AVUTHA AMMAL SELVI AMMAL Vs. JOSEPH GOMEZ

JUDGEMENT

(1.) In this appeal by the plaintiff from the concurrent decrees of the courts below dismissing a suit for redemption of the plaint property the main contention raised is that S.4A of the Kerala Land Reforms Act, 1963, was wrongly applied by the courts below in dismissing the suit. The property scheduled to the plaint, only 13 cents in extent and the building thereon, formed one item of a mortgage dated 6-8-1048 which comprised several items totalling nearly 2 acres in extent. The suit however was for redeeming only one item of the properties included in the mortgage. This item had been sub mortgaged on 13-11-1963 (document not produced) by the first respondent, who became entitled to the mortgage rights, in favour of the second defendant in the suit. In this sub mortgage it was stated that the mortgagor would retain the building in the property as well as one coconut tree and the rest will be enjoyed by the second defendant sub mortgagee.

(2.) Two contentions have been raised by the appellant before us. The first was that the property comprised in the mortgage as well as that scheduled to the plaint was situate inside the city corporation limits of Trivandrum and therefore the Kerala Land Reforms Act, 1963 would not apply to such land, as the intention of the legislature in enacting the above Act as discernible from the provisions thereof was that the Act must apply only to agricultural land. Secondly it was contended that, in any view of the matter, S.4A of the above Act has not been satisfied.

(3.) Regarding the first point we have already held in 1976 KLT 341 that it is impossible to read the Act on its terms as applicable only to agricultural lands. If the Act comprised other lands as well, i.e. lands other than agricultural lands, whether it would have the protection of Art.31A and whether the Act could fairly be said to be for the purpose of agrarian reforms, we held, did not arise in view of the inclusion of the Act in the Ninth Schedule to the Constitution. In view of the decision in 1976 KLT 341 we negative the first contention raised by the appellant.