A NARAYANA RAO Vs. LAXMI AMMAFB

JUDGEMENT

(1.) Three proceedings : a) O.P. 9632 of 1983-D with C.M.P. 29571 of 1983, b) Second Appeal 218 of 1983 with C.M.P. 5818 of 1983 and c) C.R.P. 283 of 1984-B, are placed before us in pursuance of a referring order dated 1/11/1991 (Coram: Kalliath and Manoharan, JJ.) doubting the correctness of the decision reported in 1974 Ker LT 879 (Moidu v. Mammunhi Beary) holding that the compensation for improvements is certainly not part of the "mortgage money" as defined in the second paragraph of S. 58(d) of the Transfer of Property Act, as such payment of compensation is not secured by the deed and there is only a promise to pay it along with the mortgage money. Referring Court has taken the view for our consideration that payment of compensation for improvements at the time of redemption will not change the character of the transaction being a usufructuary mortgage as such payment is an implicit term of usufructuary mortgage. Factual Matrix

(2.) Subject-matter and parties in O.P. 9632 of 1983-D and Second Appeal 218 of 1983 - above items (a) and (b) are same.

(3.) Properties belonging to one Subraya Shanbhogue, under a Possessory Mortgage dated 3/10/1923 for Rs. 12,500/- came into possession of Sadashiva Shanbhogue and Keshava Shanbhogue. The document is "Illidarwar" deed. Some of the properties were thereafter leased in 1951 in favour of D. Rama Bhat - husband of Laxmi Amma - respondent No. 1 in (a) and (b). There was partition between two mortgagees. A. Narayana Rao - Petitioner and appellant before us on 28/02/1971 purchased equity rights of redemption and in February 1972 thereafter for Rs. 35,000/- allegedly obtained possession of mortgaged properties as the mortgage was redeemed and extinguished. As the properties were in possession physically of Laxmi Amma the said Narayana Rao filed Suit No. 136 of 1972 in the Munsiff Court at Kasaragod for possession and mesne profits against Laxmi Amma. It was contended that Laxmi Amma and others were only lessees under the possessory mortgage and not entitled to fixity of tenure or other benefits under the Kerala Land Reforms Act, being specifically excluded from the operation of Chapter II of the Act in view of S. 3(5) of the said Act. Laxmi Amma contended that the original mortgagees under the Illidarwar were themselves "Deemed Tenants" and therefore she was entitled to tenancy right under the Act.