IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 361 of 2001(B)
1. THANKAMMA
... Petitioner
Vs
1. MATHAI MATHEW
... Respondent
For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)
For Respondent :SRI.K.S.HARIHARAPUTHRAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/03/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A. No.361 of 2001
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Dated this the 13th day of March, 2009
J U D G M E N T
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Defendant Nos.2, 5, 6 and 8 have preferred this second appeal
on the following substantial questions of law:
"(1) Has not the registry of the suit
properties which are kandukrishi thanathu
lands in the name of defendant No.1
extinguished the right, title and interest of the
plaintiff in the suit properties and does the
decision in Chuppan Nadar Narayanan
Nadar v. Kumaran Kochummini and
others (1971 KLT 440) require
reconsideration?
(2) Does such registry enure to the
benefit of the plaintiff even when defendant
No.1 obtained such registry after an open fight
with the plaintiff?
(3) If the registry does not enure to the
benefit of the plaintiff, has not the defendants
prescribed title by adverse possession and law
of limitation?
(4) Are not the improvements made by
defendant No.1 enhancing the value of the land
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for which compensation is due to defendant
No.1?
2. Parties are referred to as plaintiff and defendants for the
sake of convenience.
3. Plaintiff filed the suit for redemption of mortgage in respect
of the suit properties which, it is not disputed before me are
‘kandukrishi thanathu lands’. According to the plaintiff, suit
properties formed part of kandukrishi lands (home farm lands of
erstwhile Maharaja of Travancore State). It was given on a permanent
lease to one Thomman Jacob (Exhibit A1 series are the delivery lists
produced to prove the auction of the said properties in favour of
Thomman Jacob). While he was in possession and enjoyment of the
said properties he assigned his leasehold right in favour of the plaintiff
as per Ext.A4, assignment deed No.784/1955 dated 11.7.1955.
Plaintiff mortgaged his leasehold right in favour of one Ouseph Ouseph
as per Ext.A2, mortgage deed No.282/57 dated 5.4.1957. Ouseph
Ouseph assigned his (mortgagee’s) right in favour of defendant No.1
as per document No.687/1963 (which is not produced in the case).
Plaintiff thereafter created puravaypa (another mortgage) for
Rs.6,500/- over his leasehold right in favour of defendant No.1 as per
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Ext.A3, deed No.812/1963 dated 27.6.1963 fixing the period of
redemption as 12 years. In the meantime the Maharaja of
Travancore promulgated kandukrishi proclamation of 1154 M.E.
transferring and surrendering right, title and interest in all kandukrishi
lands to the Government of Travancore. Government of Travancore
framed and published Rules for assignment of registry of kandukrishi
lands on 11.10.1958 providing for assignment of kandukrishi lands to
the lessees, assignees or mortgagees. In pursuance of that publication
plaintiff and defendant No.1 applied for assignment individually.
Ultimately, Government preferred the claim of defendant No.1 and
granted him registry. According to the plaintiff, defendant No.1
cannot take that advantage in derogation of his right by virtue of his
position as mortgagee under the plaintiff and hence the registry of the
lands in his favour enured to the benefit of the plaintiff. Defendant
No1. is holding that right as trustee of the plaintiff. Defendant No.1 is
therefore bound to transfer the property on receipt of the mortgage
and puravaypa amounts as stipulated in the deeds above referred.
Defendants 2 to 5 are impleaded in the suit as subsequent
encumbrancers. Defendant Nos.1 and 2 while admitting the
transactions stated by plaintiff contended that defendant No.1 applied
for registry of the suit properties in his name before the Special
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Tahsildar concerned, but that application was rejected. The appeal
preferred to the District Collector was rejected. Hence defendant
No.1 preferred a revision before the Government (Board of Revenue).
That revision was allowed as per Ext.B1 order dated 22.9.1971. The
registry of land was granted in the name of defendant No.1. Exhibit B2
is the pattayam No.A3-8022/1971. Plaintiff challenged that order
in this Court in Writ Petition No.729 of 1972 but it was dismissed as
per Ext.B3, order dated 20.12.1974. The suit is therefore barred by
the principles of res judicata. Defendant No.1 became the absolute
owner of the properties as per Ext.B1, order of the Government
(Board of Revenue) granting registry in his name. In exercise of his
absolute right over the suit properties defendant No.1 transferred 2.5
acres to defendant No.2, 3 acres to Maniyamma, daughter of
defendant No.1 and another 2 acres to Sreedevi Amma who are
necessary parties to this litigation. The creation of mortgage was void
and not binding on the Government. Defendants 1 and 2 have
constructed a house in the suit properties more than 20 years back
spending around Rs.5 lakhs. Another sum of Rs.5 lakhs was spent for
reclamation of the lands. It is incorrect to say that defendant No.1
obtained registry in favour of plaintiff. Plaintiff was only a tenant-at-
will in respect of the suit properties. Defendant No.1 obtained registry
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as per Ext.B1 in derogation of that right. Right if any of the plaintiff is
lost by adverse possession and limitation.
4. Learned Munsiff framed issues whether the suit is barred
by res judicata, whether plaintiff has subsisting right over the suit
properties, whether he is entitled to redeem the mortgage and
whether his right is lost by adverse possession and limitation. Apart
from the exhibits above referred parties have adduced oral evidence
as well. Learned Munsiff answered the issues in favour of the plaintiff
and granted decree for redemption of the mortgage. That judgment
and decree were confirmed by the first appellate court. The first
appellate court also rejected the claim of defendant No.1 for value of
improvements. Hence this appeal at the instance of defendant No.2
and 5, 6 and 8 who are assignees and legal representatives of
defendant No.1.
Has not the registry in the name of defendant No.1
extinguished the right, title and interest of the plaintiff?:
5. It is contended by the learned counsel for defendants 2,
5, 6 and 8 that the registry of the suit properties (kandukrishi thanathu
lands) in favour of defendant No.1 amounted to automatic extinction of
whatever right the plaintiff had over the said properties. According to
the learned counsel, the decision in Chuppan Nadar Narayanan
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Nadar v. Kumaran Kochummini and Others (1971 KLT 440)
require reconsideration in that, though the Full Bench was considering
the nature and character of registry in respect of kandukrishi
‘thanathu’ lands, all the decisions referred to by the Full Bench related
to the registry of kandukrishi ‘patta’ lands which is different in nature
and character from the registry of kandukrishi ‘thanathu’ lands.
According to the learned counsel, the Full Bench has not laid down
the correct law in respect of the registry of kandukrishi ‘thanathu’
lands. Learned counsel for the contesting respondent (plaintiff) in
response stated that what was assigned by Thomman Jacob in favour
of the plaintiff as per Ext.A4 is the leasehold right over the suit
properties and what the plaintiff mortgaged in favour of Ouseph
Ouseph as per Ext.A2 and what defendant No.1 got from Ouseph
Ouseph as per document No.687/1963 is also that leasehold right.
The puravaypa created by the plaintiff in favour of defendant No.1 as
per Ext.A3 also is over the leasehold right of the plaintiff. Registry is
only in respect of the proprietory right of the Government. Therefore
the contention that the registry of suit properties in the name of
defendant No.1 extinguished the leasehold right of the plaintiff
cannot be sustained.
6. Kandukrishi lands are described in the Travancore State
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Manual by V. Nagam Aiya, Vol.III at page 325. Kandukrishi lands are
described as the home farm of the sovereign and are cultivated by
the tenant on behalf of the sovereign himself. The tenants holding
such lands are tenants-at-will who theoratically do not possess even
the right of occupancy though as a matter of fact they are not
interfered with so long as the Sirkar dues are paid. In Travancore
Manual by T.K. Velupillai, Vol.III at page 193 kandukrishi lands are
described as sthanam properties of H.H. the Maharaja, i.e., the home
farm of the sovereign and are cultivated by the tenants. Tenants have
no right of property. They are mere tenants at will. But they are not
interfered with so long as the dues are paid. The policy of the
Government is to bring the revenue registry of the alienated
kandukrishi lands into accord with actual possession by transferring
registry in favour of the alienees in possession. It is also stated that
kandukrishi lands are either ‘pattom’ or ‘thanathu’. Pattom lands are
those for which pattas were issued at the time of the settlement while
thanathu lands are those for which no pattas are issued at the time of
settlement and which are enjoyed by the tenants either on payment of
the rent fixed at settlement or on kuthakapattom given by the
kandukrishi department. Generally, tenants of kandukrishi pattam
lands when they are renewed are entitled to get compensation for
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their improvements while the tenants of the thanathu lands cannot as
a matter of right claim compensation. The Travancore Government
framed Rules for kandukrishi lands on 8th March 1934. Rule 2(a) of
the Rule says that kandukrishi lands are of two kinds; kandukrishi
thanathu lands and kandukrishi pattam lands. Rule 3 states that
kandukrishi Tahsildar is competent to enquire and effect the transfer
of kandukrishi holdings in the revenue registers. But only transfers by
inheritance and family partition shall be recognised in the case of
kandukrishi thanathu lands. Other kinds of transfer in the case of
such lands will entail forfeiture of the tenancy. In other words,
kandukrishi pattam lands could be transferred by the tenant in any
lawful manner so far as kandukrishi thanathu lands are concerned,
transfer is permitted by inheritance and family partition alone and
Rule 3 specifically provides that any other mode of transfer in the
case of kandukrishi thanathu lands would entail forfeiture of the
tenancy. Rule 4 of the Rules authorises the kandukrishi Tahsildar to
issue pattas for kandukrishi pattom lands when he is satisfied that they
have changed hands by virtue of outright sale voluntary or involuntary
gift, partition and testamentary and intestate succession or when he,
by virtue of the rules enters on behalf of the Sirkar into fresh lease
arrangements in regard thereto. As regards the nature and
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character of tenancy in respect of kandukrishi lands it is stated in Rule
61 of Travancore Land Revenue Manual, Vol.III, page 34 that
kandukrishi tenants include pattom, thanathu, irayaili, etc., and that
pattas had been issued in the settlement only to the holders of pattom
lands. Kandukrishi tenants whether they hold pattom or thanathu
lands are mere tenants-at-will. The distinction between ‘pattom’ and
‘thanathu’ lands, according to learned counsel for the contesting
defendants can be discerned from Section 8 of the Travancore Code of
Civil Procedure as well. That provision created a bar on suits in
relation to kandukrishi lands unless the plaint is accompanied by an
order of the Government to seek redressal in civil courts. Exemption
was granted to registered holders of kandukrishi pattom lands
recognised by Government to recover the land from a mortgagee or
lessee or to evict a trespasser.
7. The Government framed Kandukrishi Land Assignment
Rules (for short, “the Rules”) in the year 1958. Rule 3 defines
kandukrishi land including kandukrishi ‘pattom’ and kandukrishi
‘thanathu’ lands. Rule 5 states as under:
“5(1) Kandukrishi pattom land shall be
registered in the name of the pattadar, or if
there has been outright assignment in whole or
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assignee to the extent necessary or if there has
been a partition of the land or inheritance by
succession or acquisition of title by decree of
Court, in the name of the person deriving title
as per such partition or succession or decree.
(2) Mortgagees or lessees from
pattadars of pattom lands or their assignees or
representatives will continue to enjoy the
existing rights even after assignment.
(3) Notwithstanding anything contained
in sub-rule (1) where a lessee or sub lessee is
in possession of Kandukrishy Pattom land and
the pattadar or any other person entitled to
assignment on registry under sub-rule (1) has
not filed an application for such assignment
before the date specified in sub-rule (a) of Rule
10, the land shall, subject to the provisions of
sub-rule (c) of Rule 10, be registered in the
name of such lessee or sub-lessee, as the case
may be”.
According to the learned counsel for contesting defendants, Rule 5
which relates to kandukrishi pattom land admits transfer of
possession in any form and Rule 5(2) indicate that the registry in
respect of the pattom land recognised the right of the original lessee
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who transferred possession as is clear from Rule 5(2) that mortgagees
or lessees from pattadars of pattom lands or their assignees or
representatives will continue to enjoy the existing rights even after
assignment. Rule 6 dealing with ‘thanathu’ lands reads as under:
“6. (1) Subject to the provisions of
sub-rule (2) Kandukrishi Thanathu land shall be
registered in the name of the lessee, and if
there has been a partition of the land or
inheritance by succession or acquisition of title
by decree of Court, in the name of the person
deriving title as per such partition or succession
or decree.
(2)(a) Where a lessee has
transferred the possession of thanathu land to
another person whether by sale, sub-lease, Otti,
mortgage or any other transaction under a
registered document the land shall be
registered in the name of such transferee.
(b) in the case of thanathu lands
involved in civil suits, such lands shall be
registered in the name of the person, or
persons deriving title according to the final
decisions in such civil suits”.
8. Learned counsel for contesting defendants contends that
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Rule 6(2a) does not contemplate or recognise the presence of the
transferor or preserve his right and interest but the right is conferred
on the transferee who is in possession, be it by a lease, sub-lease, Otti,
mortgage or any other transaction but by a registered instrument.
Learned counsel contends that Rule 6(2a) extinguished the right of the
transferor in ‘thanathu’ land once the registry is granted in the name
of the transferee who is in possession under a registered instrument.
According to the learned counsel though tenancy in respect of
kandukrishi pattom and thanathu lands are nothing but tenancy-at-
will, the tenant of the kandukrishi pattom land enjoys a better right in
that he will not normally be evicted so far as he paid the Sirkar dues
and, he is entitled to registry at the time of settlement if found in
possession and Rule 5(2) also admits the right of the transferor
whereas in the case of kandukrishi thanathu lands, though that also is
a tenancy-at-will, person in possession is not entitled to get registry at
the time of settlement, Sirkar is free to dispossess him at any point of
time even without payment of compensation and that it is the absolute
right of the Sirkar to grant the registry in favour of any person found in
possession of kandukrishi thanathu lands even in derogation of the
right of any other person who was earlier in possession. Once such
registry is granted, it extinguished the right of the former possessor if
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any. To substantiate the above contentions learned counsel placed
reliance on the following decisions:
(i) Sankaranarayana Panikar and Others v. Kunjan Pillai and Others (XXVI TLR 184): In this case a Tharwad was in possession of kandukrishi (it is not clear whether it was pattom or thanathu) land. That land was mortgaged to the
Tharwad of the defendants. Government registered the land in the
name of defendant No.1 at the time of settlement. Plaintiffs wanted to
get back the land. Defendants contended that the registry
extinguished the title of the Tharwad of the plaintiffs. It was held that
the holder of kandukrishi lands (home farm lands of the sovereign) is
tenant-at-will and has no right to alienate the property by sale, gift,
mortgage or in any other way without the previous consent of the
Sirkar. The Sirkar has the absolute right of granting the property to
any one it likes and the registry extinguished the title if any which the
plaintiffs had over the properties and conferred title on defendant
No.1. It was held that the Tharwad of the plaintiffs had no subsisting
title to the land on the date of the suit.
(ii) Parameswaran Gonvindan v. Ouseph
Geevarghese Kathanar (XXIX TLR 100): In this case the
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owner of equity of redemption over the suit properties sought
redemption of mortgage. The mortgagee’s interest through
intermediate transfers vested in the defendant. Defendant contended
that the properties are kandukrishi lands, that patta in respect of the
properties had been granted to him by the Sirkar and hence the suit is
not maintainable. It was argued that the grant of patta was issued
behind the back of the plaintiff. Defendant relied on the decision in
Sankaranarayana Panikar’s case. Court found that assuming that
the plaintiff was not heard before the Sirkar decided to grant patta to
the defendant in respect of the kandukrishi lands, it made no
difference and that holders of kandukrishi lands are merely tenants-at-
will who have no right of alienating the properties without the previous
consent of the Sirkar. The grant of patta operated as extinguishment
of the title of any other person in such lands.
(iii) Ouseph Abraham v. Kuncherira Kuncheria
and Another (XXII TLJ 813): This decision concerns
kandukrishi pattam lands. Property was held jointly by the father of
defendant No.1 and the paternal grant father of the plaintiff. When the
plaintiff was a minor another person representing him as his next
friend executed a sale deed in favour of defendant No.1 in respect of
the said properties. Following that, defendant No.1 got registry of the
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land in his name. Plaintiff challenged the sale deed executed on his
behalf as void, contending that the person who represented him was
not his next friend or competent to do so. It was held that though
there was perhaps a fraud on the plaintiff (regarding the execution of
the sale deed) he cannot set aside the registry which the Sirkar was
competent to grant or withhold from any one. Reliance was placed on
the decision in Sankaranarayana Panikar’s case and Ouseph
Abraham’s case.
(iv) Subramonian Kesavan Empran, died, his heir
Kesavan Narayanan Empran v. Krishnan Govindan
Plappalli and Another (XXII TLJ 968): In that case question
arose whether the right of the person in possession of kandukrishi
lands could be attached and sold in execution of a decree against him.
The Full Bench held that the person in possession has a limited right
(in respect of the kandukrishi pattam lands) to be in possession until
he is evicted by the Sirkar for non-payment of dues and that such right
could be attached and sold. The Full Bench observed thus:
“It has no doubt been ruled repeatedly
by this Court that the kandukrishi tenant is only
a tenant-at-will under the Crown. But even so it
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-: 16 :-cannot be held that it is not an estate known to
the law or that it creates no right or interest at
all. No ruling has been cited in support of the
contention that the right of a tenant-at-will
cannot be attached and sold. Such a tenant
has a right which is recognised by the law and
is available against all the world except the
landlord and even as against him his position is
not like that of a mere tenant by sufferance
while the former has its origin in a contract of
letting (express or implied) the latter cannot
arise by contract and is in fact only a mere
fiction of the law to prevent what would
otherwise be an act of trespass. A tenancy-at-
will thus clearly gives rise to reciprocal rights
and liabilities (Fao, Landlord and Tenant, Fifth
Edition, pages 2, 445, 651)”.
According to the learned counsel for the contesting defendants that
limited right (even if there be any) is available only in respect of
kandukrishi pattom lands and not thanathu lands. It is also
contended by the learned counsel that even in the light of the Full
Bench decision, right of Sirkar even with respect to kandukrishi
pattom lands remained unaffected, as it was before.
(v) Gnanabharanam Muthiah v. Soosamuthu
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Maryaviswasam Nadar (1947 TLR 558): This decision
concerned unregistered puduval land. But according to the learned
counsel for the contesting defendants, the reasoning applies to
kandukrishi lands also. Plaintiff reclaimed the said land and made
some improvements and then leased the same to defendant No.1 for
a period of 10 years. Even before the expiry of the said period,
plaintiff wanted to eject defendant No.1, the lessee from the said land
on the ground of non-payment of rent and repudiation of obligations
undertaken under the lease agreement. Defendant No.1 questioned
the right of the plaintiff to claim ejectment. When the suit was
pending Sirkar granted kuthakapattam lease in respect of the said
property in the name of the defendants. The court pointed out that
the grant terminated the rights of the lessor though the lessee was the
grantee. It was also held that the Sirkar in exercise of its unfettered
discretion granted the kuthakapattom right to defendant No.1 which
the court cannot nullify. The principle was held applicable where the
relationship between the parties is one of landlord and tenant or
mortgagor and mortgagee or the like. Grant of kuthakapattom lease by
the Sirkar (in favour of the defendant) obviously means eviction by
the paramount title holder.
(vi) Neelakanta Pillai v. Madhavan Nair (1965
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KLT 356): The suit properties were kandukrishi pattam lands. It was
held that the occupant or cultivator of kandukrishi lands is regarded as
a tenant-at-will and it is an absolute right of the Government to grant
patta in respect of kandukrishi lands to whomsoever it pleases and
such grant will extinguish all prior rights of the occupant. It is
impossible to hold that the tenant holds such lands as a mere tenant-
at-will with no powers of disposal at all over them. The rights of the
occupant of such lands constitute valuable right. If the result of the
grant of patta in respect of such lands is to extinguish antecedent
rights of the occupant, it is clear that such grant can only be in
derogation of the rights of the occupant. Learned counsel for the
contesting defendants would draw a distinction that the case relates
to kandukrishi pattom lands in respect of which there was some right
for the lessee unlike in the case of kandukrishi thanathu lands where
once registry is given to the person in possession, it amounts to
eviction of the prior owner by the paramount title holder.
(vii) Meenakshi Amma v. Eappen (1966 KLT
1158): This case concerned kandukrishi pattom lands. In the
partition in the Tharwad, property was allotted to the plaintiff. Patta
was given mistakenly in the name of the Tharwad of the defendant.
Defendant contended that the land was in the possession of his
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Tharwad at the time of revenue settlement and patta was rightly
issued to his Tharwad. In the suit filed by the plaintiff for recovery it
was found that whatever right the plaintiff had over the suit property
stood extinguished on the Government giving registry in the name of
the defendant.
(viii) Chuppan Nadar Narayanan Nadar v.
Kumaran Kochummini and Others (1971 KLT 440).
Property concerned was kandukrishi thanathu lands. Suit was for
redemption of a mortgage created in 1097 M.E. executed in favour of
the predecessor-in-interest of the defendant. Pending suit, Special
Tahsildar passed order granting registry of the property to the
defendant. Defendant contended that plaintiffs lost their right to
redeem the mortgage as the registry did not enure to the benefit of
the plaintiffs. That contention was overruled by the courts below.
When the Second appeal came for hearing before a learned Single
Judge, the matter was ordered to be placed before the Honourable
Chief Justice for reference to a Full Bench as there appeared to be
conflict between the decisions of the Division Bench in Neelakanta
Pillai’s case and the decision by the learned Single Judge in
Kumarankari Devaswom’s case. It was admitted that predecessor-
in-interest of the plaintiff who executed the mortgage was a lessee of
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the suit property. The Full Bench held:
“As the mortgage was and could only be a
mortgage on the leasehold interest of the
mortgagor, the suit was really one for
redemption and for recovery of the possessory
interest of the lessee in the property. The
interest of a lessee of kandukrishi thanathu
land has been characterised as a ‘valuable
interest’ in Neelakanta Pillai v. Madhavan
Nair (1965 KLT 537) following the decision in
Subramonian Kesavan Empran v. Krishnan
Govindan Plappalli (22 TLJ, 968 at page
976) where it was observed that “it was
impossible to hold that the tenant held the lands
as a ‘mere tenant-at-will with no powers of
disposal at all over them”. We do not think that
in a suit for redemption of a mortgage on such
an interest, the question whether the ‘registry of
the land in favour of the mortgagee would
enure to his benefit or to the benefit of the
mortgagor would have any relevance, as the
mortgage that is sought to be redeemed is the
mortgage of the leasehold interest. If by the
registry the leasehold interest of the mortgagor
was determined, and so the mortgagor has
ceased to have any interest in the equity of
S.A. No.361 of 2001
-: 21 :-redemption, namely the leasehold interest, the
question might be relevant. But if by the
registry the leasehold interest of the mortgagor
was not determined, the lease will continue to
subsist and the mortgagor being interested in
the equity of redemption, namely the leasehold
interest, would be entitled to redeem the
mortgage on that interest and recover
possession. The fact that the mortgagee has
obtained the registry, and the fact that even if
the registry would enure to his benefit, would
not entitle him to resist redemption. In other
words, even if it is assumed that the mortgagee
became the owner of the property by the
registry, the mortgagor would be entitled to
redeem the mortgage on the leasehold interest,
as the leasehold interest in the property has not
been determined. From this point of view, the
question whether the registry to the 2nd
defendant and others of the land, would enure
to the benefit of the plaintiffs is really foreign to
the scope of the suit. The 2nd defendant cannot
deny the leasehold interest of the predecessor-
in-interest of the plaintiffs at the time of the
mortgage. In other words, the 2nd defendant
would be estopped from contending that the
mortgagor – the predecessor-in-interest of the
plaintiffs – had no leasehold interest in the
S.A. No.361 of 2001
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property. If that be so, the 2nd defendant must
show that the leasehold interest has been
determined either by the order of registry or by
a notice to quit by the persons in whose favour
the registry was granted in order to resist the
suit for redemption. The registry did not
determine the lese. There was no case for the
2nd defendant that the leasehold interest of the
mortgagor has been determined in accordance
with law by the persons in whose favour the
registry was granted, and therefore, the
plaintiffs have lost their equity of redemption
which alone would disable them from filing the
suit”.
Learned counsel also referred to me a passage in Halsbury’s laws of
England on relation of landlord and tenant (at page 35) where the
nature and character of tenancy-at-will is stated. It is stated that
tenancy at will may be created by express agreement or by implication
and it is determinable at the will of either party. It is a relation
personal to the lessor and lessee so that the tenancy determines on
the death of either party and neither the tenancy nor the reversion can
be assigned or otherwise disposed of without determining the tenancy.
Learned counsel contends that in Narayanan Nadar’s case it is
stated that in the case of kandukrishi thanathu lands registry in favour
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of the mortgagee in possession does not terminate the mortgagor-
mortgagee relationship. All the decisions referred to and relied in
Narayanan Nadar’s case related to kandukrishi pattom lands the
nature and tenure of which are entirely different from kandukrishi
thanathu lands. According to the learned counsel it might be said in
the light of the decision in Subramonian Kesavan Empran’s case
(referred supra) that in respect of kandukrishi pattom lands person in
possession has some valuable right in that until he is evicted by the
paramount title holder (Government) for non-payment of dues he is
entitled to remain in possession whereas no such right is conferred a
the person in possession of kandukrishi thanathu lands. Learned
counsel contends that the cardinal distinction between kandukrishi
thanathu and pattom lands was lost sight of while deciding
Narayanan Nadar’s case and that the decision in Narayanan
Nadar’s case does not lay down the correct law. Learned counsel
therefore submitted that in case the decision in Narayanan Nadar’s
case is found not distinguishable on facts, the matter be placed before
the Honourable Acting Chief Justice to constitute a Larger Bench to
reconsider the decision in Narayanan Nadar’s case.
9. In response learned counsel for the plaintiff contended
that there is no reason or necessity to reconsider the Full Bench
S.A. No.361 of 2001
-: 24 :-
decision in Narayanan Nadar’s case in so far as it lays down the
correct proposition of law in respect of kandukrishi thanathu lands.
Learned counsel contended that even in respect of thanathu lands
Rule 6(2a) of the Rules recognised the presence of mortgagee who is
in possession of the land and what is assigned to him by the registry is
not the right of the mortgagor but, the proprietory right of the
paramount title holder (Government) and hence the right of the
mortgagor is not extinguished.
10. Authorities referred to above say that lease of
kandukrishi thanathu lands is nothing but a tenancy-at-will. Therefore,
it was determinable at the will of the lessor or lessee. In this case it is
not disputed before me that the lands in question are kandukrishi
thanathu lands and the right to possess the same was auctioned in
favour of Thomman Jacob, predecessor-in-interest of the plaintiff. The
said Thomman Jacob assigned that right in favour of the plaintiff as per
Ext.A4, assignment deed No.785/1955 dated 11.7.1955. There is no
case or evidence that there was any amount due from the plaintiff or
his predecessor-in-interest to the Government so far as the said land
was concerned. Therefore applying the law as laid down in
Subramonian Kesavan Empran’s case plaintiff as well as his
predecessor-in-interest had a “valuable right” in respect of the said
S.A. No.361 of 2001
-: 25 :-
lands to be in possession until evicted by the Government. Plaintiff
continued to have that “valuable right” at the time he mortgaged
that right (leasehold right) in favour of the predecessor-in-interest of
defendant No.1 as per Ext.A2, dated 5.4.1957 and the said Ouseph
Ouseph assigned the mortgagee’s right to defendant No.1 as per
document No.687/1963. It is important to note that Rule 6(2a)
recognised the presence of sub-lessee or mortgagee as the case may
be as is evident from the fact that the provision stated that where the
lessee has transferred the possession of kandukrishi thanathu lands to
any other person be it by sale, sub lease, otti, mortgage or any other
transaction under a registered document, the land shall be registered
in the name of such transferee. Therefore it is not as if Rule 6(2a) of
the Rules did not recognise the mortgagee in possession of the
kandukrishi thanathu lands provided, he got such possession under a
registered document. The contention advanced by the learned
counsel for the contesting defendants is that on such registry
whatever right the lessee who created the mortgage had over the
property stood extinguished. True, decisions relied on by learned
counsel counsel except the Full Bench decision in Narayanan
Nadar’s case supported that contention. But, the Full Bench has
specifically held in respect of kandukrishi ‘thanathu’ lands that the
S.A. No.361 of 2001
-: 26 :-
registry of the land in the name of mortgagee under Rule 6(2) (as it
stood then) did not extinguish the right of the mortgagor. The Full
Bench held that:
“…..as the mortgage was and could only
be a mortgage on the leasehold interest of the
mortgagor, the suit was really one for
redemption and for recovery of the possessory
interest of the lessee in the property. The
interest of a lessee of kandukrishi thanathu
land has been characterised as a “valuable
interest” in Neelakanta Pillai v.
Madhavan Nair (1965 KLT 537) following
the decision in Subramonian Kesavan
Empran v. Kirshnan Govindan
Plappilli (22 TLJ 968 at page 976) where it
was observed that it was impossible to hold
that the tenant held the lands as a mere
tenant-at-will with no powers of disposal at all
over them”.
The Full Bench further observed that:
“We do not think that in a suit for
S.A. No.361 of 2001
-: 27 :-
redemption of a mortgage on such an interest,
the question whether the registry of the land in
favour of the mortgagee would enure to his
behalf or to the benefit of the mortgagor
would have any relevance as the mortgage that
is sought to be redeemed is the mortgage of
the leasehold interest”.
The Full Bench also observed that:
“….even if it is assumed that the
mortgagee became the owner of the property
by the registry, the mortgagor would be
entitled to redeem the mortgage on the
leasehold interest, as the leasehold interest in
the property has not been determined”.
11. As I stated above, Rule 6(2a) does not show that the
leasehold interest of the mortgagee was extinguished by the registry
in the name of defendant No.1. Therefore, contention that the
mortgagor ceased to have interest over the property by the registry
cannot be accepted. Nor can the request for a reference on the
decision of the Full Bench be accepted.
Whether defendant No.1 has perfected title by adverse
S.A. No.361 of 2001
-: 28 :-
possession and law of limitation?:
12. It is contended by the learned counsel for contesting
defendants that at any rate, right of the plaintiff as mortgagor is lost
by adverse possession and limitation at least from Ext.B1, dated
22.9.1971 onwards, defendant No.1 was in possession and enjoyment
of the suit property as its absolute owner to the knowledge of the
plaintiff, defendant No.1 got the registry in his name after an open
fight with the plaintiff and hence the latter cannot any more contend
that defendant No.1 is holding property or obtained the registry for
and on his behalf. According to the learned counsel, principles of trust
or constructive trust under Section 90 of the Indian Trust Act has no
application to the facts of the case. As plaintiff being not in
possession of the property was not entitled to get the registry, it
cannot be said that defendant No.1 got the registry in derogation of
any right of the plaintiff. Learned counsel also submitted that even in
Narayanan Nadar’s case, the Full Bench has not decided upon the
application of Sec.90 of the Trust Act on such factual situation.
Learned counsel pointed out from paragraph 3 of the plaint that the
only contention raised by the plaintiff is that the registry obtained by
defendant No.1 should enure to the benefit of the plaintiff and hence
the mortgagor-mortgagee relationship survived. The character and
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-: 29 :-
nature of the suit though styled as one for redemption of mortgage is
really one for recovery of possession and Article 65 of the Limitation
Act applies. Learned counsel invited my attention to the evidence of
P.W.1 who stated on behalf of the plaintiff that defendant No.1 has
been enjoying the property as its owner to the knowledge of the
plaintiff. Learned counsel for the plaintiff per contra contended that
the plaintiff is not banking upon Sec.90 of the Trust Act to sustain the
plaint claim, but on the mortgagor-mortgagee relationship which
according to the learned counsel is not extinguished in the manner
provided under law. Learned counsel contended that the principle
‘once a mortgage always a mortgage’ would and should apply and the
mortgagor-mortgagee relationship could be terminated only by
operation of law, a decree of court or by act of parties. Termination
of mortgagor-mortgagee relationship by registry did not arise in view
of the decision in Narayanan Nadar’s case and there is no case or
evidence of the said relationship being extinguished by the decree of a
court or act of the parties.
13. The decisions in Gnanabharanam Muthiah v.
Soosamuthu Maryaviswasam Nadar and another (1947
TLR 558), Kumaramkari Devaswom v. Chacko (1960 KLT
S.A. No.361 of 2001
-: 30 :-
800) and Neelakanta Pillai v. Madhavan Nair (1965 KLT
537) took the view that when the mortgagee obtained the registry
after an open fight with the mortgagor, question of application of
Sec.90 of the Trust Act did not arise. In Narayanan Nadar’s case
though the reference order (S.A. No.450 of 1968 dated 11.1.1971)
referred to the application of Sec.90 of the Trust Act also, the Full
Bench did not advert to the question of application of Sec.90 of the
Trust Act. According to learned counsel for contesting defendants,
therefore, the decisions in Gnanabharanam Muthaiah’s case,
Kumarankari Devaswom’s case and Neelakanta Pillai’s case
should govern the field.
14. But, it is pertinent to note from Narayanan Nadar’s case
that what the Full Bench Bench observed is that:
“…..in this view we do not think it
necessary to consider the question whether the
policy of the Government in enacting Rule 6(2)
was to confer the benefit of the registry in all
cases on the mortgagee in possession to the
exclusion of the mortgagor and thus exclude
the operation of S.90 of the Indian Trust Act”.
It was observed that the question whether the registry will enure to
S.A. No.361 of 2001
-: 31 :-
the benefit of the mortgagee or not will have to be decided in a fresh
suit. That observation followed the finding that (even) in respect of
kandukrishi thanathu land, registry in the name of mortgagee did not
terminate the mortgagor-mortgagee relationship.
15. Once mortgagor-mortgagee relationship is created, that
has to be determined either by operation of law, a decree of court or
by act of the parties. Possession of the mortgaged property by the
mortgagor or mortgagee if not inconsistent with the rights of the other
party under the terms of the mortgage cannot be adverse to such
party. A mortgagee or his successor cannot so far as the mortgage
subsists claim title adverse to mortgagor, as the mortgagee is deemed
to be in possession of the property for and on behalf of the mortgagor
and not independently till redemption of mortgage by the mortgagor.
In law, he is estopped from denying the title of the mortgagor and
setting up an adverse tittle in himself unless he has relinquished
possession of the mortgaged property and has further entered into
possession of it under a different status and title. Therefore it should
depend on the nature of the right the mortgagee is asserting while
entering the mortgaged property to ascertain whether his possession
is adverse to the mortgagor or not. In the absence of evidence to
show that the nature and character of possession by the mortgagee
S.A. No.361 of 2001
-: 32 :-
has changed, it must be held that he continued to possess the
property on behalf of the mortgagor. But, there may be circumstances
where mortgagee in possession may prescribe against the mortgagor.
Based on the above broad principles, I shall consider whether
defendant No.1 was holding the property adverse to the plaintiff from
the time of Ext.B1.
16. In this case defendant No.1 got possession of the property
under a valid usufructuary mortgage and hence his possession has a
lawful origin. Exhibit B1 is the certified copy of the proceedings of
the Board of Revenue (L.R.) dated 22.9.1971 in the Revision Petitions
filed by the plaintiff and defendant No.1 against the dismissal of their
respective appeals by the District Collector who confirmed the
dismissal of their applications for registry by the Tahsildar concerned.
The authority which passed Ext.B1 order stated thus:
“These revision petition relates to the
registry of 11 acres 66 cents of kandukrishy
Land in Sy.Nos.212/2, 210/6A, 211/2A, 213/1A
and 210/5 of Chinnemkari Village in Thandaper
Nol.51/23 standing in the name of one
Thomman Jacob. The land was originally
kandukrishy pattom in tenure. But it was
subsequently released and Shri Thomman
S.A. No.361 of 2001
-: 33 :-Jacob, the present Thandaper holder bid the
same in auction in the year 1115 M.E. The
lease was granted to the auction purchaser from
24.4.1115 M.E. Patta was also issued to him as
per the rules then inn force and he became the
Thandaper holder. Shri Thomman Jacob sold his
right over the property to Shri Mathai Mathew as
per sale deed No.784 dated 11.7.1955. But the
Thandaper was not changed. Shri Mathai
Mathew executed an otti deed No.282/1957 in
favour of an Ouseph Ouseph chirakkal,
Pallithanathu, Parippanadi on 5.4.1957. Otti
right of Ouseph Joseph who subsequently
purchased by Shri Kesava Kurup Rama Chandra
Kurup, the first Revision Petitioner as per otti
transfer deed No.687 of 1963. Shri Kesava
Kurup Ramachandra Kurup is also in possession
of puravaypa ( ) deed executed in
his favour by Shri Mathai Mathew on 27.6.1963.
The case came up for hearing on
24.8.1970. Both parties were present through
Advocates. No doubt the lands involved in this
case are Thanathu lands as the lands were sold
in public auction to Thomman Jacob and
subsequently patta was granted to him. By
virtue of the documents, viz., Otti deed and the
puravaypa deed Shri Ramachandra Kurup is
entitled for the registry of the land in his favour.
S.A. No.361 of 2001
-: 34 :-
The Collector rejected his request only on the
ground that the registry in his name is not
possible as Shri Ramachandra Kurup got full
right only after 1.10.1957 and therefore the
registry is not possible according to rule 6(2) of
the Kandukrishy Land Assignment Rules. But
the rule has since been amended as per
Government Notification No.27255/No.3/69/LRD
dated 16.7.1970 as a result of the judgment of
the High Court of Kerala in O.P.No.38/66.
Therefore, Shri Ramachandra Kurup is entitled
to the registry of the land in his name. The
Collector’s order No.Kandkukrishy Assignment
20/65 dated 31.10.66 is set aside”
(underline supplied)
No doubt, plaintiff had objected to the grant of registry in the name of
defendant No.1. But going through Ext.B1 it is pertinent to note that
defendant No.1 was not claiming any right adverse to the plaintiff even
in the matter of registry. Instead, he was relying on the mortgage
as well as the puravaypa in his favour to support his claim for
registry. That was recognised by the Board of Revenue and going by
Ext.B1 it would appear that the lower authorities rejected the claim of
defendant No.1 for registry for the mere reason that as per Rule 6(2)
of the Rules as it stood then, defendant No.1 should have got
S.A. No.361 of 2001
-: 35 :-
possession of the land, be it by Otti, sub-lease or mortgage by a
registered document prior to 1.10.1957, the cut off date then
provided under Rule 6(2) of the Rules. It is admitted that defendant
No.1 got possession only after 1.10.1957. Therefore he was not
eligible for registry. It is while so that the Rule was amended and the
cut off date was deleted which enabled defendant No.1 to get the
registry. Exhibit B1 does not show that the plaintiff had objected to
the right of defendant No.1 to get registry for any other reason
whatsoever. May be the objection of the plaintiff for registry in the
name of defendant No.1 was that the latter got possession only after
1.10.1957. At any rate, it is not shown that the ‘open fight’ between
the plaintiff and defendant No.1 was regarding the leasehold right of
the plaintiff or the right of defendant No.1 to possess the property.
Therefore it is difficult to accept the contention of the learned counsel
for contesting defendants that it was after an open fight with the
plaintiff as regards the entitlement of defendant No.1 to get registry
that he got it in his name and hence possession of the property with
defendant No.1 from the date of Ext.B1 is adverse to the plaintiff. On
the other hand even Ext.B1 would show that there was no dispute
regarding mortgage or puravaypa in favour of defendant No.1 and he
was claiming registry only on its basis. Hence I am unable to accept
S.A. No.361 of 2001
-: 36 :-
the contention that from Ext.B1 onwards defendant No.1 was holding
the property adverse to the interest of the plaintiff. I stated earlier
while considering point No.1 that what was given to defendant No.1
by the registry was only the right of the paramount title holder i.e.,
the proprietory right of the Government which did not affect the
leasehold right of the plaintiff which was mortgaged in favour of
predecessor of defendant No.1. It is true that P.W.1 in his evidence
stated that defendant No.1 was holding the property as its owner to
the knowledge of the plaintiff and even constructed a building thereon.
But, in the light of the principles stated above, that evidence is not
sufficient to hold that repudiating right, title and interest of the
plaintiff over that property, defendant No.1 was possessing the same.
As such the contention that the right of the plaintiff if any is lost by
adverse possession and limitation cannot be sustained.
Whether defendant No.1 is entitled to get value of
improvements?:
17. It is lastly contended by learned counsel for contesting
defendants that at any rate contesting defendants are entitled to get
value of improvements effected by defendant No.1. Learned counsel
contended that the first appellate court was not correct in law or on
facts in denying value of improvements to the contesting defendants
S.A. No.361 of 2001
-: 37 :-
relying on the decisions in Krishnan Sankaran v. Sankaran
Channar (1959 KLT 1259) and Krishnan Nair v. Kunjan
Pillai (1969 KLT 457). Learned counsel contended that those
decisions are not applicable to the facts of this case. Learned counsel
for the plaintiff contended that reclamation of the land and
construction of the house are not in terms of the mortgage and
puravaypa created in the name of defendant No.1 and hence whatever
be the suitability of the said acts, contesting defendants are not
entitled to get value of improvements.
18. In Krishnan Sankaran’s case it was held that conversion
of a double crop paddy land into a garden land however desirable it
may be from the point of view of the mortgagee or the tenant, is a
substantial alteration of the character of the holding and it cannot be
described as an “improvement” for awarding compensation. In
Krishnan Nair’s case which was a case of conversion of nilam into
garden land, the same principle was adopted.
19. That, defendants have effected improvements on the land
is not very much in dispute as it is the case of the plaintiff in
paragraph 8 of the plaint that defendant No.1 has made alteration in
the plaint schedule properties violating the terms and intends of the
mortgage and inconsistent with the nature of the lands and in violation
S.A. No.361 of 2001
-: 38 :-
of the existing law prohibiting conversion of paddy lands. In response,
defendant Nos.1 and 2 contended that they have effected
improvements. Learned Sub Judge did not frame an issue whether
defendant No.1 is entitled to get value of improvements. But it is
clear from the averments in the plaint and contentions raised in the
written statements of defendant Nos.1 and 2 that parties went into
trial conscious of the said claim of defendant Nos.1 and 2. Learned
Sub Judge has not considered the question whether defendant Nos.1
and 2 are entitled to get value of improvements. ln appeal that
question was specifically raised on behalf of defendant Nos.1 and 2
and the first appellate court raised point No.5 whether defendant
Nos.1 and 2 are entitled to get value of improvements. Placing
reliance on the decision in Krishnan Sankaran and Krishnan Nair’s
case, referred supra it was held that defendant Nos.1 and 2 are not
entitled to get value of improvements. But that was on the premise
that the land has been reclaimed as against the terms of the mortgage
and the purpose for which the land was given to defendant No.1.
Learned counsel for defendant Nos.1 and 2 contended that the said
decisions are not applicable to the facts of this case since there is no
reclamation of the land as such or conversion into any other type.
Instead, what is involved is only construction of bund (chira) around
S.A. No.361 of 2001
-: 39 :-
the kayal lands and planting trees on those bund to give it further
strength and the construction of house in the raised portion, all
intended for the proper cultivation of the kayal lands.
20. Unfortunately, no commission was taken out at the stage
of preliminary decree proceedings to find out the improvements
effected by defendant Nos.1 and 2. I am told that an Advocate
Commissioner had inspected the lands in the course of final decree
proceedings. Going by the decision referred supra and relied on by the
first appellate court also if there is a reclamation of the land as
purayidom defendant Nos.1 and 2 are not entitled to claim value of
improvements.
21. ‘Improvement’ is defined in Section 2(b) of the Kerala
Compensation for Tenants Improvements Act, 1958 thus:
“2(b) “improvements” means any
work or product of a work which adds to the
value of the holding, is suitable to it and
consistent with the purpose for which the
holding is let, mortgaged or occupied, but does
not include such clearances, embankments,
levellings, enclosures, temporary wells and
water-channels as are made by the tenant in
the ordinary course of cultivation and without
S.A. No.361 of 2001
-: 40 :-
any special expenditure or any other benefit
accruing to land from the ordinary operations of
husbandry”.
In Ext.A3 it is stated as:
“…
………”
The word ” ‘ means levelling the land for paddy
cultivation. Therefore, making the land suitable for cultivation was
permitted. Construction of bund (chira) around the kayal land cannot
be said to be a reclamation of the land and its conversion into
purayidom. It is common knowledge that bund is meant for
protection of cultivation effected in the kayal land and that such
bund is necessary for storage and pumping out water from the
kayal land for the purpose of cultivation. Hence construction of bund
at reasonably sufficient width on the sides of the land cannot be
understood as a work inconsistent with the purpose for which the land
was put in the possession of defendant No.1
22. So far as planting of trees on the bund is concerned, that
can only be understood as meant to give further strength to the bund
since the cluster of roots of the trees go deep into the bund, hold the
S.A. No.361 of 2001
-: 41 :-
bund and prevent soil erosion. That also cannot be understood as an
act contrary to the purpose for which the land was put in the
possession of defendant No.1. Hence, for the said works, defendant
No.1 is entitled to get for value of improvements. The decisions
relied on by the first appellate court to deny value of improvements
cannot apply to the facts of the case. But the contention that the
house was constructed for proper cultivation of the kayal land and
therefore defendant No.1 is entitled to get compensation for
construction of house cannot be accepted. Construction of the house
or reclamation of the house plot cannot be said to be part of
cultivation.
23. The quantum of compensation for the improvements
payable to the contesting defendants will be decided in the final
decree proceedings.
24. No other point arose for consideration.
Second appeal is allowed in part in the following lines:
(i) Such of the defendants who claim under defendant No.1
will get compensation from the plaintiff for construction of bund on
the sides of the suit properties at reasonably sufficient width and the
trees planted on such bund for protection of the cultivation, the
quantum of which will be decided in the final decree proceedings.
S.A. No.361 of 2001
-: 42 :-
(ii) In all other respects, the judgment and decree under
challenge are confirmed.
(iii) Parties shall suffer their respective costs in this appeal.
Civil Miscellaneous Petition Nos.831 of 2001 and 210 and 1420
of 2002 shall stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
S.A. No.361 of 2001
-: 43 :-
THOMAS P.JOSEPH, J.
===================
S.A. NO.361 OF 2001
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J U D G M E N T
13TH MARCH, 2009
