{"id":174475,"date":"2009-03-13T00:00:00","date_gmt":"2009-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thankamma-vs-mathai-mathew-on-13-march-2009"},"modified":"2014-02-07T03:51:23","modified_gmt":"2014-02-06T22:21:23","slug":"thankamma-vs-mathai-mathew-on-13-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thankamma-vs-mathai-mathew-on-13-march-2009","title":{"rendered":"Thankamma vs Mathai Mathew on 13 March, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thankamma vs Mathai Mathew on 13 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 361 of 2001(B)\n\n\n\n1. THANKAMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. MATHAI MATHEW\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.G.PARAMESWARA PANICKER (SR.)\n\n                For Respondent  :SRI.K.S.HARIHARAPUTHRAN\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :13\/03\/2009\n\n O R D E R\n                           THOMAS P.JOSEPH, J.\n               = = = = = = = = = = = = = = = = = = = = = = = =\n                            S.A. No.361 of 2001\n                = = = = = = = = = = = = = = = = = = = = = = = = =\n                 Dated this the      13th day of March, 2009\n\n                                J U D G M E N T\n<\/pre>\n
                                ———————-\n<\/p>\n
\n     Defendant Nos.2, 5, 6 and 8 have preferred this second appeal<\/p>\n
on the following substantial questions of law:<\/p>\n
                  \"(1)    Has not the registry of the suit\n\n            properties which are             kandukrishi thanathu\n\n            lands         in the name of defendant No.1\n\n<\/pre>\n
            extinguished the right, title and interest of the<\/p>\n
            plaintiff in the suit properties and does the<\/p>\n
            decision in Chuppan Nadar Narayanan<\/p>\n
            Nadar v. Kumaran Kochummini and<\/p>\n
            others<\/a>         (1971         KLT          440)  require<\/p>\n
            reconsideration?\n<\/p>\n
                  (2) Does such registry enure to the<\/p>\n
            benefit of the      plaintiff even when defendant<\/p>\n
            No.1 obtained such registry after an open fight<\/p>\n
            with the plaintiff?\n<\/p>\n
                  (3) If the registry does not enure to the<\/p>\n
            benefit of the plaintiff, has not the defendants<\/p>\n
            prescribed title by adverse possession and law<\/p>\n
            of limitation?\n<\/p>\n
                  (4)     Are not the improvements made by<\/p>\n
            defendant No.1 enhancing the value of the land<\/p>\n
S.A. No.361 of 2001
\n                                     -: 2 :-<\/span><\/p>\n
             for which compensation is due to defendant<\/p>\n
             No.1?\n<\/p>\n<\/p>\n
      2.     Parties are referred to as plaintiff and defendants for the<\/p>\n
sake of convenience.\n<\/p>\n
      3.     Plaintiff filed the suit for redemption of mortgage in respect<\/p>\n
of the suit properties which, it is not disputed before me are<\/p>\n
‘kandukrishi       thanathu lands’.       According to the   plaintiff, suit<\/p>\n
properties     formed part of kandukrishi lands (home farm lands of<\/p>\n
erstwhile Maharaja of Travancore State). It was given on a permanent<\/p>\n
lease to one Thomman Jacob (Exhibit A1 series are the delivery lists<\/p>\n
produced to prove the auction of the said properties in favour of<\/p>\n
Thomman Jacob). While he was in possession and enjoyment of the<\/p>\n
said properties he assigned his leasehold right in favour of the plaintiff<\/p>\n
as per Ext.A4, assignment deed No.784\/1955 dated 11.7.1955.<\/p>\n
Plaintiff mortgaged his leasehold right in favour of one Ouseph Ouseph<\/p>\n
as per Ext.A2, mortgage deed No.282\/57 dated 5.4.1957.             Ouseph<\/p>\n
Ouseph assigned his (mortgagee’s) right in favour of defendant No.1<\/p>\n
as per document No.687\/1963 (which is not produced in the case).<\/p>\n
Plaintiff thereafter created puravaypa (another mortgage)               for<\/p>\n
Rs.6,500\/- over his leasehold right in favour of defendant No.1 as per<\/p>\n
S.A. No.361 of 2001
