MOIDEEN Vs. AYSA BEE

JUDGEMENT

(1.) Whether the suit document is a mortgage or a lease was the main question that engaged the attention of the courts below. It has been concurrently held that the document should be read as a mortgage and not as a lease and the plaintiff has been given a decree. That is challenged in this second appeal by the first defendant in the suit.

(2.) At the hearing another question is raised and that concerns the applicability of S.6B of Kerala Land Reforms Act 1 of 1964. According to the first defendant he should be deemed to be a lessee even assuming that the suit document is a mortgage. That is because he is a mortgagee with possession of immovable property at the commencement of the Act and he is holding the property in consideration of payment of michavaram specified as such in the document evidencing the transaction. That would be sufficient if the area is one to which the Malabar Tenancy Act 1929 extended. That the property is within such an area is not disputed. That the document provided for payment of michavaram is also evident. The property is put in the possession of the person who took the document in lieu of the amount of Rs. 400/- advanced by him. Therefore it is contended that the mortgage was one with possession. If on this question the first defendant succeeds there is no need to go into the question as to the real character of the document, whether it is a mortgage or a lease.

(3.) The only dispute before me concerns the claim of the first defendant as a mortgagee with possession. That he was originally a mortgagee with possession is not disputed. But it is said that after the decree of the appellate court the decree holder got delivery of the property, so much so that on the date when the Kerala Land Reforms (Amendment) Act 35 of 1969 came into force amending the principal Act, the first defendant was not a mortgagee with possession, in the sense, a mortgagee who still had possession of the property. This, according to the plaintiff, would be a sufficient answer, as, by reason of the divestiture of possession by court delivery, the mortgagee ceased to be a mortgagee with possession and therefore naturally he ceased to have such interest as would enable him to invoke S.6B of Act 1 of 1964. That section reads as follows: