C K KUTTAPPAN Vs. KARTHIYAYANI

JUDGEMENT

(1.) The petitioners are counter petitioners 2 and 5 in a debt relief petition before the Sub Court of Kottayam, numbered as D. R. P. O. P. No. 89 of 1971. Respondents 1 to 10 herein are the petitioners in that O. P. The 11th respondent is the first counter petitioner there. The debt relief petition was filed by respondents 1 to 10 under S.11 of Act 11 of 1970 for redemption of Ext. A1 mortgage claiming that they are agriculturists entitled to redeem the mortgage on deposit of 1/3rd of the mortgage amount. The 11th respondent is the mortgagee. Counter petitioners 2 to 4 in the case were impleaded as persons residing in the buildings in the property. The additional counter petitioners 5 to 7 in the O. P. is the wife and children of the 4th counter petitioner. The first counter petitioner in the O. P., namely the 11th respondent herein had contended that the applicants before the lower court are not agriculturists as defined in Act 11 of 1970 and he had rented out the buildings in the property in the ordinary and usual course of management as a prudent and reasonable man would do and therefore, the tenancy arrangement would bind respondents 1 to 10 mortgagors. The revision petitioners as tenants in occupation of the buildings let out to them also contended that the petition is not maintainable. They also contended that they cannot be evicted in these proceedings since they are protected under S.76(a) of the Transfer of Property Act. The second counter petitioner, namely the first revision petitioner contended that he can be evicted only under the Kerala Buildings (Lease and Rent Control) Act since the tenancy binds the petitioners. Some of the tenants in addition, also raised a contention that they are kudikidappukars and cannot be evicted since the tenancy binds the mortgagors as well.

(2.) The Trial Court based on Exts. A2 and A3 found that the petitioners have got interest in other agricultural land and therefore they are entitled to benefits under S.11 of Act 11 of 1970. It was found that the mortgaged property cannot be termed as an agricultural land. The Trial Court also found that the tenancy arrangements with counter petitioners 2 onwards will bind the mortgagors and hence they are competent only to get symbolical possession of the schedule property on deposit of arrears of interest for the mortgage amount at the rate of Rs. 20/- per mensem and also Rs. 1142.79 as value of improvements. The mortgagors were to treat as per that decision, counter petitioners 2 onwards, namely petitioners herein as tenants under them. The mortgagors were also allowed to discharge the remaining portion of the mortgage amount as provided in S.11(4) of the Act.

(3.) Respondents 1 to 10 herein, the mortgagors filed A. S. No. 143 of 1977 against the decision in the O. P. That Court, namely the appellate Court found that even though some of the applicants alone were agriculturists, the petition is maintainable under S.11 of Act 11 of 1970. It was also found by the appellate Court that S.76(a) of the Transfer of property Act does not protect the rights of the counter petitioners 2 onwards, holding that the tenancy arrangements entered into by the mortgagee do not bind the mortgagors. The appellate court allowed the mortgagors to redeem the property. The lower appellate court dismissed the cross appeal filed by the revision petitioners. It is that decision that is now questioned here.