MATHEVAN PILLAI PADMANABHA PILLAIversusARULAPPAN NADAR YOVAN NADAR AND ORS.

           MATHEVAN PILLAI PADMANABHA PILLAI                                       A
                           v.
         ARULAPPAN NADAR YOVAN NADAR AND ORS.

                           SEPTEMBER 4, 1998

              (K.T. THOMAS AND M. SRINIVASAN, J.1.]                                B

      Kera/a Land Refomzs Act, 1964 : Section 4-A (as amended by Act 35
of 1969).

       Deemed tenant-Pre-condition.1-Mortgagor executed us11f111ctua1y             C
11101tgage infavour of mo1tgagee in 1094 ME ( 1919 )--Doi:wnent executed in
1119 ME ( 1944) recited that 11101tgage amount was received by m01tgagee and
land was swrendered to mo1tgag01-A second m01tgage was given by the
same m01tgagdr to the same mmtgagee in ll22 ME ( 1947) for a larger
amount inclusive of the amount of the earlier mo1tgage-Mo1tgagor's suit for
redemption of the second mmtgage resisted by moltgagee on ground that the          D
land was in mmtgagee's possession for a continuous pe1iod of more than 50
years p1ior to the relevant date i.e. 1. 1. 1970 and, therefore, 11101tgagee was
emitted to fu:ity of tenure by vi1tue of S. 4-A-Trial cowt passed a decree for
redemption-Appellate cowt found as a fact that possession never passed 011
to the m01tgagor-Held: Mmtgagee must hold the land comp1ised in the
                                                                                   E
mo1tgage for a continuous pe1iod of 50 years--17zrouglwut the peliod of the
said 50 years the land must be under mmtgage though there ca11 be more than
one m01tgage-l11 view of the finding of fact by appellate coult that possession
never passed on to the m01tgagor, the appellate cowt was 1iglzt i11 dismissi11g
the suit for redemption.
                                                                                   F
      The appellant's predecessor executed a usufructuary mortgage in
favour of the respondents in 1094 ME (1919). In the year 1119 ME (1944)
a document was executed in which it was recited that the mortgagees had
received the mortgage amount and the land was surrendered to the
mortgagor. Simultaneously, another document was executed by the same               G
mortgagor to the same mortgagees. In the year 1122 ME (1947) a further
mortgage was given by the mortgagor to the mortgagees for a larger
amount inclusive of the amount of the earlier mortgage.

     The appellant filed a suit for redemption of the mortgage of the year
1122 ME (1947). The suit was resisted by the respondents on the ground             H
                                    437
    438                   SUPREME COURT REPORTS [1998) SUPP. 1 S.C.R.

A that the respondents had been holding the land continuously for more than
    50 years prior tO the relevant date i.e. 1.1.1970 and, therefore, the respon-
    dents were entitled to fixity of tenure by virtue of Section 4-A of the Kerala
    Land Reforms Act, 1964 (as amended by Act 35 of 1969). The trial court
    passed a decree for redemption. The appellate court had found as a fact
B   that possession did not pass on to the mortgagor although the recitals of
    the document by which the first mortgage was discharged showed that
    possession was handed over to the mortgagor. Thus the appeal filed was
    allowed which was confirmed by the High Court. Hence this appeal.

          On behalf of the appellant it was contended that there was a break
C   in the continuity of possession and, therefore, the period of 50 years
    mentioned in Section 4-A of the Act should be calculatelf frotn the date on
    which the fresh mortgage was executed.

            Dismissing the appeal, this Court

D         HELD : 1.1. Section 4-A of the Kerala Land Reforms Act, 1964 (as
    amended by Act 35 of 1969) requires only the holding of the land comprised
    in the mortgage for a continuous period of not less than fifty years by the
    mortgagee or lessee. Section 4-A does not insist upon there being only one
    mortgage throughout the period of fifty years. The language of Section 4-A
E   is wide enough to show that there can be more th~n one mortgage but the
    mortgagee shall hold the land comprised in t~e mortgage continuously for
    a period of not less than fifty years. [440-D-E]

          1.2. In view of the finding of the appellate court that the mortgagees
    were in possession of the Land for a continuous period of more than 50
F   years, Section 4-A of the Act was attracted and, therefore, the appellate
    court was right in dismissing the suit for redemption. [439-F; 441-C]

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3727 of
    1988.
G
         From the Judgment and Order dated 28.11.85 of the Kerala High
    Court in S.A. No. 774 of 1980.

            G.V. Chandrashekhar and T.G.N. Nair for the Appellant.

