us. The first was that the property comprised in the mortgage as well as that scheduled to the plaint was situate inside the city corporation limits of Trivandrum and therefore the Kerala Land Reforms Act, 1963 would not apply to such land, as the intention of the legislature in enacting the above Act as discernible from the provisions thereof was that the Act must apply to agricultural land. Secondly it was contended that, in any view of the matter, Section 4-A of the above Act has not been satisfied.

3. Regarding the first point we have already held in S. A. Nos. 1021 and 1022 of 1973 which were disposed of by a recent judgment that it is impossible to read the Act on its terms as applicable only to agricultural lands. If the Act comprised other lands as well, i.e. lands other than agricultural lands, whether it would have the protection of Article 31A and whether the Act could fairly be said to be for the purpose of agrarian reforms, we held, did not arise in view of the inclusion of the Act in the Ninth Schedule to the Constitution. In view of the decision in S. A. Nos. 1021 and 1022 of 1973 we negative the first contention raised by the appellant.

4. Now passing on to the second contention we shall first read Section 4-A (1) (a) of the Act which alone is necessary for the purpose of meeting the argument that has been raised.

'4-A. 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, tea or cardamom, or the lessee or a mortgagee of such land 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.' A perusal of the section shows that the mortgagee must be holding the land comprised in the mortgage for a continuous period of not less than 50 years and that immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. That Act came into force on 1-1-1970. It is therefore necessary that there should be a continuous period of 50 years immediately preceding 1-1-1970 during which the mortgagee held the property. Counsel submitted that the first defendant, even if he is taken to have been in possession from 6-8-1048 (taking the possession of his predecessors as his possession as provided in Explanation II to Section 4-A) since he ceased to be in possession of the plaint schedule property from 13-11-1963, long before the Kerala Land Reforms (Amendment) Act, 1969 came into force on 1-1-1970, was not entitled to the benefit of the section. The second defendant, sub-mortgagee admittedly cannot claim the benefit of Section 4-A. Whether the mortgagee has been in possession of the mortgage holding is inextricably linked up with the question whether the suit for redeeming a part of the mortgage holding is maintainable. If it is, we will have to treat the mortgage holding as the plaint property out of which the first defendant had only possession of the building and one coconut tree. If, on the other hand, the suit for redeeming a part is not maintainable and the suit has to be for the redemption of the whole mortgage and in that case it may be that the mortgagee has been substantially in possession of the best part of the mortgage holding. The applicability of Section 4-A will have therefore to be considered under two entirely different circumstances. The first defendant in paragraph 15 of the written statement has specifically raised the contention that the suit framed for partial redemption was not maintainable. No issue however seems to have been raised in the case on this matter. To consider that question the framing of an issue is essential. It is necessary to have a decision on the question whether the suit framed for redeeming a part only of the mortgage holding is maintainable. If the suit is held to be maintainable the question that would have to be determined is whether the reservation of the building and one coconut tree would be sufficient for the purpose of claiming possession for 50 years as contemplated by Section 4-A (1) (a). This question as we said would be quite different from the question whether the entire mortgage would be redeemable.

5. We therefore set aside the decrees of the Courts below and remit the case to the trial Court for framing a proper issue regarding the contention about the maintainability of the suit, try it and then dispose of the suit. If the suit is held to be maintainable, the further question whether Section 4-A (1) (a) of the Act would be applicable will also be determined and the suit disposed of afresh in accordance with law. The appellant will be entitled to a refund of the Court fee paid on the appeal memorandum. The costs in this appeal will be costs in the cause and will be provided by the decree to be passed.


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