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Thankamma vs Mathai Mathew on 13 March, 2009

Kerala High Court
Thankamma vs Mathai Mathew on 13 March, 2009
       

  

  

 
 
  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.
               = = = = = = = = = = = = = = = = = = = = = = = =
                            S.A. No.361 of 2001
                = = = = = = = = = = = = = = = = = = = = = = = = =
                 Dated this the      13th day of March, 2009

                                J U D G M E N T

———————-

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

S.A. No.361 of 2001
-: 2 :-

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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-: 3 :-

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

S.A. No.361 of 2001
-: 5 :-

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

S.A. No.361 of 2001
-: 6 :-

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

S.A. No.361 of 2001
-: 7 :-

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

S.A. No.361 of 2001
-: 8 :-

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

S.A. No.361 of 2001
-: 9 :-

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

S.A. No.361 of 2001
-: 10 :-

in part by the pattadar, in the name of the

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

S.A. No.361 of 2001
-: 11 :-

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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-: 12 :-

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

S.A. No.361 of 2001
-: 13 :-

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

S.A. No.361 of 2001
-: 14 :-

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

S.A. No.361 of 2001
-: 15 :-

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

S.A. No.361 of 2001
-: 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

S.A. No.361 of 2001
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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

S.A. No.361 of 2001
-: 18 :-

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

S.A. No.361 of 2001
-: 19 :-

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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-: 20 :-

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
-: 22 :-

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

S.A. No.361 of 2001
-: 23 :-

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

S.A. No.361 of 2001
-: 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
===================

J U D G M E N T

13TH MARCH, 2009

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