PARAMESWARAN Vs. KRISHNAN

JUDGEMENT

(1.) Our learned brother Bhaskaran J. has referred this appeal to the Division Bench in view of the importance of the question which calls for decision in this case. That is concerned with the scope of S.4A of the Kerala Land Reforms Act, 1 of 1964. Under that provision a mortgagee with possession of land or the lessee of a mortgagee of such land shall be deemed to be a tenant if such mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. This Court has held that the provision will apply only to the case of mortgagees or lessees who were in possession on 1-1-1970. If they are in such possession and it is further shown that they have been holding the land continuously for more than 50 years, it would appear from the section that they must be deemed to be tenants. In the case before us the question concerns the claim by a mortgagee in possession under a mortgage of 1094 who took a fresh mortgage from the mortgagor in 1098 under the terms of which the earlier mortgage was extinguished. If he and his predecessor in interest are taken to be holding the property even under the mortgage of 1094, he may be considered to be in possession continuously for more than 50 years. If, on the other hand, the possession under the mortgage of 1098 alone is to be taken note of, then S.4A would not apply as the period would be less than 50 years. In that event the defendant in the suit who is the appellant here must succeed in his contention that no final decree for redemption should be passed in the suit since the defendant might be found to be a tenant entitled to fixity of tenure.

(2.) Ext. P2 is the mortgage of 1098 M. E. taken by the predecessor in interest of the defendant in the redemption suit here. That mortgage mentions demise of the same property under the earlier mortgage of 1094 the mortgage amount where under was a sum of Fanams 700/- and further mentions the mortgage of 1098 having been executed for 1400 Fanams. The mortgage also shows that the person who took it was in possession under the mortgage of 1094 and half of the consideration of the mortgage was towards the discharge of the mortgage debt of 1094. Evidently therefore what happened was that the mortgage of the property mortgaged in 1094 for a sum of fanams 700/-, while in possession, took a fresh mortgage Ext. P2 for 1400 fanams part of the consideration for which went in satisfaction of his earlier mortgage and he continued in possession under Ext. P2 mortgage. In these circumstances, if the earlier mortgage could be taken into account, S.4A will be available to the defendant to claim that he is a deemed tenant and therefore not liable to be redeemed. If, on the other hand, he cannot be taken to be in possession under the earlier mortgage in view of a fresh mortgage having been taken in 1098 from the same mortgagor, S.4A would not be available.

(3.) We may extract S.4A which reads as under: