Holding

The appellants did not satisfy either condition of Section 4A; therefore the provision did not apply and their possession was unlawful.

Summary

The suit land was mortgaged in 1896 and a decree for redemption was finally passed in 1960. During execution proceedings the mortgagor deposited the mortgage money and value of improvements on 14 March 1969, after which the mortgagee's right to possession ceased. The appellants argued that Section 4A of the Kerala Land Reforms (Amendment) Act, 1969 – which contains a non‑obstante clause – made them deemed tenants despite the final redemption decree. The Supreme Court held that the appellants were no longer mortgagees in possession on 1 January 1970 and had not possessed the land continuously for fifty years immediately preceding that date, so the conditions of Section 4A were not satisfied. Consequently, their possession was unlawful and they could be evicted. The appeal was dismissed.

Issues considered

Whether the non‑obstante clause in Section 4A overrides a final decree of redemption and confers the benefit of deemed tenancy on the mortgagee.
Whether the appellants satisfied the two statutory conditions of Section 4A: (a) being a mortgagee in possession on 1 January 1970, and (b) having continuous possession for at least fifty years immediately preceding that date.
What is the effect of the deposit of mortgage money on the mortgage relationship and the right to possession.

Legislation cited

Kerala Land Reforms (Amendment) Act, 1969s. 4A(l)(a)
Transfer of Property Act, 1882s. 60, s. 83

Subjects

Usufructuary mortgageDeemed tenancyNon‑obstante clauseKerala Land Reforms ActMortgagee in possessionRedemption decreeContinuous possessionLegal fictionEviction

Judgment

MANCHER! PUTHUSSERI AHMED AND ORS. A
v.
KUTHIRAVATTAM ESTATE RECEIVER
;.
... SEPTEMBER 11, 1996

(N.P. SINGH AND S.B. MAJMUDAR, JJ.) B

Tenancy and Land Laws :

Kera/a Land Refonns Act, 1964: Section 4A(l)(a).

Usufrnctuary mortgage-Mortgagee-Deemed tenant-Mortgagor's suit c
for redemption of usufrnctuary mortgage decreed-In execution proceedings
mortgagor deposited mortgage amount and value of improvements on
14.3.1969 i.e. prior to l.1.197(}-S.4A(l)(a)-Conditions for applicability
of-Held: (1) He must be a mortgagee-in-possession of land on the date S.
4A came into force i.e. 1.1.1970 and (2) must ltave remained as such D
continuously for 50 years' period till 1.1.1970 i.e. at least from 31.12.1969 to
1.1.197o-Mortgagees not fulfilling these conditions not entitled to claim
benefit under S. 4A on basis of non-obstante clause therein-Or by virtue of
continuous possession for mere 50 years' any time prior to
l.l.197o-Mortgagee ceased to be a mortgagee-in-possession from 14.3.1969
and continued only as judgment-debtor unlawfully-There/ore, first condition E
not fulfillei:f-Mortgagee having ceased to be in lawful possession even before
1.1.1970 second condition also •wt fulfilled-Hence, m01tgagee not entitled
-'·
to the benefit of S. 4A.

Transfer of Property Act, 1882 : Sections 60 and 83.
F
Mortgage-Redemption of-Suit for--Decreed--Mortgagor deposited
mortgage amount and value of improvements-Held : Relationship of
mortgagor and mortgagee snapped-Mortgagee ceased to remain as
such-Thereafter till actual delivery of possession mortgagee remained merely
t'
as judgment-debtor in illegal possession and could be evicted. G
Interpretation of statutes :

Non-obstante clause-{]nless conditions for applicability of a section
in a statute were fulfilled, non-obstante clause was of no help for invoking
provisions of Section. H
813
814 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A Legal fiction-Cowt must ascertain purpose for which fiction was
created--Such fiction could not be extended beyond purpose for which it was
created on analogy or by addition or deletion of words not contemplated by
legislature.

