PATHUKUTTY UMMA Vs. KORAVALAPPIL PATHUMMAYI UMMA

JUDGEMENT

(1.) An interpretation in the practical application of Explanation.3 to S.2(25) of Act 1 of 1964 arises for determination in this second appeal by the plaintiff in a suit for redemption and recovery of possession. The brief facts found by the courts below and thus binding on this court are these.

(2.) There is a small building in the plaint property. This was in the possession of the predecessor in interest of the defendants for over 50 years when Appunni, the original owner granted the lease to the mother of the sixth defendant in 1936. It was a building satisfying the definition of a 'hut' in the Kerala Land Reforms Act, for, the cost of construction did not exceed Rs. 750/- and the rent that would have realised then did not exceed Rs. 3/- per month as well. While this lease of a hut, as it is now understood, was subsisting, the plaintiff, the owner, took an advance of Rs. 1500/- from the lessees and created a mortgage over the plaint schedule property including the hut already leased. The mortgage deed is Ext. A1 dated 1-8-1960. In 1973, the plaintiff filed the suit for redemption,

(3.) True, the plaintiff is entitled to redeem the mortgage and a decree has been granted for redemption also. But, on redemption, can the plaintiff obtain possession of the entire property mortgaged or is he compelled to allow the defendants to remain in occupation of the hut and treat him as a kudikidappukaran under Act I of 1964 This question can be answered only with reference to Explanation.3 to S.2(25) of Act I of 1964 which reads thus: