SAROJINI AMMA Vs. SUMATHY AMMA

JUDGEMENT

(1.) The appeal is against the judgment of a learned Judge of this court in S. A. No. 79 of 1974 The question that arose for consideration was whether the defendant who was the successful appellant in the Second Appeal can be regarded as a 'tenant' entitled to fixity of tenure under the Land Reforms Act. The suit was for redemption of a sub mortgage Ext. A-1 dated 22nd September 1956 in respect of nearly 55 cents of paddy field. The two plaint items and others had been mortgaged in the year 1093 (not exhibited). A superior mortgage was granted in 1118 (not exhibited) to redeem the mortgage of 1093. O. S. No. 501 of 1119, Munsiff's Court, Nedumangad was filed by the superior mortgagee for redemption and was decreed (vide Ext. B-1 dated 21st December 1944). Instead of executing the decree, the superior mortgagee obtained a release of the rights of the mortgagee of 1093, and then, in his turn, surrendered his mortgage right to the jenmi under Ext. A-2 dated 16th May 1960. Before doing so, he had executed the plaint sub mortgagee Ext. A-1 dated 22nd September 1956 in respect of the plaint items There was a provision in Ext. A-1 that a proportionate part of the michavaram payable by the mortgagee to the jenmi may be paid directly by the sub mortgagee to the jenmi. The jenmi executed Ext. A-3 in 1968 to the plaintiff and others in respect of the plaint property. The rights under Ext. A-3 devolved on the plaintiff and accordingly the suit for redemption was brought. The Trial Court and the lower appellate court, negatived the defendant's plea for fixity of tenure; but the learned single Judge in Second Appeal, reversed the decrees of the courts below and held that he is entitled to continue in possession by reason of the exception enacted by sub clause (iv) to S.3(v) of the Land Reforms Act. The effect of the exception is that although generally a lessee under a mortgagee is disqualified from claiming fixity, that disqualification is removed it the mortgagee or his successor-in-interest has acquired or acquires the equity of redemption.

(2.) The learned Judge also held that in view of the provision for payment of proportionate michavaram to the jenmi under Ext. A-1 the defendant would be a tenant.

(3.) We are unable to see how the requirements of exception (iv) to S.3(v) of the Act stand made out There was no acquisition by the mortgagee or bis successor in interest of the equity of redemption Counsel for the respondent fairly stated before us that unless he established that he was a 'tenant' under S.2(57) of the Act he would not be a tenant. It was argued that he would satisfy the definition of a 'tenant', as a person 'who has paid or agreed to pay rent for his being allowed to possess and enjoy the land'. The definition of the term 'rent' under S.2(49) includes 'michavaram'. The term 'michavaram' is defined in S.2(36). By reason of this definition, it was claimed, that the defendant could regard himself as a tenant within the body of the definition ia S.2(57) of the Act. The definition of 'michavaram' in S.2(36) reads: