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PETITIONER:

MANCHERI PUTHUSSERI AHMED & ORS.

Vs.

RESPONDENT:

KUTHIRAVATTAM ESTATE RECEIVER

DATE OF JUDGMENT: 11/09/1996

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

SINGH N.P. (J)

CITATION:

JT 1996 (8) 107

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

Both these appeals by special leave challenge judgment

of the High Court of Kerala at Ernakulam rendered in two

Revision Applications moved by two different sets of

defendants/judgment-debtors who were parties to Original

Civil Suit No.22 of 1946 of the Sub Court, Manjeri and who

were sought to be evicted from the suit property by the

decree-holder in one and the same Execution Petition No.543

of 1962. Two separate Revision Applications came to be filed

in the High Court raising identical contentions by these two

sats of contesting defendants because they had lost in two

separate appeals filed by them against the Executing Court's

order before the Sub-Court at Manjeri. In both these

revision applications the appellants raised identical

contentions which were repelled by the High Court and that

is how they are before this Court in these two appeals. As

identical question arises for our consideration the appeals

were heard together and are being disposed of by this common

judgment.

A short point arises for our consideration in these

appeals. The appellants contend that they are entitled to

the benefit of Section 4A of the Kerala Land Reforms Act,

Act I of 1964 as amended by Act 35 of 1969 (hereinafter

referred to as 'the Act'). The said provision seeks to

confer the status of deemed tenancy on mortgagees in

possession under circumstances mentioned in the said

Section. The appellants who were erstwhile mortgagees in

possession of the suit land contend that despite the decree

for redemption passed by the Civil Court had become final

against them, even during execution proceedings they are

entitled to get the benefit of Section 4A of the Act.

Therefore, their possession should not be disturbed. The

Executing Court as well as the Appellate Court and also the

Revisional Court have negatived this common contention.

In order to appreciate the grievance of the

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appellants/judgment-debtors centering round the aforesaid

provision a few relevant facts may be noted at the outset.

The suit land was mortgaged by predecessor-in-interest

of the respondent decree-holder with the predecessor-in-

interest of the appellants. The predecessor-in-interest of

the respondent filed Original Suit No.212 of 1946 in the

Munsif's Court at Manjeri for redemption of the suit

usefructuary mortgage in favour of the appellants and other

defendants. In all there were 83 defendants who represented

the mortgagees in possession. Various defences raised by the

defendants were negatived and ultimately the Trial Court

decreed the suit except as regards a part of the property in

possession of 81st defendant. The dissatisfied plaintiff

filed an appeal being A.S. No.164 of 1989 before the

Appellate Court against the 81st defendant against whom the

suit was dismissed by the Trial Court. The remaining 82

defendants do not appear to have challenged the said decree

of the Trial Court against them. The Appellate Court by its

order dated 12th March 1956 allowed the appeal of the

plaintiff against 81st defendant and held that property held

by 81st defendant was also included in the mortgage deed

Ext.A1 dated 15.12.1896. 81st defendant carried the matter

in Civil Appeal before the High Court being Second Appeal

163 of 1956 which also came to be dismissed on 10th June

1960. Thus by that date the decree for redemption of the

suit mortgage against all the 83 defendants became final,

Thereafter the respondent plaintiff-mortgagor filed

Execution Petition No.543 of 1962 for recovery of possession

of the property from the respective judgment debtors. During

the pendency of the execution proceedings Kerala Land

Reforms Act came into force from 1st April 1964. The Act

created certain deemed tenancies and granted fixity of

tenure to those deemed tenants. This Act was amended by Act

35 of 1969 by Which Section 4A, with which we are concerned,

was brought on the Statute Book with effect from 1.1.1970.

The appellants contended before the Executing Court that

they were entitled to the benefit of Section 4A and,

therefore, they could not be evicted from the suit property

in their possession as they had become deemed

tenants of the lands occupied by them. The Executing Court,

as noted above, rejected these contentions and that decision

which has been upheld by Appellate Court and the Revisional

Court is the subject-matter of challenge before us, Section

4A on which strong reliance is placed by learned senior

counsel for appellants] reads as under :

"4A. Certain mortgagees and lessees

of mortgagees to be deemed tenants

:-

1. Notwithstanding anything to the

contrary contained in any law or in

any contract, custom or usage, or

in any judgment, decree or order of

court, a mortgagee with possession

of land, other than land

principally planted with rubber,

coffee, tea or cardamom, or the

lessee of a mortgagee of such land

shall be deemed to be tenant if-

(a) the mortgagee or lessee was

holding the land comprised in the

mortgage for a continuous period of

not less than fifty years

immediately preceding the

commencement of the kerala Land

Reforms (Amendment) Act, 1969; or

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(b) the mortgagee or lessee has

constructed a building for his own

residence in the land comprised in

the mortgage and he was occupying

such building for such purpose for

a continuous period of not less

than twenty years immediately

preceding such commencement;

Provided that a mortgagee or lessee

falling under this clause shall not

be deened to be a tenant if he, or,

where he is a member of family,

such family was holding any other

land exceeding two acres in extent

on the date of publication of the

Kerala Land Reforms (Amendment)

Bill, 1968, in the Gazette; or

(c) the land comprised in the

mortgage was waste land at the time

of mortgage or land to which the

Madras Preservation of Private

Forests Act 1949, would have

applied if that Act had been in

force at the time of mortgage, and

(i) the mortgagee or lessee was

holding such land for a continuous

period of not less than thirty

years immediately preceding the

commencement of the Kerala Land

Reforms (Amendment) Act, 1969; and

(ii) the mortgagee or lessee has

effected substantial improvements

on such land before such

commencement.

Explanation I.- For the purposes of

this sub-section, in computing the

period of continuous possession or

occupation by a lessee, the period

during which the mortgagee was in

possession or occupation, as the

case may be shall alsobe taken into

account.

Explanation II.- In computing the

period of fifty years referred to

in clause (a) or the period of

thirty years referred to in clause

(c), the period during which the

predecessor-in-interest or

predecessors-in-interest of the

mortgagee or lessee was or were

holding the property shall also be

taken into account.

Explanation III.- For the purposes

of clause (b),-

(1) "mortgagee" or "lessee" shall

include a predecessor-in-interest

of the mortgagee or lessee, as the

case may be:

(11) "building" includes a hut,

Explanation IV. - In computing the

period of twenty years referred to

in clause (b), occupation of the

building by any member of the

family of the mortgagee or lessee

for residential purpose shall be

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deemed to be occupation by the

mortgagee or lessee, as the case

may be, for such purpose.

Explanation V.- In calculating the

extent of land held by a family for

the purposes of clause (b), all the

lands held individually by the

members of the family or jointly by

some or all of the members of such

family shall be deemed to be held

by the family,

Explanation VI - for the purposes

of sub-clause (ii) of clause (c),

(i) Improvements made by the

mortgagee shall be deemed to be

lmprovements madeby the lessee;

(ii) "mortgagee" or "lessee" shall

lnclude a predecessor-in-interest

of the mortgagee or lessee, as the

case may be

Explanation VII, - for the purposes

of clause (c)-

(i) improvements shall be deemed

to be substantial improvements if

the value thereof on the date of

commencement of the Kerala Land

Reforms (Amendment) Act 1969, is

not less than twenty five per cent

of the market value of the land on

that date;

(ii) a land shall be deemed to be

waste land notwithstanding the

existence of scattered trees

thereon.

(2) Nothing contained in sub-

section (1) shall apply to a lessee

if the lease was granted on or

after the commencement of Act."

A mere look at the said provision shows that the said

Section will operate notwithsfanding any judgment, decree or

order of any court against the concerned morgtagee in

possession if the following conditions are satisfied :

1. He must be a mortgagee in possession of the land on

the date of the coming into force of that Section which is

not retrospective in nature meaning thereby the person who

wants the benefit of Section 4A must be a mortgagee in

possession of land on 1.1.1970. As we are not concerned with

other types of excluded lands we need not refer to them.

2. Such a morgtagee in possession on 1.1.1970 must satisfy

the further condition that he was holding the land comprised

in the mortgage for a continuous period in the period of not

less than fifty years immediately preceding the commencement

of the Kerala Land Reforms (Amendment) Act, 1969 meaning

thereby for a period of not less than fifty years

immediately before 1.1.1970. As we are not concerned with

clause (b) and (c) in the present proceedings we need not

dilate thereon.

When we turn to the facts of the present cases. it

becomes clear that none of the aforesaid two conditions has

been satisfied by the appellants. It is true that the

appellants were mortgagees in possession through their

predecessor-in-interest since 15.12.1896 and can get benefit

of Explanation II and, therefore, years back they had

completed more than fifty years of possession as mortgagees.

It is also true that decree for redemption of the suit

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mortgage against them had become final and during execution

proceedings Section 4A had come into force. However there is

a further fact which stares in the face of the appellants.

In the execution proceedings themselves the respondent

decreeholder mortgagor deposited the mortgage amount and

value of improvements on 14th March 1969 and consequently

the Executing Court ordered delivery of property on such

payment to the decree-holder. Once that happened the status

of the appellants as erstwhile mortgagees in possession

underwent a metamorphosis and thereafter they continued to

remain in possession only as judgment debtors illegally

sticking to the land. The relationship of mortgagor and

mortgagee between the parties got snapped. It is now well

settled that despite the decree for redemption which might

have been passed by a competent court and which might have

become final till the mortgage amount is deposited by the

mortgagor the relationship of mortgagor and mortgagee does

not come to an end. Conversely once the amount is deposited

by the mortgagor decree-holder even during the execution

proceedings the relationship between the parties as

mortgagor and mortgagee ceases and thereafter till actual

delivery of possession the erstwhile mortgagee in possession

remains merely as judgmentdebtor in illegal possession. In

the case of Prithi Nath Singh and ors. v. Suraj Ahir and

ors. AIR 1963 SC 1041 it has been held by Raghubar Dayal,

J., speaking for the two member Bench of this Court that

when the mortgage money is paid by the mortgagor to the

mortgagee, there does not remain any debt due from the

mortgagor to the mortgagee, and therefore, the mortgage can

no longer continue after the mortgage money has been paid.

Further, the definition of usufructuary mortgage itself

leads to the conclusion that the authority given to the

mortgagee to remain in possession of the mortgaged property

ceases when the mortgage money has been paid up. When the

mortgage money has been paid up, no question of

appropriating the rents and profits accruing from the

property towards interest or mortgage money can arise. If

the mortgage money has been received by the mortgagee and

thereafter he refuses to perform the acts which he is bound

to do under 5.60, the mortgagor can enforce his right to get

back the mortgage document, the possession of the mortgaged

property and the reconveyance of that property through

court.

The same view was reiterated by a later decision of

this Court in the case of Parameswaran Govindan v. Krishnan

Bhaskaran & Ors. 1993 Supp.(1) SCC 572. K. Ramaswamy, J.,

speaking for the two member Bench of this Court while

considering the scope and ambit of Section 4A of this very

Act held that from the date of deposit of the decretal

amount the possession of the morgtagee respondent would be

unlawful. Section 4-A of the Land Reforms Act would not

denude the right to re-possession of the mortgagor under

Section 60 of the Transfer of Property Act without assent of

the President of lndia. Section 4-A of the Land Reforms Act

which engrafts a non-obstante clause is of little assistance

to the respondent, as he did not complete 50 years of

continuous possession on the date when the Amending Act 35

of 1969 came into force. It was further observed that a

conjoint reading of Section 60, Section 76(h) read with

Section 83 of Transfer of Property Act would amplify that on

deposit of the mortgage amount, the contractual relationship

of mortgagor and mortgagee ceases. There does not remain any

debt from the mortgagor to the mortgagee and, therefore, the

mortgage can no longer continue after the mortgage money is

paid. On the payment of mortgage money or deposit thereof in

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the court by the mortgagor, the mortgage comes to an end and

the right of the mortgagee to remain in possession is also

coterminous. Thereafter, the mortgagee continues in unlawful

possession.

In view of this settled legal position, therefore it

must be held that the appellants' status as mortgagees in

possession came to an end on 14th march 1969 when the

mortgage money was deposited by the respondent decree-holder

in execution proceedings. Thereafter appellants' possession

became unlawful and they were liable to be forthwith evicted

in execution of the decree for redemption which become

final. Consequently it must be held that the very first

condition for applicability of Section 4A of the Act was not

satisfied by the appellants. To recapitulate the first

condition for applicability of Section 4A is that the

concerned person who seeks the benefit of Section 4A for

getting status of deemed tenant must be in possession of the

concerned land as a mortgagee on 1.1,1970 when Section 4A

came into force. Almost 9 months prior to 1.1,1970 the

appellants had ceased to be mortgagees in possession and

were only in unlawful possession of the decretal land. Thus

the very first condition for applicability of Section 4A was

not fulfilled by the appellants. Once this first condition

was not satisfied, Section 4A went out of picture for the

appellants. Even that apart the second condition was also

not satisfied for applicability of Section 4A in their

favour. They cannot get the benefit of Section 4A unless

even the second condition is satisfied namely that they must

be in continuous possession as mortgagees in possession for

50 years and more, immediately preceding the commencement of

Section 4A meaning thereby that prior to 1.1.1970 for

continuous 50 years backwards without a break they must have

continued to remain in possession as mortgagees in

possession. The words '50 years immediately preceding the

commencement of the Amendment Act at 1969' are very

significant. In order that continuous period of fifty years

can start immediately preceding the coming into force of

Section 4A it must start from a day earlier, i.e., from 31st

December 1969 backwards upto a period of fifty years meaning

thereby stretching back till 31st December 1919.

Thus even though the mortgagee in possession may be

holding the possession of the land as mortgagee on 1.1.1970

he must further show that he had remained as a mortgagee in

possession by himself or through his predecessor in interest

continuously at least from 31st December 1919 till 31st

December 1969 without any break. On the facts of the present

case it cannot be disputed and it is not in dispute that the

aapellants were not in possession as mortgagees in

possession for this whole period but their status as

mortgagees in possession had come to an end and the

relationship of mortgagor and mortgagee had got snapped

between the parties from 14th March 1969 onwards. Thus for a

period of almost 9 months prior to 1.1.1970 the appellants

were not in possession as mortgagees. On the contrary from

14th March 1969 onwards their possession of the suit land

was unlawful. Thus even the second condition is not

satisfied for applicability of Section 4A.

Having realised this difficulty in the way of the

appellants learned senior counsel for the appellants

submitted that there is a non-obstante clause for

applicability of Section 4A and consequently despite there

being a judgment, decree or order against them which has

become final they are entitled to get the benefit of this

Section. We fail to appreciate how the said non-obstante

clause can be of any assistance to the appellants on the

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facts of the present cases. All that the non-obstante clause

means to convey is to the effect that even though a

mortgagee in possession might have suffered a judgment or

decree against him which might have become final so long as

his status as mortgagee in possession has survived even

pending execution proceedings and by that time if on

1.1.1970 the Section gets attracted then such a mortgagee in

possession even though having an adverse judgment or decree

against him can get the benefit of Section 4A if the

relevant conditions of said Section are fulfilled by him and

in such an eventuality merely because such a mortgagee in

possession is covered by the sweep of any final judgment or

decree for redemption the same will not come in his way. On

the facts of the present cases, however, as we have seen,

not only the appellants were covered by a final decree for

redemption but they had lost the status of mortgagees in

possession almost 9 months prior to the coming into force of

Section 4A. Therefore, on the date on which the Section

operated they were no longer mortgagees in possession.

Consequently the non-obstante clause which would have

otherwise helped them if they had continued as mortgagees in

possession on 1.1.1970 does not avail the appellants on the

facts of the present cases. The learned senior counsel for

the appellants next contended that in any case the

appellants had remained in possession as mortgagees by

themselves and through their predecessors for more than

fifty years, that the mortgage was of 1896 and even by the

date the suit was filed, fifty years' period was over. That

may be so. However the requirement of the second condition,

as we have shown earlier, is that such a mortgagee in

possession who wants to avail of the benefit of Section 4A

must show that he continued in possession as mortgagee for

fifty years or more continuously at least from 31.12.1919

upto 31.12.1969 which was immediately preceding the

commencement of Section 4A with effect from 1.1.1970.