\n                                  -: 3 :-<\/span><\/p>\n
Ext.A3, deed No.812\/1963 dated 27.6.1963 fixing the period of<\/p>\n
redemption as 12 years.            In the meantime the Maharaja of<\/p>\n
Travancore promulgated kandukrishi proclamation of 1154 M.E.<\/p>\n
transferring and surrendering right, title and interest in all kandukrishi<\/p>\n
lands to the Government of Travancore. Government of Travancore<\/p>\n
framed and published Rules for assignment of registry of kandukrishi<\/p>\n
lands on 11.10.1958 providing for assignment of kandukrishi lands to<\/p>\n
the lessees, assignees or mortgagees. In pursuance of that publication<\/p>\n
plaintiff and defendant No.1 applied for       assignment individually.<\/p>\n
Ultimately, Government preferred the claim of defendant No.1 and<\/p>\n
granted him registry.      According to the plaintiff, defendant No.1<\/p>\n
cannot take that advantage in derogation of his right by virtue of his<\/p>\n
position as mortgagee under the plaintiff and hence the registry of the<\/p>\n
lands in his favour enured to the benefit of the plaintiff. Defendant<\/p>\n
No1. is holding that right as trustee of the plaintiff. Defendant No.1 is<\/p>\n
therefore bound to transfer the property on receipt of the mortgage<\/p>\n
and puravaypa amounts as stipulated in the deeds above referred.<\/p>\n
Defendants 2 to 5 are impleaded in the suit as subsequent<\/p>\n
encumbrancers.      Defendant Nos.1 and 2           while admitting the<\/p>\n
transactions stated by plaintiff contended that defendant No.1 applied<\/p>\n
for registry of the suit properties in his name before the        Special<\/p>\n
S.A. No.361 of 2001
\n                                   -: 4 :-<\/span><\/p>\n
Tahsildar concerned, but that application was rejected.        The appeal<\/p>\n
preferred to the District Collector was rejected. Hence defendant<\/p>\n
No.1 preferred a revision before the Government (Board of Revenue).<\/p>\n
That revision was allowed as per Ext.B1 order dated 22.9.1971. The<\/p>\n
registry of land was granted in the name of defendant No.1. Exhibit B2<\/p>\n
is the pattayam No.A3-8022\/1971.         Plaintiff challenged that  order<\/p>\n
in this Court in Writ Petition No.729 of 1972 but it was dismissed as<\/p>\n
per Ext.B3, order dated 20.12.1974.       The suit is therefore barred by<\/p>\n
the principles of res judicata. Defendant No.1 became the absolute<\/p>\n
owner of the properties       as per Ext.B1, order of the Government<\/p>\n
(Board of Revenue) granting registry in his name. In exercise of his<\/p>\n
absolute right over the suit properties defendant No.1 transferred 2.5<\/p>\n
acres to defendant No.2, 3 acres to Maniyamma, daughter of<\/p>\n
defendant No.1 and another 2 acres to Sreedevi Amma who are<\/p>\n
necessary parties to this litigation. The creation of mortgage was void<\/p>\n
and not binding on the Government.            Defendants 1 and 2 have<\/p>\n
constructed a house in the suit properties more than 20 years back<\/p>\n
spending around Rs.5 lakhs. Another sum of Rs.5 lakhs was spent for<\/p>\n
reclamation of the lands. It is incorrect to say that defendant No.1<\/p>\n
obtained registry in favour of plaintiff. Plaintiff was only a tenant-at-<\/p>\n
will in respect of the suit properties. Defendant No.1 obtained registry<\/p>\n
S.A. No.361 of 2001
\n                                  -: 5 :-<\/span><\/p>\n
as per Ext.B1 in derogation of that right. Right if any of the plaintiff is<\/p>\n
lost by adverse possession and limitation.\n<\/p>\n
      4.     Learned Munsiff framed issues whether the suit is barred<\/p>\n
by res judicata, whether plaintiff has subsisting right over the suit<\/p>\n
properties, whether he is entitled to redeem the mortgage and<\/p>\n
whether his right is lost by adverse possession and limitation. Apart<\/p>\n
from the exhibits above referred parties have adduced oral evidence<\/p>\n
as well. Learned Munsiff answered the issues in favour of the plaintiff<\/p>\n
and granted decree for redemption of the mortgage. That judgment<\/p>\n
and decree      were confirmed by the first appellate court. The first<\/p>\n