The suit land was mortgaged in the year 1896 by predecessor-in-
B interest of the respondent decree-holder with the predecessor-in-interest
of the appellants. The predecessor-in-interest of the respondent filed a
suit in 1946 for redemption of the usufrcutuary mortgage. The suit was
decreed and after dismissal of second appeal, became final in 1960. There-
after, the respondent-mortgagor filed Execution Petition for recovery of
c possession of the property and in the execution proceedings he deposited
the mortgage amount and value of improvements on 14.3.1969. During the
pendency of the execution proceedings Section 4A of the Kerala Land
Reforms Act, 1964 came into force.

The appellants contended before the Executing Court that they were
D entitled to the benefit of Section 4A of the Act. Therefore, they could not
be evicted from the suit property in their possession as they had become
deemed tenants of the lands occupied by them. The Executing Court
rejected these contentions and that decision was upheld by the Appellate
Court and Revisional Court. Being aggrieved the appellant preferred the
E present appeal.

On behalf of the appellants it was contended that there was a
non-obstante clause for the applicability of Section 4A and despite there
being a judgment, decree or order against the appellants which had "-
become final they were entitled to get the benefit of this Section; and that
F the words"immediately preceding the commencement" occurring in Section
4A should be given a more expanded meaning as this was a beneficial
legislation.

Dismissing the appeal, this Court
G HELD : 1.1. Section 4.A(l) of the Kerala Land Reforms Act, 1964
will operate notwithstanding any judgment, decree or order of any court
against the concerned mortgagee in possession if the following conditions
are satisfied : [822-C]

H 1. He must be a mortgagee in possession of the land on the date of
MANCHER! PUTHUSSERI AHMED v. KUTHIRAVATIAM ESTATE RECEIVER 815

the coming into force of the Section which is not retrospective in nature A
meaning thereby the person who wants the benefit of Section 4A must be
a mortgagee in possession of land on 1.1.1970. [822-D]

2. Such a mortgagee in possession on 1.1.1970 must satisfy the
further condition that he was holding the land comprised in the mortgage
B
for a continuous period of not less than fifty years iinmediately preceding
the commencement of the Kerala Land Reforms (Amendment) Act, 1969
meaning thereby for a period of not less than fifty years immediately before
1.1.1970. [822-E-F]

1.2. Despite the decree for redemption which might have been passed c
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 D
mortgagee ceases and thereafter till actual delivery of possession the
erstwhile mortgagee in possession remains merely as judgment-debtor in
illegal possession. [823-C-D]

P1ithi Nath Singh and Ors. v. Sumj Alzir and Ors., AIR (1963) SC 1041 E
and Parameswara11 Govi11da11 v. Kiislman Bhaskara11 & Ors., [1993] Supp.
1 sec 572, relied on.

2.1. In the instant case once the respondent-mortgator deposited the
mortgage amount in execution proceedings on 14.3.1969 the status of the
appellants as erstwhile mortgagees in possession underwent a metamor-
F
phosis and thereafter they continued to remain in possession only as
judgment-debtors illegally sticking to the land. The relationship of
mortgagor and mortgagee between the parties got snapped. Almost 9
months prior to 1.1.1970 the appellants had ceased to be mortgagees in
J>ossession and were only in unlawful possession of the decretal land. G
Thereafter, the appellants were liable to be forthwith evicted in execution
of the decree for redemption which had become final. Thus the very first
condition for applicability of Section 4A was not fulfilled by the appellants.
Once this first condition was not satisfied, Section 4A went out of picture
for the appellants. [823-B; E] H
816 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A 2.2. As regards the second condition the words '50 years immediately
preceding the commencement of the Kerala Land Reforms (Amendment)
Act, 1969' are very significant. In order that continuous period of fifty years
can start immediately preceding the coming into force of Section 4A it
must start from a day earlier, i.e., from 31st December 1969 backwards
B 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
or through his predecessor-in-interest continuously at least from 31st
December 1919 till 31st December 1969 without any break. In the present ,....
c case the appellants were not in possession as mortgagees in possession for
this whole period but their status as mortgagees in possession had come
to an end and the relationship of mortgagor and mortgagee had got
snapped between the parties from 14th March 1969 onwards. Thus for a
peri•1d of almost 9 months prior to 1.1.1970 the appellants were not in
D possession as mortgagees. On the contrary from 14th March 1969 onwards
their possession of the suit land was unlawful. Thus even the second
condition is not satisfied for applicability of Section 4A. [825-B-D]

3.1. It is not possible to accept the contention that in view of the
E non-obstante clause for applicability of Section 4A and despite there being
a judgment, decree or order against the appellants which had become
final they were entitled to get the benefit of this Section. All that the
non-obstante clause means to convey is to the effect that even though a
mortgagee in possession might have suffered a judgment or decree against -
F him which might have become final so long as his status as mortgagee in
possession has survived even 11ending execution proceedings and by that
time if on 1.1.1970 the Section gets attracted then such a mortgagee in
possession even though having an adverse judgment or decree against him
can get the benefit of Section 4A if the relevant conditions of said Section
are fulfilled by him and in such an eventuality merely because such a
G mortgagee in possession is covered by the sweep of any final judgment or
decree for redemption the same will not come in his way. In the instant
case, however, not only the appellants were covered by a final decree for
redemption but they had lost the status of mortgagees in possession ·
almost 9 months prior to the coming into force of Section 4A. Therefore,
H on the date on which the Section operated they were not longer mortgagees
MANCllERI l'UTHUSSERI AHMEDv. KUTHIRAVATfAM ESTATE RECEIVER 817

in possession. Conse11uently the non-obstante clause which would have A
otherwise helped them if they had continued as mortgagees in possession
on 1.1.1970 does not avail the appellants. [825-E-H; 826-A-B]

... 3.2. It is not possible to accept the further contention that in any
case the appellants had remained in possession as mortgagees by themsel-
ves and through their predecessors for more than fifty years, that the B
mortgage was of 1896 and even by the date the suit was tiled fifty years'
period was over and that the words 'immediately preceding the
commencement' may be given a more expanded meaning as this is a
beneficial provision. In the first place the Section creates a legal fiction.
Therefore, the express words of the Section have to be given their full C
meaning and play in order to find out whether the legal fiction con-
templated by this express provision of the Statute has arisen or not in the
facts of the case. In interpreting a provision creating a legal fiction the
Court is to ascertain for what purpose the fiction is created, and after
ascertaining this, the Court is to assume all those facts and conse11uences
which are incidental or inevitable corollaries to the giving effect to the D
fiction. But in so construing the fiction it is not to be extended beyond the
... purpose for which it is created, or beyond the language of the section by
which it is created. It cannot also be extended by importing another
fiction. However beneficial may be the scope and ambit of the legal fiction
created by the legislature while enacting Section 4A such fiction can arise E
only when the express language of the Section laying down the conditions
precedent for raising of such a fiction is complied with by the concerned
mortgagee in possession seeking the benefit of such a deeming fiction. Such
a fiction cannot be extended by the Court on analogy or by addition or
deleting words not contemplated by the legislature. [826-D-F; 828-B]
F
Co111111issio11er of l11come Tax, Bombay City v. Shaku11tala & Ors., AIR
(1966) SC 719 and Co111111issio11er of l11come TtLt (Ce11tral), Calcutta v. Moo11
Mills Ltd., AIR (1966) SC 8711, relied on.

> 4. In the instant case, the appellants have failed to fulfil both the G
conditions precedent for applicability of Section 4A and for getting the
benefit of deemed fiction arising therefrom. Conse11uently the High Court
as well as the courts below were perfectly justified in not extending the
benefit of Section 4A to the appellants. [828-C-D]

CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 868 of H
818 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A 1980 Etc.
From the Judgment and Order dated 24.10.79 of the Kerala High
Court in C.R.P. No. 3958 of 1977-F. i...
'
A.S. Nambiar, Smt. Shanta Vasudevan and P.K. Manohar for the
B Appellants.