Learned senior counsel in this connection submitted that

words 'immediately preceding the commencement' may be given

more expanded meaning as this is a beneficial provision. It

is difficult to agree. In the first place the Section

creates a legal fiction. Therefore, the express words of the

Section have to be given their full meaning and play in

order to find out whether the legal fiction contemplated by

this express provision of the Statute has arisen or not in

the facts of the case; Rule of construction of provisions

creating legal fictions is well settled. In interpreting a

provision creating a legal fiction the Court is to ascertain

for what purpose the fiction is created, and after

ascertaining this, the Court is to assume all those facts

and consequences which are incidental or inevitable

corollaries to the giving effect to the fiction. But in so

construing the fiction it is not to be extended beyond the

purpose for which it is created or beyond the language of

the section by which it is created. It cannot also be

extended by importing another fiction. In this connection we

may profitably refer to two decisions of this Court. In the

case of Commissioner of Income Tax, Bombay City II v.

Shakunatala & AIR 1966 SC 719 a three-Judge Bench of this

Court speaking through S.K. Das,J., made the following

pertinent observation in paragraph 8 of the Report :

"The question here is one of

interpretation only and that

interpretation must be based on the

terms of the section. The fiction

enacted by the Legislature must be

restricted by theplain terms of the

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statute."

In another case reported in the same volume at page

870, namely, Commissioner of Income-tax (Central),

Calcutta v, Moon Mills Ltd. AIR 1966 SC 870 another three-

Judge Bench of this Court speaking through Subha Rao,J.,

observed in para 8 of the Report in connection with the

provision creating such legal fictions as under :

"The fiction is an indivisible one.

It cannot be enlarged by importing

another fiction.. "

In the present cases fiction created by Section 4A is

circumscribed by its express words. Before such a deemed

tenancy can arise it must be shown by the concerned

beneficiary of the said provision that he was a mortgagee in

possession for a continuous period of not less than fifty

years immediately preceding the commencement of the said

Section. The words 'immediately preceding the commencement'

must necessarily be given their ordinary and full meaning.

They necessarily point out the legislative intent that the

fiction is created only for covering such type of cases

where the mortgagee in possession not only exists on the

land as mortgagee on 1.1.1970 but, also continuously existed

as such for a period backward stretching upto at least 50

years in past from 31.12.1969 which was the day immediately

preceding such commencement Argument of learned senior

counsel was that if the words '50 years of continuous

possession as mortgagee at any time prior to the coming into

force of the amending Act' are read in the Section by

implication he would qualify for the benefit of Section 4A,

Such a contention would have stood the test if the Section

would have been worded differently namely, as follows :

"such mortgagee was in continuous

possession for a period of not less

than 50 years prior to the coming

into force of the Amending Act."

Such words are not found in the Section. In fact

learned senior counsel for the appellants wants us to read

the Section after omitting the word 'immediately ',

advisedly prefixed by the legislature to the word

'preceding'. Such an exercise is not permissible for the

Court, We have to keep in view that as per the Section the

50 years' period is circumscribed by further requirement

that such continuous period of occupation as mortgagee in

possession must exist without break or any hiatus till the

date of coming into force of the Act and must consist of at

least 50 years continuous occupation immediately prior to

the coming into force of Section 4A, as such mortgagee in

possession. However beneficial may be the scope and ambit of

the legal fiction created by the legislature while enacting

Section 4A such fiction can arise only when the express

language of the Section laying down the conditions precedent

for raising of such a fiction is complied with by the

concerned mortgagee in possession seeking the benefit of

such a deeming fiction. Such a fiction cannot be extended by

the Court on analogy or by addition or deleting words not

contemplated by the legislature.

As a result of the aforesaid discussion it must,

therefore be held that the appellants have failed to fulfil

both the conditions precedent for applicability of Section

4A and for getting the benefit of deemed fiction arising

therefrom. Consequently the High Court as well as the courts

below were perfectly justified in not extending the benefit

of Section 4A to the appellants. In the result these

appellants, fail and are dismissed. On the facts and

circumstances of the cases there will be no order as to

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costs.