RAMAKRISHNA PILLAI Vs. GOVINDA MENON

JUDGEMENT

(1.) Admittedly the first defendant appellant is in possession of the suit property, 1 acre 40.791 cents in extent, under an Otti transaction of 1063 in favour of his predecessor--in-interest. There are 209 rubber trees thereon. The principal plantation thereon is, therefore, rubber. The Trial Court dismissed the suit for redemption of the suit property holding that since at the time of the Otti transaction it was not a rubber plantation, S.4A(1)(a) of the Kerala Land Reforms Act, 1963 would govern the case. The lower appellate court took the view that since it was a rubber plantation at the time S.4A came into force, that provision would not stand in the way of passing a redemption-decree and consequently, decreed the suit. Both the courts are agreed that all other requirements necessary to attract S.4A(1)(a) are obtained in this case and there is no dispute about that finding before me. Both the courts also, repelling the 1st defendant's contention that be is a tenant, held that the above said Otti transaction and subsequent Otti transactions in respect of the suit property in favour of his predecessor-in-interest are mortgages.

(2.) S.4A reads:

(3.) Broadly speaking mortgages of immovable property fall into two classes; (i) possessory-mortgages, i. e. mortgages with possession of land; and (ii) non possessory mortgages, i. e. mortgages without possession of land. Perhaps it is a bit confusing to call a mortgagee in possession of land under a possessory-mortgage as a 'mortgagee with possession of land' which is the expression used in S.4A(1). However, it is in that sense that that expression is employed there. It means: a mortgagee of land who is in possession of it under a mortgage whereunder the mortgagee is entitled to delivery of possession of the mortgaged land and has obtained possession thereof or shortly said: a mortgagee of land in possession of it under a mortgage with possession thereof. Such a 'mortgagee with possession of land' is a deemed tenant under S.4A provided the other requirements stated therein are satisfied. However, if what is mortgaged and given delivery of to the mortgagee is 'land principally planted with rubber, coffee, tea or cardamom', that 'mortgagee with possession of land' is outside the protection of S.4A and shall not be deemed to be a tenant. This is the plain meaning of S.4A(1).