Ms. Baby Krishnan for K. Prabhakaran for the Respondent. •

The Judgment of the Court was delivered :

c S.B. MAJMUDAR, J. Both these appeals by special leave challenge
judgment of the High Court of Kerala. at Ernakulam rendered in two
Revision Applications moved by two different sets of defendants/judgment-
/
debtors who were parties to Original Civil Suit No. 22 of 1946 of the
Sub-Court, Manjeri and who were sought to be evicted .from the suit
D property by the decree-holder in one and the same Execution Petition No.
543 .of 1962. Two separate Revision Applications came to be filed in the
High Court raising identical contentions by these two sets of contesting
defendants because they had lost in two separate appeals filed by them
against the executing Court's order before the Sub-Court at Manjeri. In
E bot~ these revision applications the appellants raised identical contentions
which were repelled by the High Court and that it is how they are before
this Court in these two appeals. As identical question arises for our
consideration the appeals were heard together and are being disposed of
by this common judgment.

p A short point arises for our consideration in these appeals. The
appellants contend that they are entitled to the benefit to Section 4A of
the Kerala High Court Land Reforms Act, Act I of 1964 as amended by
Act 35 of 1969 (hereinafter referred to as 'the Act'). The said provision
seeks to confer the status of deemed tenancy on mortgagees in possession
under circumstances mentioned in the said Section. The appellants who
G were erstwhile mortgagees in possession of the suit land contend that
despite the decree for redemption passed by the Civil Court had become
final against them, even during execution proceedings they are entitled to
get the benefit of Section 4A of the Act. Therefore, their possession should
not be disturbed. The Executing Court as well as the Appellate Court and
H also the Revisional Court have negatived this common contention.
MANCHER! PUTHUSSERIAHMED,. KUTHIRAVA1TAM ESTATE RECEIVER (S.B. MAJMUDAR, J.] 819

In order to appreciate the grievance of the appellants/judgment- A
debtors centering round the aforesaid provision a few relevant facts may
be noted at the outset.

The suit land was mortgaged by predecessor-in-interest of the
B
respondent decree-holder with the predecessor-in-interest of the appel-
lants. The predecessor-in-interest of the respondent filed Original Suit No.
212 of 1946 in the Munsifs Court at Manjeri for redemption of the suit
usufructuary mortgage in favour of the appellants and other defendants. In
all there were 83 defendants who represented the mortgagees in posses-
sion. Various defences raised by the defendants were negatived and ul- c
timately the Trial Court decreed the suit except as regards a part of the
property in possession of 81st defendant. The dissatisfied plaintiff filed an
appeal being A.S. No. 164 of 1989 before the Appellate Court against the
81st defendant against whom the suit was dismissed by the Trial Court. The
remaining 82 defendants do not appear to have challenged the said decree D
of the Trial Court against them. The Appellate Court by its order dated
12th March.1956 allowed the appeal of the plaintiff against 81st defendant
and held that property held by Slst defendant was also included in the
. mortgage deed Ext. Al dated 15.12.1896. Slst defendant carried the matter
in Civil Appeal before the High Court being Second Appeal 163 of 1956 E
which also came to be dismissed on 10th June 1960. Thus by that date the
decree for redemption of the suit mortgage against all the 83 defendants
became final. Thereafter the respondent plaintiff-mortgagor filed Execu-
tion Petition No. 543 of 1962 for recovery of possession of the property
from the respective judgment-debtors. During the pendency of the ex~cu
F
tion proceedings Kerala Land Reforms Act came into force from 1st April
1964. The Act created certain deemed tenancies and granted fixity of
tenure to those deemed tenants. This Act was amended by Act 35 of 1969
. by which Section 4A, with which we are concerned, was brought on the
Statute book with effect from 1.1.1970. The appellants contended before
the Executing Court that they were entitled to the benefit of Section 4A G
and, therefore, they could not be evicted from the suit property in their
possession as they had become deemed tenants of the lands occupied by
them. The Executing Court, a~ noted above, rejected these contentions and
that decision which has been upheld by Appellate Court and the Revisional
Court is the subject-matter of challenge before us. Section 4A on which H
820 SUPREMi~ COURT REPORTS jl996) SUPP. 5 S.C.R.

A strong reliance is placed by learnecl senior counsel for appellants reads as
under:

"4A. Certain mortgagees and lessees of mortgagees to be deemed
tenants : '
B 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 of a mortgagee of such land shall be deemed to be tenant
c 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
D
(b) the mortgagee or lessee has constructed as building for his
own residence in the land comprised in the mortgage and he
was occupying such building for such purpose for a con-
tinuous period of not less than twenty years immediately
E 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 family, such family was holding any other land
exceeding two acres in extent on the date of publication of
F the Kerala Land Reforms (Amendment) Bill, 1968, in the
Gazette; or

(c) the land comprised in the mortgage was waste land at the
time of mortgage or land to which the Madras Preservation

G
of Private Forests Act 1949, would have applied if that Act
has been in force at the time of mortgage, and -
"'·-
(i) the mortgage or lessee was holding such land for a con-
tinuous period of not less than thirty years immediately
preceding the commencement of the Kerala Land Reforms
H (Amendment) Act, 1969; and
MANCHER! PUIBUSSERI AHMED''· KlITHIRA VATIAM F-'"fATE RECEIVER (S.B. MAIMUDAR. J.( 821

(ii) the mortgagee or lessee has effected substantial improve- A
ments on such land before such commencement.

,. Explanation 1.- For the purposes of this sub-section, in com-
puting the period of continuous possession er 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. B

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
predecessors-in-interest or the mortgage,e or lessee was or were
holding the property shall also be taken into account.
c
Explanation III.- For the purposes of clause (b ). -

(i) "mortgagee" or "lessee" shall include a predecessor-in-in-
terest of the mortgagee or lessee, as the case may be :
D
(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
E
shall be deemed to be occupation by the mortgagee or lessee, as
the may be, for such purpose.

Explanation V.- In calculating the extent of land 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 F
members of such family shall be deemed to be held by the family.

Explanation VI.- For the purposes of sub-clause (ii) of clause
(c),
1.. ,;..
_.... (i) Improvements made by the mortgagee shall be deemed to G
be improvements made by the lessee;

(ii) "mortgagee" or "lessee" shall include a predecessor-in-in-
terest of the mortgagee or lessee, as the case may be.

Explanation VII.- For the purposes of clause (c) - H
822 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A (i) improvements shall be deemed to be substantial improve-
ments 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;
..
B (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."
c A mere look at the said provision shows that the said Section will operate
notwiths~anding any judgment, decree or order of any court against the
concerned mortgagee in possession if the following conditions are satis-
fied:

D 1. He must be a mortgagee in possession of the land on the date
of the coming into force of that Section which is not retrospective
in nature meaning thereby the person who wants the benefit of
Section 4A must be a mortgagee in possession of land on 1.1.1970.
As we are not concerned with other types of excluded lands we
need not refer to them.
E
2. Such a mortgagee in possession on 1.1.1970 must satisfy the
further condition that he 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
F Reforms (Amendment) Act, 1969 meaning thereby for a period of
not less than fifty years immediately before 1.1.1970. As we are
not concerned with clause (b) and (c) in the present proceedings
we need not dilate thereon.

When we turn to the fact to the present cases, it becomes clear that none
G of the aforesaid two conditions has been satisfied by the appellants. It is
true that the appellants were mortgagees in possession through their
predecessor-in-interest since 15.12.1996 and can get benefit of Explanation
II and, therefore, years back they had completed more than fifty years of
possession as mortgagees. It is also true that decree for redemption of the
H suit mortgage against them had become final and during execution
MANCHER! PUTHUSSERI AHMED'· KUTHIRAVAITAM ESTATE RECEIVER [S.B. MAJMUDAR, J.] 823

proceedings Section 4A had come into force. However there is a further A
fact which stares in the face of the appellants. In the execution proceedings
themselves the respondent decree-holder mortgagor deposited the
;
mortgage amount and value of improvements on 14th March 1969 and
consequently the Executing Court ordered delivery of property on such
... payment to the decree-holder. Once that happened the status of the
B
appellants as erstwhile mortgagees in possession underwent a metamor-
phosis and thereafter they continued to remain in possession only as
judgment-debtors illegally sticking to the land. The relationship of
mortgagor and mortgagee between the parties got snapped. It is now well
settled that despite the decree for redemption which might have been
passed by a competent court and which might have become final till the c
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 D
erstwhile mortgagee in possession remains merely as judgment-debtor in
illegal possession. In the case of P1ithi Nath Singh and Ors. v. Suraj Ahir
~.
and Ors., AIR (1963) SC 1041 it" has been held by Raghubar Dayal, J.,
speaking for the two member Bench of this Court that when th~ mortgage
e, money is paid by the mortgagor to the mortgagee, there does not remain
any debt due from the mortgagor to the mortgagee, and therefore, the E
mortgage can no longer continue after the mortgage money has been paid.
Further, the definition of usufructuary mortgage itself leads to the con-
• clusion that the authority given to the mortgagee to remain in possession
_;
of the mortgaged property ceases when the mortgage money has been paid
up. When the mortgage money has been paid up, no question of ap- F
propriating the rents and profits accruing from the property towards
interest or mortgage money can arises. If the mortgage money has been
received by the mortgagee and thereafter he refuses to perform the acts
which he is bound to do under S 60, the mortgagor can enforce his right
,. to get back the mortgage document, the possession of the mortgaged

- property and the reconveyance of that property through court.

The same view was reiterated by a later decision of this Court in the
G

case of Parameshwaran Govindan v. Krishnan Bha.~/mr~.': & Ors., [1993]
Supp. 1 SCC 572. K. Ramaswamy, J. speaking for the two member Bench
of this Court while considering the scope and ambit of Section 4A of this H
824 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A very Act held that from the date of deposit of the decretal arr.ount the
possession of the mortgagee-respondent would be unlawful. Section 4-A of
the Land Reforms Act not denude the right to re-possession of the
mortgagor under Section 60 of th.: Transfer of Property Act without ass~nt
of the President of India. Section 4-A of the Land Reforms Act which
engrafts a non-obstante clause is of little assistance to the respondent, as
B he did not complete 50 years of continuous possession on the .date when
the Amending Act 35 of 1969 came into force. It was further observed that
a conjoint reading of Section 60, Section 76(h) read with Section 83 of
Transfer of Property Act would amplify that on deposit of the mortgage
amount, the contractual relationsh:ip of mortgagor and mortgagee cease.
C There does not remain any debt from the mortgagor to the martgagee 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
D mortgagee continues in unlawful possession.

In view view of this settled legal position, therefore, it must be held
that the appellants' status as mortgagees in possession came to an end on
14th March 1969 when the mortgage money was deposited by the respon-
dent decree-holder in execution proceedings. Thereafter appellants' pos-
E session became unlawful and they were liable to be .forthwith evicted in
execution of the decree for redemption which had become final. Conse-
quently it must be held that the very first condition for applicability of
Section 4A of the Act was not satisfied by the appellants. To recapitulate
the first condition for applicability of Section 4A is that the concerned
person who seeks the benefit of Section 4A for getting status of deemed
F tenant must be in possession of the concerned land as a mortgagee on
1.1.1970 when Section 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 condi-
tion for applicability of Section 4A was not fulfilled by the appellants. Once
G this First condition was not satisfied, Section 4A went out of picture for
the appellants. Even that apart the second condition was also not satisfied
for applicability of Section 4A in their favour. They cannot get the benefit
of Section 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 Section 4A mean-
H ing thereby that prior to 1.1.1970 for continuous 50 years backwards
MANCHER! PUTHUSSER! AHMEDv. KUTHIRAVAITAM ESTATE RECEIVER [S.B. MAJMUDAR, J.J 825

without a break they must have continued to remain in possession as A
mortgagees in possession. The words '50 years immediately preceding the
commencement of the Amendment Act of 1969' are very significant. In

..
j.
order that continuous period of fifty years can start immediately preceding
the coming into force of Section 4A it must start from a day earlier, i.e.,
from 31st December 1969 backwards upto a period of fifty years meaning
thereby stretching back till 31st December 1919. Thus even though the B
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 or through his predecessor in interest
continuously at least from 31st December 1919 till 31st December 1969
without any break. On the facts of the present case it cannot be disputed
and it is not in dispute that the appellants were not in possession as
c
mortgagees in possession for this whole period but their status as
mortgagees in possession had come to an end and the relationship of
mortgagor and mortgagee had got snapped between the parties from 14th
March 1969 onwards. Thus for a period of almost 9 months prior to
1.1.1970 the appellants were not in possession as mortgagees. On the D
contrary from 14th March 1969 onwards their possession of the suit land
" was unlawful. Thus even the second condition is not satisfied for ap·
plicability of Section 4A.
·•
.. Having realised this difficulty in the way of the appellants learned
-1 senior counsel for the appellants submitted that there is a non-obstante E
clause for applicability of Section 4A and consequently despite there being
a judgment, decree or order against them which had become final they are
_, entitled to get the benefit of this Section. We fail to appreciate how the
said non· obstante clause can be of any assistance to the appellants on the
./ facts of the present cases. All that the non-obstante clause means to convey
F
is to the effect that even though a mortgagee in possession might have
suffered a judgment or decree against him which might have become final
so long as his status as mortgagee in possession has survived even pending
- ........
execution proceedings and by that time if on 1.1.1970 the Section gets
attracted than such a mortgagee in possession even though having an
' G
~--=-- adverse judgment or decree against him can get the benefit of Section 4A
if the relevant conditions of said Section are fulfilled by him and in such
an eventuality merely because such a mortgagee in possession is covered
by the sweep of any final judgment or decree for redemption the same will
not come in his way. On the facts of the present cases, however as we have
H
l
J
826 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A seen, not only the appellants were covered by a final decree for redemption
but they had lost that status of mortgagees in possession almost 9 months
prior to the coming into force of Section 4A. Therefore, on the date on
which the Section operated they were no longer mortgagees in possession.
A
Consequently the non-obstante clause which would have otherwise helped
them if they had continued as mortgagees in possession on 1.1.1970 does
B. not avail the appellants on the facts of the present cases. The learned senior
counsel for the appellants next contended that in any case the appellants
had :-emained in possession as mortgagees by themselves and through their
predecessors for more than fifty years, that the mortgage was of 1896 and
even by the date the suit was filed was filed, fifty years' period was over.
c That may be so. However the requirement of the second condition, as we
have shown earlier, is that such a mortgagee in possession who wants to
avail of the benefit of Section 4A must show that he continued in possession
as mortgagee for fifty years or more continuously at least from 31.12.1919
upto 31.12.1969 which was immediately preceding the commencement of
D Section 4A with effect from 1.1.1970. Learned senior counsel in this
connection submitted that words 'immediately preceding the
commencement' may be given more expanded meaning as this is a benefi-
cial provision. It is difficult to agree. In the first place the Section creates
-
a legal fiction. Therefore, the express words of the Section have to be given
their full meaning and play in order to find out whether the legal fiction
E contemplated by this express provision of the Statute has arisen or not in
the facts of the case. Rule of construction of provisions creating legal
fictions is well settled. In interpreting a provision creating a legal fiction
the Court is to ascertain for what purpose the fiction is created, and after
,_
ascertaining this, the Court is to assume all those facts and consequences
which are incidental or inevitable corollaries to the giving effect to the
F
fiction. But in so construing the fiction it is not to be extended beyond the
purpose for which it is created, or beyond the language of the section by
which it is created. It cannot also be extended by importing another fiction.
In this connection we may profitably refer to two decisions of this Court.
In the case of Commissioner of Income Tax, Bombay City II v. Shakuntala
G & Ors., AIR (1966) SC 719 a three-Judge Bench of this Court speaking
through S.K. Das, J., made the following pertinent observation in para-
graph 8 of the Report :

"The question here is one of interpretation only and that inter-
H pretation must be based on the terms of the section. The fiction
MANCHER!PlJIHUSSERIAHMEDv.KlJIHIRAVATTAMESTATERECEIVER[S.B.MAJMUDAR,J.] 827

enacted by the Legislature must be restricted by the plain terms A
of the statute."

In another case reported in the same volume at page 870, namely, Com-
J missioner of Income-tax (central), Calcutta v. Moon Mills Ltd. AIR (1966)
..._ SC 870 another three-Judge Bench, of this Court speaking through Subha
Rao, J ., observed in para 8 of the Report in connection with the provision B
creating such legal fictions as under :

"The fiction is an indivisible one. It cannot be enlarged by import-
ing another fiction ........"

In the present cases fiction created by Section 4A is circumscribed by its
c
express words. Before such a deemed tenancy can arise it must be shown
by the concerned beneficiary of the said provision that he was a mortgagee
in possession for a continuous period of not less than fifty years immedi-
ately preceding the commencement of the said Section. The words 'iinme-
diately preceding the commencement' must necessarily be given their D
ordinary and full meaning. They necessarily point out the legislative intent
that the fiction is created only for covering such type of cases where the
mortgagee in possession not only exists on the land as mortgagee on
1.1.1970 but also continuously existed as such for a period backward
stretching upto at least 50 years in past from 31.12.1969 which was the day
E
immediately preceding such commencement. Argument of learned senior
counsel was that if the word '50 years of continuous possession as
mortgagee at any time. prior to the coming into force of the amending Act'
• .I
are read in the Section by implication he would qualify for the benefit of
Section 4A. Such a contention would have stood the test if the Section
would have been worded differently, namely, as follows : F

"such mortgagee was in continuous possession for a period of not
less than 50 years prior to the coming into force of the Amending

,. Act."

Such words are not found in the Section. In fact learned senior counsel for G
• the appellants wants us to read the Section after omitting the word 'imme-
diately', advisedly prefixed by the legislature to the ward 'preceding'. Such
an exercise in not permissible for the Court. We have to keep in view that
as per the Section the 50 years' period is circumscribed by further require-
ment that such continuous period of occupation as mortgagee in possession H
828 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A must exist without break or any hiatus till the date of coming into force of
the. Act and must consist of at least 50 years continuous occupation
immediately prior to the coming into force of Section 4A, as such
mortgagee in possession. However, beneficial may be the scope and ambit
of the legal fiction created by the legislature while enacting Section 4A such
B fiction can arise only when the express language of the Section lying down
the conditions precedent for raising of such a fiction is complied with by
the concerned mortgagee in possession seeking the benefit of such a
deeming fiction. Such a fiction cannot be extended by the Court on analogy
or by addition or deleting words not contemplated by the legislature.

C As a result of the aforesaid discussion it must, therefore, be held that
the appellant have failed to fulfil both the condition precedent for ap-
plicability of Section 4A and for getting the benefit of deemed fiction
arising therefrom. Consequently the High Court as well as the courts below
were perfectly justified in not extending the benefit of Section 4A to the
appellants. In the result these appeals fail and are dismissed. On the facts
D and circumstances of the cases there will be no order as to costs.

v.s.s. Appeals dismissed.