Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4479 of 2007

MATHAI MATHAI ……APPELLANT

Vs.

JOSEPH MARY @ MARYKKUTTY JOSEPH & ORS. ……RESPONDENTS

J U D G M E N T

V.Gopala Gowda, J.

This appeal is directed against the impugned

judgment and order dated 1.7.2005 passed by the High

Court of Kerala at Ernakulam in Civil Revision

Petition No. 873 of 1997(C) allowing the Civil

Revision Petition and rejecting the O.A. No. 230 of

1981, urging various facts and legal contentions.

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2.Necessary relevant facts of the case are stated

hereunder:-

The appellant herein filed Original Application

No. 230 of 1981 before the Land Tribunal, Kottayam

claiming to be a deemed tenant under Section 4A of the

Kerala Land Reforms Act, 1963 (hereinafter referred to

as “the K.L.R. Act”) read with Kerala Land Reforms

Tenancy Rules (for short “the Tenancy Rules”) and

stating that his uncle had executed a mortgage deed in

the year 1909-1910 in favour of the appellant’s mother

late Smt. Aley as a collateral security for a sum of

7000 Chakram which was the dowry amount.

3.It is the case of the appellant that his mother

has been in possession of the land involved in the

case as a mortgagee from the date of execution of the

mortgage deed referred to supra and she has been in

continuous possession of the same for more than 50

years as on the date of the commencement of the K.L.R.

Act (substituted by Act 35 of 1969) immediately

preceding the commencement of the Kerala Land Reforms

(Amendment) Act, 1969 which was published in the

Kerala Gazette Extraordinary No. 295 dated 17.12.1969

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w.e.f. 1.1.1970. Therefore, he should be registered as

deemed tenant in respect of the land in question as it

has conferred a statutory right on him to purchase the

mortgaged land in toto to the extent of 2 acres 48

cents. In the said proceedings the father of the

appellant got impleaded and opposed the claim made by

the appellant and further denied that the mother of

the appellant had right as the mortgagee and was in

possession and holding the land as a deemed tenant for

the 50 years immediately preceding the amended

provisions of Section 4A of the K.L.R. Act, which

provision came into effect from 1.1.1970. Therefore,

he has contended that he is not entitled to be

registered as a deemed tenant and cannot obtain

purchase certificate of the land in question as per

Section 72B of the K.L.R. Act. Vide order dated

21.3.1994, the Land Tribunal, after recording the

finding of fact, held that the appellant is a deemed

tenant under Sections 4A of the K.L.R. Act and

therefore, he is entitled to get the purchase

certificate.

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4.Aggrieved by the said order, the first respondent

and others filed an appeal before the Appellate

Authority (Land Reforms) under Section 102 of the

K.L.R. Act questioning the correctness of the order

dated 21.3.1994 passed by the Land Tribunal, Kottayam,

on various factual and legal contentions. The

Appellate Authority has adverted to certain relevant

facts in respect of the previous proceedings in

relation to the same land initiated by the appellant

under Section 72 of the K.L.R. Act in O.A.

No. 531 of 1975, which was allowed by order dated

25.4.1978 which order was challenged by the first

respondent herein before the Land Reforms Appellate

Authority, Ernakulam as L.R.A.S. 534 of 1978 which

appeal came to be allowed and the case was remanded to

the Land Tribunal for reconsideration. In the said

proceedings the Revenue Inspector had filed his Report

dated 23.4.1992 as contemplated under Section 105A of

the K.L.R. Act. The same was marked as Exh.C1, after

examining Revenue Inspector in the proceedings. The

said report was not challenged by the first

respondent’s father and the same was accepted in toto

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by the Land Tribunal. It is further stated that the

objection of the father of the first respondent was

taken in the original application before the Land

Tribunal but he was not examined as a witness in

support of his claim as he died during the pendency of

the case. However, he was examined as a witness before

the Land Tribunal in the previous O.A. No. 531 of

1975. In his deposition he has clearly stated that the

possession and enjoyment of the disputed property was

by the appellant herein. The said deposition is marked

as Exh.A8 before the Land Tribunal.

5. The Appellate Authority after referring to the

registered mortgage deed which is marked as Exh.A1,

has recorded the finding of fact holding that the

property involved in the original application of the

appellant has been in his possession and enjoyment of

the appellant and he has effected improvements on it

and cultivated the property and that the first

respondent has no title or possession over the

property at any time. To prove the mortgage deed, A1

the appellant herein and independent witnesses were

examined on behalf of the appellant as A2 and A3 and

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documentary evidence produced were marked as Exhs.A1

to A9 in support of his claims. The said evidence has

been corroborated by the Revenue Inspector’s report

and the first respondent was examined and she did not

have direct knowledge of the property in dispute and

her evidence was not accepted by the authorities. It

is observed by them that the respondent’s evidence

does not carry any weight and reliance was placed upon

both oral and documentary evidence of the appellant

and the finding recorded by the appellate authority

holding that he is the deemed tenant and the order

passed by the Land Tribunal does not call for

interference as there is no merit in the appeal and

the order of the Land Tribunal was confirmed by

dismissing the appeal of the first respondent with no

cost by its order dated 9.4.1997. This order was

challenged by the first respondent before the High

Court of Kerala under Section 103 of the K.L.R. Act,

urging various legal contentions. The High Court

passed a cryptic order after adverting to certain

rival contentions and examined the correctness of the

same in the Revision Petition. The learned Judge of

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the High Court at para 3 of the impugned order has

recorded the finding of fact holding that the factum

of possession of the appellant cannot be disputed in

view of the concurrent finding of fact. However, he

has further held that mere possession of the disputed

land does not give right of tenancy of the same on the

basis of Exh.A1, the registered mortgage deed, which

is the hypothecation bond and held that no possession

of the disputed land was granted under the said

document. Hence, it is held that Section 4A of the

K.L.R. Act is not attracted to the fact situation of

the case on hand to enable the appellant to get

purchase certificate in respect of the disputed land

under Section 72B of the K.L.R. Act as it was

necessary to prove that he is a cultivating tenant

holding the property in possession as a mortgagee

which is absent in the present case. The learned Judge

of the High Court held that the concurrent finding of

fact by both the appellate authority as well as the

Land Tribunal that Exh. A1 is the deed of mortgage

under which the appellant is claiming possession of

the land in question as the mortgagee, is not

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factually and legally correct and accordingly has

allowed the Revision Petition of the first respondent

and rejected the Original Application No. 230 of 1981

filed by the appellant.

6. The correctness of the said order is under

challenge before this Court raising certain questions

of law. Mr. M.T. George, the learned counsel for the

appellant has contended that the High Court exceeded

its jurisdiction under Section 103 of K.L.R. Act in as

much as there is a failure to decide any question of

law and has rendered an erroneous decision on the

question of law framed by the appellate authority. He

further urged another legal contention that the High

Court was not justified in interfering with the orders

of the Land Tribunal and the Appellate Authority, both

on the factual and legal question which was not

agitated by the first respondent before the Land

Tribunal and the Appellate Authority. Further, the

High Court was not justified in reversing the orders

of the Land Tribunal as well as the Appellate

Authority, when it found that the appellant’s mother

was a mortgagee and it is further found by both the

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authorities as well as the High Court the fact that

the appellant’s mother and the appellant were in

possession of the property for the statutory period

prescribed under Section 4A of the K.L.R. Act. The

Land Tribunal and the Appellate Authority recorded the

finding on the contentious issue and held that the

appellant is the deemed tenant of the land in question

under Section 4A of the K.L.R. Act, which order has

been erroneously interfered with by the High Court in

exercise of its revisional jurisdiction. It was urged

on behalf of the appellant that the appellant is

entitled for the relief as he is the deemed tenant

under Section 4A of the K.L.R. Act when his deceased

mother was admittedly the mortgagee of the land in

question and he continued as such and both the fact

finding authorities have found them to be in

possession of the land in question for more than the

statutory period as provided under the above provision

of the Act. It was contended that the High Court in

exercise of its revisional jurisdiction should not

have interfered and annulled the orders of both the

Land Tribunal and the Appellate Authority and it has

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erroneously set aside the concurrent findings of fact

recorded by both the authorities vide the impugned

order passed in the Revision Petition. Therefore, he

submits that the impugned order is liable to be set

aside as it is not only erroneous but also suffers

from error in law. The appellant’s contention is that

the property was mortgaged as a collateral security

for the Stridhan amount given on behalf of the

appellant’s mother at the time of her marriage with

the father of both the appellant and the first

respondent and though the document does not contain

anything regarding delivery of possession of the

property to the deceased mother of the appellant in

the mortgage deed, nonetheless the appellant was put

in possession of the property in question on the date

of the mortgage itself and she continued to be in

possession with the same till her death and

thereafter, the appellant came into possession. The

appellant’s counsel has contended that the conclusion

of the High Court on the contentious issue is

unwarranted and not justified and that both the Land

Tribunal and the appellate authority have correctly

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held on facts that the appellant is the mortgagee and

has been in possession together with his mother for

more than 50 years as on the date the amended

provision has come into force, and therefore, they

have rightly held that he is a deemed tenant of the

land, and hence entitled to get the purchase

certificate in respect of the property in question. He

has further contended that all that the law requires

is that the tenure of the appellant as a mortgagee

must be for a period of not less than 50 years and

Section 4A does not demand that the mortgagee has to

be put in possession under the mortgage deed itself.

Therefore, the finding of the High Court in the

impugned order that ‘no possession of the land in

question was given under the document’ is an

unwarranted finding which is outside the scope of

revisional jurisdiction while examining the

correctness of the concurrent finding on the

contentious issue.

7. This appeal is strongly opposed by the first

respondent’s counsel who sought to justify the

correctness of the finding recorded by the High Court

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in its order in exercise of its revisional

jurisdiction after noticing the pleadings and

documentary evidence on record. The first respondent,

in her counter affidavit and written submissions has

stated that the appellant is bound to prove the fact

that he is the mortgagee and that the possession of

the property has come to him as the mortgagee and that

his deceased mother and the appellant have continued

in possession of the property in dispute for more than

50 years as on 1.1.1970, the date on which the K.L.R.

Act came into force to get the benefit of deemed

tenancy upon the land in question. It is contended by

the learned counsel that there is no recital in the

document of the mortgage deed and that Ex. A1, the

mortgage deed does not stipulate that the mortgagee is

put in possession by virtue of that document. There is

no express clause for delivery of possession of the

schedule property in favour of the mortgagee at the

time of registering the document nor impliedly or by

implication which binds the mortgagor to deliver the

possession of the mortgage property to the mortgagee.

The first respondent has further contended that as far

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as the mortgage deed is concerned, the brother of the

appellant’s father is the mortgagor and the claim can

only be made against him and his property but however,

the appellant has not claimed the right against him

but instead against the first respondent and their

father. The mortgagor was not impleaded as a party and

it is the contention of the first respondent that the

appellant is attempting to get the ownership of the

entire property. Further, both the Land Tribunal and

the Appellate Authority have failed to take into

consideration the relevant fact namely, that at the

time of the death of his mother, the appellant was a

minor and therefore, could not have acquired

possession over the property as claimed by him.

Therefore, they have not taken into consideration the

fact that after the death of the mortgagee, the mother

of the appellant, possession of the land came to the

father of the appellant and the first respondent and

therefore, the appellant is not entitled to claim

continuous possession of the same to get the benefit

under Section 4A of the K.L.R. Act, even assuming

without conceding that the appellant’s mother acquired

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a right under Exh.A1, the mortgage deed. Both the Land

Tribunal and the Appellate Authority should have

noticed the fact that the mortgagee-mother of the

appellant was not at all in possession of the property

but it was in the exclusive possession of his father.

As per family settlement of the year 1965, 94 cents of

property covered under Exh. A1 was allotted to the

first respondent. Again as per the sale deed of 1975,

1 acre 68 cents of land covered under Exh. A1 was

given to first respondent and ever since she is in

exclusive possession and enjoyment of that extent of

the property which was originally covered under Ex.

A1-mortgage deed. Therefore, it is seen that the

property covered by Ex. A1-mortgage deed was in the

exclusive possession and enjoyment of the appellant’s

father. It was contended by the learned counsel that

this aspect of the matter has not been considered by

the Land Tribunal and the Appellate Authority.

Further, it is urged that the appellant and the first

respondent are children of the deceased Mathai Mathai,

though they are only half-brother and sister being

born to two different mothers. Therefore, the first

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respondent is also one of the legal heirs and entitled

to inherit the property of her father but the

appellant utilizing or misusing the position as a

mighty man with muscle power managed to get oral

evidence in his favour though there was no documentary

evidence supporting his claim and he has tried to grab

the entire property left behind by their father in

exclusion of the first respondent and therefore, she

requested this Court not to interfere with the

impugned order.

8. We have heard the learned counsel for the parties

and with reference to the above factual and rival

legal contentions urged on behalf of the parties the

following points would arise for our consideration :-

(1)Whether Exh.A1, the mortgage deed dated

1909-1910 is a valid mortgage deed and

even if it is so, whether it is a simple

or usufructuary mortgage in terms of

Sections 58(b) and 58(d) of the Transfer

of Property Act, 1882?

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(2)Whether the concurrent finding of the

Appellate Authority in its judgment

passed in AA No. 216 of 1994 is based on

legal evidence on record and in

accordance with law?

(3)Whether the finding recorded in the

impugned judgment by the High Court in

exercise of its revisional jurisdiction

with regard to possession of the property

holding that the appellant is not in

possession under the document Exh. A1-

mortgage deed, and therefore, he is not

the deemed tenant of the land in question

under Section 4A of the K.L.R. Act, is

legal and valid?

(4)What order?

Answer to Point No. 1

9.The first point is required to be answered against

the appellant for the following reasons:-

It is an undisputed fact that Exh. A1 is the

mortgage deed executed by the uncle of the appellant

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and the first respondent in favour of the deceased

mother of the appellant as collateral security towards

the dowry amount. At the time of execution and

registration of the document, it is an undisputed fact

that the age of the mortgagee, the deceased mother of

the appellant was 15 years as mentioned in the

mortgage deed itself. Therefore, she had not attained

the majority under the Indian Majority Act, 1875. To

acquire the competency to enter into a contract with

the uncle of both the appellant and the first

respondent the parties should have been of age of

majority as required under Section 11 of the Indian

Contract Act, 1872. The aforesaid aspect fell for

interpretation before the Privy Council in the case of

Mohori Bibee v. Dharmodas Ghose

1

, wherein the Privy

Council after interpretations of relevant provisions

of Section 11 of the Indian Contract Act, 1872, has

held that the contracting parties should be competent

to contract as per the above provision and the minor’s

contract was held to be void as he cannot be the

mortgagor, the relevant paragraphs referred to in the

aforesaid decision are extracted hereunder :-

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(1903) I.L.R. 30 Calc. 539

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“Looking at these sections their

Lordships are satisfied that the Act

makes it essential that all

contracting parties should be

“competent to contract,” and

expressly provides that a person,

who by reason of infancy is

incompetent to contract, cannot make

a contract within the meaning of the

Act”

In the later part of the same paragraph, it is stated,

“The question whether a contract is

void or voidable presupposes the

existence of a contract within the

meaning of the Act, and cannot

arise in the case of an infant.

Their Lordships are therefore of

opinion that in the present case

there is not any such voidable

contract as is dealt with in

section 64.”

Thus, it was held that a minor cannot be a contracting

party, as a minor is not competent to contract as per

Section 11 of the Indian Contract Act. At this

juncture, it is also necessary to extract Sections 2

and 11 of the Indian Contract Act, 1872 which read as

under:-

“2.Interpretation-clause . In this Act

the following words and expressions are

used in the following senses, unless a

contrary intention appears from the

context :-

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(a) When one person signifies to

another his willingness to do or to

abstain from doing anything, with a

view to obtaining the assent of that

other to such act or abstinence, he is

said to make a proposal;

(b) When the person to whom the

proposal is made signifies his assent

thereto, the proposal is said to be

accepted. A proposal, when accepted,

becomes a promise;

(c) The person making the proposal is

called the “promisor” and the person

accepting the proposal is called the

“promisee”;

(d) When, at the desire of the

promisor, the promisee or any other

person has done or abstained from

doing, or does or abstains from doing,

or promises to do or to abstain from

doing, something, such act or

abstinence or promise is called a

consideration for the promise;

(e) Every promise and every set of

promises, forming the consideration for

each other, is an agreement;

(f) Promises, which form the

consideration or part of

the consideration for each other,

are called reciprocal promises;

(g) An agreement not enforceable by

law is said to be void;

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(h) An agreement enforceable by law is

a contract;

(i) An agreement which is enforceable

by law at the option of one or more of

the parties- thereto, but not at the

option of the other or others, is a

voidable contract;

(j) A contract which ceases to be

enforceable by law becomes void when it

ceases to be enforceable.

11. Who are competent to contract-

Every person is competent to contract

who is of the age of majority according

to the law to which he is subject, and

who is of sound mind and is not

disqualified from contracting by any

law to which he is subject.”

This important factual and legal aspect has been

conveniently ignored by the authorities including the

High Court while adverting to Exh.A1, the mortgage

deed. A strong reliance was placed upon it by both the

Land Tribunal and the Appellate Authority in allowing

the claim application of the appellant holding that he

is a deemed tenant under Section 4A of the K.L.R. Act

without noticing the aforesaid relevant factual aspect

of the matter. Therefore, we have to hold that the

mortgage deed-Ex. A1 executed by the uncle of the

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appellant and the first respondent, in favour of the

deceased mother of the appellant, is not a valid

mortgage deed in respect of the property covered in

the said document for the reason that the deceased

mother at the time of execution and registration of

the document was a minor, aged 15 years, and she was

not represented by her natural guardian to constitute

the document as valid as she has not attained majority

according to law. Many courts have held that a minor

can be a mortgagee as it is transfer of property in

the interest of the minor. We feel that this is an

erroneous application of the law keeping in mind the

decision of the Privy Council in Mohori Bibee’s case

(supra).

10.As per the Indian Contract Act,1872 it is clearly

stated that for an agreement to become a contract, the

parties must be competent to contract, wherein age of

majority is a condition for competency. A deed of

mortgage is a contract and we cannot hold that a

mortgage in the name of a minor is valid, simply

because it is in the interests of the minor unless she

is represented by her natural guardian or guardian

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appointed by the court. The law cannot be read

differently for a minor who is a mortgagor and a minor

who is a mortgagee as there are rights and liabilities

in respect of the immovable property would flow out of

such a contract on both of them. Therefore, this Court

has to hold that the mortgage deed-Ex.A1 is void ab

initio in law and the appellant cannot claim any

rights under it. Accordingly, the first part of first

point is answered against the appellant.

11.As regards to the later portion of the first

point, even if we assume that it is a valid mortgage

deed as per recitals of the documents, it is evident

that it is a simple mortgage in terms of Section 58(b)

of the Transfer of Property Act, 1882, but not a

usufructuary mortgage as defined under Section 58(d)

of the Transfer of Property Act. The relevant

provisions of the same are extracted hereunder :-

“58.(b)-Simple mortgage - Where,

without delivering possession of the

mortgaged property, the mortgagor

binds himself personally to pay the

mortgage-money, and agrees, expressly

or impliedly, that, in the event of

his failing to pay according to his

contract, the mortgagee shall have a

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right to cause the mortgaged property

to be sold and the proceeds of sale

to be applied, so far as may be

necessary, in payment of the

mortgage-money, the transaction is

called a simple mortgage and the

mortgagee a simple mortgagee.

(d) Usufructuary mortgage - Where the

mortgagor delivers possession or

expressly or by implication binds

himself to deliver possession of the

mortgaged property to the mortgagee,

and authorises him to retain such

possession until payment of the

mortgage-money, and to receive the

rents and profits accruing from the

property or any part of such rents

and profits and to appropriate the

same in lieu of interest, or in

payment of the mortgage-money, or

partly in lieu of interest or partly

in payment of the mortgage-money, the

transaction is called an usufructuary

mortgage and the mortgagee an

usufructuary mortgagee.”

On a careful reading of the recitals in Exh.A1, the

mortgage deed and the aforesaid provisions of the

Transfer of Property Act, i.e. the definitions of

simple mortgage and usufructuary mortgage, wherein

simple mortgage is defined as the mortgage where

property is mortgaged without delivering possession of

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the mortgaged property to the mortgagee whereas

usufructuary mortgage is defined as the mortgage where

the mortgagor delivers possession or expressly or by

implication binds himself to deliver possession of

the mortgaged property to the mortgagee and further

authorises him to retain such possession until payment

of the mortgage- money, and to receive the rents and

profits accruing from the property or any part of such

rents and profits and to appropriate the same in lieu

of interest, or in payment of the mortgage-money, or

partly in lieu of interest or partly in payment of the

mortgage-money. It is clear that in the present case,

it is a simple mortgage and not a usufructuary

mortgage. Here, it is relevant to mention the case of

Pratap Singh @ Babu Ram & Anr. v. Deputy Director of

Consolidation, Mainpuri & Ors.

2

, wherein this Court

held as under :-

“In the case of possessory or

usufructuary mortgage, possession is

delivered to the mortgagee. Delivery

of possession to the mortgagee is a

sine qua non of such a mortgage. It

is delivered in terms of the mortgage

by the mortgagor of his own volition

to the mortgagee. The mortgagee gets

possession over the land only because

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(2000) 4 SCC 614

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it has been delivered to him in terms

of the mortgage deed which equally

binds him.”

Thus, it is apparent that if a mortgage needs to be a

usufructuary mortgage, possession has to be delivered

under the aegis of the mortgage deed itself. Further,

as per section 58(d) of the Act, in a usufructuary

mortgage, the mortgagor authorises the mortgagee to

receive the rents and profits accruing from the

property in order to pay off the loan and in the

present case, there is nothing to show that this was

happening and it is not substantiated by the appellant

by producing documentary evidence. Further, the

mortgagor has agreed to pay interest at the rate of

‘half chakram per year for every hundred’ towards

repayment of the loan amount and this is detailed in

the mortgage deed itself and hence we can infer that

there was no intention on the part of the parties to

allow the mortgagee to appropriate the rents and

profits accruing out of the mortgaged property. It is

also stated in the mortgage deed that, on payment of

the principal, this mortgage deed will be redeemed,

and if the principal and interest are not repaid, then

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it was agreed ‘to realize it charged upon the security

property and on me’, meaning the mortgagor. Thus, it

is very clear that the mortgage deed only purports to

be that of a simple mortgage. Merely the fact that the

mortgagee herein happened to be in possession of the

mortgaged property will not make it sufficient to rule

that he/she was a mortgagee in possession under the

deed. Further, the argument that possession of the

property was delivered immediately after the deed was

executed also cannot be a ground to hold that

mortgagee was in possession of the land in question

as per the deed as there is no recital in the deed

which delivers possession of the land to the mortgagee

under the deed. In the case of Ramkishorelal & Anr. v.

Kamal Narayan

3

, it was held that the course of conduct

of the parties is of no relevance for the construction

of a document which is in itself, unambiguous. In the

present case, the mortgage deed is unambiguous and it

is patently clear that the mortgagor did not intend to

deliver possession of the mortgaged property as he has

clearly mentioned that he is paying interest but there

is no delivery of possession of land as per the deed.

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AIR 1963 SC 890

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12. By perusing the recitals of the mortgage deed, it

is seen that it neither expressly or by implication

binds the mortgagor, the uncle of the first respondent

to deliver possession of the property and for the

mortgagee to retain such possession of the same until

payment of the mortgage money but on the other hand

the mortgage is a simple mortgage as the recitals fall

within the definition of simple mortgage and there is

no express recital in the deed to deliver possession

of the mortgaged property.

By a careful reading of the orders passed by the

authorities, it is clear that the appellant has not

produced any revenue records to evidence the fact that

after Exh.A1-mortgage deed was executed by the

mortgagor in the name of the deceased mother of the

appellant, her name was entered in the revenue records

as the mortgagee in possession of the mortgagor’s

property covered in Exh. A1, and in this regard no

piece of evidence has been produced to establish this

fact which would have been material documentary

evidence. But on the other hand, the Land Tribunal and

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the Appellate Authority have preferred to simply rely

on the Revenue Inspector’s report as well as the

deposition of the father of the first respondent and

the appellant as per Exh.A8 in the proceedings in O.A.

No. 531 of 1975 in order to hold that the appellant

was in possession as the mortgagee. Even assuming the

said document Exh.A8 deposition of the father is taken

on record as evidence under Section 80 of the Evidence

Act, the said document at best will disclose the fact

that the appellant is in possession of the property

but not as a successor of the deceased mother, the

mortgagee of the property. He also could not have

claimed that he has succeeded in possession of the

land in question of the deceased mother for the reason

undisputedly as stated by the first respondent that at

the time of death of the deceased mother-mortgagee,

the appellant was a minor and therefore, he could not

have come into possession and continued as such after

the death of the deceased mortgagee and so the

possession of the land falls to the father of the

appellant. The appellant has failed to produce and

establish the fact in the absence of recital in the

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mortgage deed Exh.A1 as to how the mortgagee has come

into the possession and how he continued possession as

successor of the mortgagee. The aforesaid factual and

legal aspect has not been taken into consideration by

both the authorities while coming to the conclusion on

the basis of Exh.A1 and instead, accepted the oral

testimony of the appellant, and the finding is

erroneously recorded by them in his favour holding

that the deceased mortgagee was in possession of the

land in question and after her death he continued in

possession as a mortgagee. Therefore, the concurrent

finding of fact of the appellate authority that he has

proved this claim as a deemed tenant under Section 4A

of the K.L.R. Act and he is entitled to get the

purchase certificate of the owner of the property is

not only an erroneous finding but suffers from error

in law and it has been rightly set aside by the High

Court in exercise of its wider civil jurisdiction by

recording a finding that the appellant’s possession of

the property is not that of a mortgagee under the

mortgage deed.

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Answer to Point Nos. 2 and 3

13.Even in the absence of the reasons which we have

given in this judgment, the conclusion and the

concurrent finding of fact arrived at by the Land

Tribunal and the First Appellate Authority is not only

an erroneous finding but suffers from error in law.

Further, another important aspect of the case that has

been ignored by both the authorities and the High

Court is that the mortgagor (or his legal heirs) have

not been impleaded as a party to the original claim or

to subsequent proceedings. There is also no mention

whatsoever of the status of the original dowry amount

for which the property was mortgaged in the first

place. Was the obligation discharged? What is the

mortgagor’s stand on the issue? Nothing is clear.

Further, the first respondent’s claim of ownership

through her father is also highly curious as it is not

stated how the father is claiming ownership over the

property. In the absence of this important evidence,

we cannot adjudicate upon the ownership of the

property. We can only hold that the appellant cannot

claim to be a deemed tenant of the land in question

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under the K.L.R Act and it is open to the parties to

litigate on the question of ownership of the property

in question before the appropriate authority. We hold

that the impugned judgment of the High Court is

perfectly legal and valid, and that the orders of the

Land Tribunal and Appellate Authority are erroneous

for the reason that the facts and legal evidence have

been wrongly appreciated and held in favour of the

appellant, although it is contrary to the recitals of

Exh.A1, as well as the provisions of the Indian

Contract Act and the provisions of the Transfer of

Property Act. Therefore, the findings and reasons

recorded by both the Land Tribunal and the Appellate

Authority are erroneous and suffer from error in law

for the reasons referred to supra. We answer the point

Nos. 2 and 3 against the appellant.

Answer to Point No. 4

14. In view of our findings on the point Nos. 1 to 3

against the appellant, we hereby dismiss this appeal

and uphold the impugned judgment of the High Court

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passed in the Civil Revision Petition. It is open to

the parties to litigate before the appropriate court

with regard to the ownership rights of the property

under the relevant provisions of law to get their

rights settled upon the property in question. No

costs.

……………………………………………………………………… J.

[GYAN SUDHA MISRA]

……………………………………………………………………… J.

[V. GOPALA GOWDA]

New Delhi,

April 25, 2014

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ITEM NO.1C COURT NO.13 SECTION XIA

FOR JUDGMENT

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 4479 OF 2007

MATHAI MATHAI Appellant (s)

VERSUS

JOSEPH MARY @ MARYKKUTTY JOPSEPH & ORS. Respondent(s)

Date: 25/04/2014 This Appeal was called on for judgment today.

For Appellant(s) Mr. M.T. George,Adv.

For Respondent(s) Mr. Roy Abraham, Adv.

Hon'ble Mr. Justice V. Gopala Gowda

pronounced the judgment of the Bench comprising

Hon'ble Mrs. Justice Gyan Sudha Misra and His

Lordship.

Civil Appeal is dismissed in terms of signed

reportable judgment. No costs.

(Pardeep Kumar)

AR-cum-PS

(Renu Diwan)

Court Master

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]

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