VARGHESE SAMUEL Vs. VERKEY ABRAHAM

JUDGEMENT

(1.) These two second appeals are filed by the decree holder in a decree for redemption of two mortgages. Item 1 of the decree schedule in which item 2 building stands is the subject of a mortgage of the year 1053 M. E. Several charges were created for subsequent advances made to the owner of the property. Item 3 is the subject of another mortgage of the year 1088. A single suit for redemption was filed to redeem these mortgages. In the decree provision is made for redemption of items 1 and 2 on payment of a specified sum. Similarly, a separate provision is made for redemption of item 3 on payment of a specified sum. There is also a provision in the decree for realisation of mesne profits from the defendants in possession from the date the mortgage amount is deposited and notice given. The decree is dated 21 7 1958. When the decree holder applied for execution in 1968 the respondents resisted it on the ground that they are entitled to fixity of tenure under Act 1 of 1964 as amended till then. The executing court considered the nature of the transactions referred to earlier, found that the transaction under which item 1 was given possession is a tenancy coming within the scope of Act 1 of 1964 and that the transaction under which item 3 was given possession is not a tenancy coming under the provisions of the Act. Consequently, recovery of items 1 and 2 was refused and the execution was allowed to be proceeded with in respect of item 3. This order was passed on 2 8 1969. Thereafter, the decree holder deposited the mortgage amount and value of improvements decreed to the defendants for item 3 on 18-9-1969 and notice of deposit was also given to the defendants. Notice was served on 6 10 1969. The 1st defendant took time form the executing court and filed an appeal against the order of the executing court allowing recovery of possession of item 3 and obtained a stay of the proceedings. The decree holder also filed an appeal against the order of the executing court refusing his prayer for recovery of items 1 and 2. Pending these appeals Act 1 of 1964 was amended by Act 35 of 1969. The latter Act incorporated a new provision as S.4A by which certain mortgagees with possession were treated as deemed tenants entitled to fixity of tenure under the Act. Subsequently the lower appellate court heard the appeals and disposed of them by a common judgment. The appeal filed by the decree holder was dismissed and the other appeal was allowed giving protection of S.4A to the defendants. The two second appeals are filed by the decree holder in these circumstances.

(2.) S.A. No. 768/71 which relates to items 1 and 2 has only to be dismissed in view of the fact that the defendants satisfy all the conditions mentioned in S.4A to treat them as deemed tenants of these items. But, the position is different with respect to item 3. As mentioned above, the decree holder deposited the mortgage amount and value of improvements decreed to the defendants in respect of item 3 in September, 1969, and notice of deposit was also given to the defendants before Act 35 of 1969 came into force on 1-1-1970. S.4A gives protection to mortgagees with possession of certain lands by treating them as deemed tenants from 1-1-1970. Till that date the jural relationship between the mortgagor and the mortgagee as per the Transfer of Property Act and the contract remained unaltered. A tenancy is superimposed on a mortgagee from that date. The effect of S.4A was considered by a Full Bench of this Court in Muhammad v. Maya Devi ( 1971 KLT 284 ). The following passage in page 287 declares the effect of S.4A on a mortgagee thus:-

(3.) The Respondents' counsel referred to the Full Bench decision of this Court in Ouseph Lonan v. Kochunarayana Pisharody ( 1971 KLT 155 ) and also the decisions approved in that decision and contented that a quondam mortgagee is also entitled to the benefit of S.4A. In the Full Bench decision the question was whether a quondam tenant will get the benefit of fixity of tenure under the Act. Their Lordships held that he is entitled to because his possession originated in a tenancy. Here the scope of S.4A is only to make a mortgagee in possession a tenant from 1-1-1970. Till that date the transaction is only a mortgage and that mortgage is not from its inception made a tenancy. That, according to me, takes the case out of the principle laid down in the above Full Bench case. The non obstante clause in S.4A also will not help the Respondents. That clause does not dispense with the requirement that the person claiming the benefit of the section should be a mortgagee on 1-1-1970. The non obstante clause has only the effect of removing all the obstacles against the benefit conferred by the Section on a person who is still a mortgagee on 1-1-1970 and satisfies the other conditions mentioned in the Section. If he is no longer a mortgagee the clause will not treat him as a mortgagee. In the result, I hold that in respect of item 3 the defendants are not entitled to claim the protection of S.4A and 13 of Act 1 of 1964.