RAGHAVAN NAICKEN Vs. AYYAPPANKUTTY

JUDGEMENT

(1.) The question for decision is whether a usufructuary mortgagee, who has put up a building in the mortgaged property and is residing there, is entitled to fixity of tenure under S.21 of the Malabar Tenancy Act. The learned Munsiff held that the plaintiff could redeem the mortgage but not recover possession as the mortgagee has to be deemed a tenant of a kudiyiruppu. On appeal, the Subordinate Judge held that the mortgagee was bound to surrender possession This court, in Second Appeal No. 308 of 1957, upheld the view of the Trial Court. This appeal has been preferred by the plaintiff from the decision in the Second Appeal.

(2.) The concurrent finding that the defendants are in possession under the usufructuary mortgage Ext. A 1 dated 23-10-1934 and not the earlier lease was not objected to by the respondents. So the only question is whether the defendants can claim fixity of tenure under S.21 of the Malabar Tenancy Act, which provides:

(3.) The decision under appeal is based on the finding that there is no distinction between the tenant of a kudiyiruppu and holder of a kudiyiruppu and this is based on the definitions of the words kudiyiruppu, tenant and holding. The definitions are extracted: