NARAYANA PILLAI Vs. LAKSHMI AMMA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for redemption of immovable property in the possession of the defendant as mortgagee. The Trial Court decreed the suit on 12-8-1965. There was an appeal by the defendant; and it was dismissed on 12-1-1967. On 20-7-1967, the decree holder filed an execution petition for getting possession of the property from the defendant with mesne profits, on deposit of the mortgage amount and value of improvements. The Kerala Stay of Eviction Proceedings Act 9 of 1967, passed by the Kerala Legislature, came into force on 30-7-1967. This Act shall cease to have effect on 31-12-1968. S.4 of the Act gave some protection to tenants and Kudikidappukars from eviction. It reads as follows: -

(2.) It was not in dispute in the execution court that a mortgagee with possession of immovable property would fall within the ambit of S.4A of the Land Reforms Act only if he satisfies all the four conditions mentioned therein. The execution court took evidence regarding the market value of the property at the time of the mortgage, and it held that the mortgage money was not less than forty per cent of the said market value Accordingly, it dismissed the appellant's objection on the ground that he did not satisfy clause (b) of S.4A(1). He filed an appeal in the District Court, Kottayam. In that court also, it was not disputed that all the four conditions mentioned in S.4A(1) should be satisfied for getting the benefit of that provision. The learned Additional District Judge held that the appellant failed to show that the property was waste land at the time of the mortgage; and he also affirmed the finding of the execution court that the mortgage amount was not less than forty per cent of the market value of the property at the time of the mortgage. In the result, he dismissed the appeal. The appellant therefore filed a second appeal to this Court; and he contended that the four conditions mentioned in S.4A(1) ate not cumulative, and that a person satisfying any one of the said conditions would be entitled to the benefit of S.4A. Obviously, he would satisfy the requirements of clauses (c) and (d) of S.4A(1); and he therefore, claimed that the decree for redemption was not executable against him. Our learned brother, Raghavan J. rejected the above contention, and dismissed the Second Appeal. The appellant filed the present appeal before a Division Bench of this Court.

(3.) The question arising for decision in this appeal first came for decision before Raman Nayar, J. in Mohammedkutty v. Gopala Panicker 1968 KLT 74 . His Lordship felt no doubt that the conditions in clauses (a) to (d) of S.4A(1) have to be cumulatively satisfied for a person to claim the benefit thereof. This question was again raised before Madhavan Nair, J. in Narayanan Asari Raghavan Asari v. Velayudhan Nair Krishnan Nair 1968 KLT 11 . There is an elaborate discussion of this question in this case, though the decision of Raman Nayar, J. does not appear to have been brought to the notice of the learned Judge. The whole argument in support of the contention that clauses (a) to (d) in S.4A(1) of the Land Reforms Act are disjunctive is based on the absence of the conjunctive word "and" between clauses (c) and (d). The section has got a heading which shows that it deals with certain mortgagees of waste lands. But it was contended that it was not open to construe the section in the light of its heading. Madhavan Nair, J. rejected this contention, and referred to the decision of the Supreme Court in Bhinka v. Charan Singh AIR 1959 SC 960 in support of his view. In that case, the Supreme Court quoted with approval the following statement of law from Maxwell on Interpretation of Statutes 10th Edition page 50.