H           P.S. Poti and Ms. Malini Poduval for the Respondents.
        M. PILLAI P. PILLAI v. A NADAR Y. NADAR[SRINIVASAN, J.]          439

       The Judgment of the Court was delivered by                               A

        SRINIVASAN, J. The only question which arises for consideration in
 this appeal is whether the respondents can be deemed to be tenants within
 the meaning of Section 4A of the Kerala Land Reforms Act 1 of 1964 (for
 short, 'the Act') as amended by Act 35 of 1969.
                                                                                B
       2.The appellants predecessor executed a usufructuary mortgage in
 favour of the respondents in the year 1094 M.E. corresponmng to 1919. In
 the year 1119 ME (1944) a document was executed in which it was recited
 that the mortgage amount had been received by the mortgagees and the
 land was surrendered to the mortgagor. Simultaneously another document         c
 was e~ecuted by the same mortgagor to the same mortgagees. In the year
 1122 ME (1947) a further mortgage was given by the mortgagor to the
 mortgagees for a larger amount inclusive of the amount of the earlier
 mortgage.
                                                                                D
      3. On 30.1.1974 the appellant filed a suit for redemption of the
 mortgage ~f. the year 1122 ME (1947). The suit was resisted by the
 respondents on several grounds, chief among them being that they had
 become tenants entitled to fixity of tenure by virtue of Section 4A of the
 Act. The trial Court rejected the contentions of the respondents and
 passed a decree for redemption in favour of the appellant.                     E

        4. On appeal by defendants 3,4,5,6, and 8 the Principal Subordinate
 Judge; Trivandrum held that the defendants had been holding the land
 continuously for more than 50 years prior to the relevant.date i.e. 1.1.1970
 and consequently the relief of redemption could not be granted to the          F
 plaintiff. Thus the appeal_ was allowed and the suit was dismissed. The
 appellant .approached the High Court of Kerala with a second appeal
 which ended in dismissal on 28.11.85. Hence, the appellant is before us.

       ·5. According to the appellant the recitals of Ex.A-3 by which the first
  mortgage of 1094 ME was discharged prove that possession was handed G
  over to the mortgagor and when a fresh mortgage was executed by the
  mortgagor to the mortgagee, there was a break in the continuity of posses-
  sion and therefore the period of 50 years mentioned in the Section should
  be calculated from 4.8.1119 ME, the date on which the earlier mortgage
. was terminated and the later mortgage was executed.                           H
    440                   SUPREME COURT REPORTS {1998] SUPP.1 S.C.R.

A         6. The relevant part of the _Section in the Act reads as follows :

               "Section 4A: Certain mortgagees and lessees of mortgagees to
            be deemed tenants :-

               (1) Notwithstanding anything to the contrary contained in any
B           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:
c              (a) the mortgagee or lessee was holding the land comprised in
            the mortgage for a wntinuous period of not less than fifty years
            immediately preceding the commencement of the Kerala Land
            Reforms (Amendment) Act, 1969; or ........."

D        . 7. The Section requires only the holding of the land comprised in the
    mortgage for a continuous period of not less than fifty years by the
    mortgagee or lessee. The Section does not insist upon there being only one
    mortgage throughout the period of fifty years. The language of the Section
    is wide enough to show that there can be more than one mortgage but the
E   mortgagee shall hold the land comprised in the mortgages continuously for
    a period of not less than fifty years.

          8. The Principal Subordinate Judge, Trivandrum has found as a fact
    that possession· did not pass on to the mortgagor on the date of Ex. A-3.
    The relevant passage in his judgment is as follows :
F
                "It is true that ExA-3 has been got executed purporting to
            release the mortgage evidenced by A-2 on payment of the
            mortgage amount and value of improvements. But Ex. B-2 would
            show that in fact no payment of mortgage amount took place in
            fact but there was only adjustme~t of the consideration of A-2
G           mortgage for B-2 otti. It is seen that the executants of A-3 are the
            ottidars under B-2. A-3 and A-2 have been executed by one after
            the other on the same day. Excepting the statement in A-3 regard-
            ing surrender of pGssession there is no evidence of actual posses-
            sion and it is not probable to think there had been in fact a factual
H           surrender of possession under A-3 and an immediate handing over
              M. PILLAI P. PILLAI v. A NADAR Y. NADAR [SRINIVASAN, J.]        441

              possession to the executants of A-3 as per B-2. Under Ex.B-2 the       A
              owner is purported to receive a slightly larger consideration than
              under A-2 otti. Under the circumstances despite A-3 the
              appellant's predecessor should have been found to continue in
              possession pursuant to A-2 otti. The otti sought to be redeemed
              is one evidenced by A-1 which is of the year 1122. It is clear from
              A-1 that possession was not given under that otti but it is directed
                                                                                     B
              therein that the ottidars are to continue in possession granted
              under B-2".
'·         9. That finding was accepted by the High Court in second appeal and
     confirmed.· We do not find any error whatever in the view taken by the          C
     Principal Subordinate Judge and affirmed by the High Court. Hence there
     is no merit in this appeal and it is hereby dismissed. There will be no order
     as to costs.

     v.s.s.                                                    Appeal dismissed.