MADHAVAN PILLAI Vs. ARULAPPAN NADAR

JUDGEMENT

(1.) The plaintiff in a suit for redemption is the appellant. The question that has been agitated before this Court is whether S.4A(1) (a) of Act 1 of 1964 as amended would apply in the case. The suit was instituted for redemption of a mortgage evidenced by Ext Al dated 16-7-1122. The respondents had been in possession of the property since the date of Ext.B3 lease deed dated 10-2-1094. Ext.B3 mortgage was taken by him in 1094. That mortgage was released under Ext.A3 in 1119 and on the same day Ext.B2 mortgage was executed. On execution of Ext. Al the mortgagee continues to be in possession. On the basis of this transaction the 1st respondent has claimed that he is a deemed tenant falling under S.4A(1)(a) of the Act. That claim was upheld by the lower appellate court.

(2.) The learned counsel for the appellant vehemently contended that the requirements of sub-s.(1)(a) of S.4A are not satisfied and the respondent cannot therefore be deemed a tenant falling therein. The contention taken up is that the respondent cannot be deemed to have been in continuous possession for 50 years as mortgagee since the mortgage of 1094 had been released under Ext.A3 in 1119 and a fresh mortgage has been executed in favour of the respondent. He sought reliance on the Full Bench decision of this Court in Kali Karthiyayani v. Pappu ( 1980 KLT 541 ) and also referred to Samuel v. Abraham ( 1975 KLT 372 ) and Prithi Nath v. Suraj Ahir ( AIR 1963 SC 1041 ) in support of his contentions. The decision in Parameswaran v. Krishnan ( 1980 KLT 280 ) which has been relied on by the lower court was also sought to be distinguished.

(3.) Under S.4A(1)(a) of the Act the mortgagee with possession of land shall be deemed to be a tenant if the mortgagee was holding the land comprised in the mortgage for a continuous period of not less than 50 years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. One of the essential requirements of this section is that the mortgagee should have been in actual possession under a subsisting mortgage as on 1-1-1970. He has also to satisfy the requirement of continuous possession for not less than 50 years in the capacity as mortgagee. This section does not state that the possession should have been under the same mortgage for the entire period. What is required is only possession in the capacity of mortgagee without interruption. The Act itself has been intended for the benefit of persons in continuous possession of land. The section has necessarily to be interpreted liberally in order that the rights of such parties are not defeated. If there had been no interruption in the actual possession of the person holding the land as mortgagee during the period of 50 years and if he continued to be in possession as mortgagee as on 1-1-1970 such a person would squarely fall within the purview of this clause. This position has been clearly stated by the Division Bench in the decision in Parameswaran v. Krishnan (1980 KLT 280). The Court said:-