appellate court also rejected the claim of defendant No.1 for value of<\/p>\n
improvements.       Hence this appeal at the instance of defendant No.2<\/p>\n
and 5, 6 and       8 who are assignees and       legal representatives of<\/p>\n
defendant No.1.\n<\/p>\n
Has not the registry in the name of defendant No.1<\/p>\n
extinguished the right, title and interest of the plaintiff?:<\/p>\n
      5.     It is contended by the learned counsel for defendants 2,<\/p>\n
5, 6 and 8 that the registry of the suit properties (kandukrishi thanathu<\/p>\n
lands) in favour of defendant No.1 amounted to automatic extinction of<\/p>\n
whatever right the plaintiff had over the said properties. According to<\/p>\n
the learned counsel, the decision in Chuppan Nadar Narayanan<\/p>\n
S.A. No.361 of 2001
\n                                  -: 6 :-<\/span><\/p>\n
Nadar v. Kumaran Kochummini and Others<\/a> (1971 KLT 440)<\/p>\n
require reconsideration in that, though the Full Bench was considering<\/p>\n
the nature and character of       registry   in  respect of kandukrishi<\/p>\n
‘thanathu’ lands, all the decisions referred to by the Full Bench related<\/p>\n
to the registry of kandukrishi ‘patta’ lands which is different in nature<\/p>\n
and   character    from the registry    of kandukrishi ‘thanathu’ lands.<\/p>\n
According to the learned counsel, the Full Bench has not laid down<\/p>\n
the correct law in respect of the registry of kandukrishi ‘thanathu’<\/p>\n
lands.   Learned counsel for the contesting respondent (plaintiff) in<\/p>\n
response stated that what was assigned by Thomman Jacob in favour<\/p>\n
of the plaintiff as per Ext.A4 is the leasehold right over the suit<\/p>\n
properties and what the       plaintiff mortgaged in favour of Ouseph<\/p>\n
Ouseph as per Ext.A2 and what defendant No.1 got from Ouseph<\/p>\n
Ouseph as per document No.687\/1963 is also that leasehold right.<\/p>\n
The puravaypa created by the plaintiff in favour of defendant No.1 as<\/p>\n
per Ext.A3 also is over the leasehold right of the plaintiff. Registry is<\/p>\n
only in respect of the proprietory right of the Government. Therefore<\/p>\n
the contention that the registry     of suit properties in the name of<\/p>\n
defendant No.1 extinguished the leasehold         right  of the plaintiff<\/p>\n
cannot be sustained.\n<\/p>\n
      6.     Kandukrishi lands are described in the Travancore State<\/p>\n
S.A. No.361 of 2001
\n                                 -: 7 :-<\/span><\/p>\n
Manual by V. Nagam Aiya, Vol.III at page 325. Kandukrishi lands are<\/p>\n
described as the home farm of the sovereign and are cultivated by<\/p>\n
the tenant on behalf of the sovereign himself. The tenants holding<\/p>\n
such lands are tenants-at-will who theoratically do not possess even<\/p>\n
the right of occupancy though as a matter of fact they are not<\/p>\n
interfered with so long as the Sirkar    dues are paid. In Travancore<\/p>\n
Manual by T.K. Velupillai, Vol.III at page 193 kandukrishi lands are<\/p>\n
described as sthanam properties of H.H. the Maharaja, i.e., the home<\/p>\n
farm of the sovereign and are cultivated by the tenants. Tenants have<\/p>\n
no right of property. They are mere tenants at will. But they are not<\/p>\n
interfered with so long as the dues are paid.       The policy of the<\/p>\n
Government is to bring the revenue registry of the alienated<\/p>\n
kandukrishi lands into accord with actual possession by transferring<\/p>\n
registry in favour of the alienees in possession. It is also stated that<\/p>\n
kandukrishi lands are either ‘pattom’ or ‘thanathu’. Pattom lands are<\/p>\n
those for which pattas were issued at the time of the settlement while<\/p>\n
thanathu lands are those for which no pattas are issued at the time of<\/p>\n
settlement and which are enjoyed by the tenants either on payment of<\/p>\n
the rent fixed at settlement or on kuthakapattom          given by the<\/p>\n
kandukrishi department.      Generally, tenants of kandukrishi pattam<\/p>\n
lands when they are renewed are entitled to get compensation for<\/p>\n
S.A. No.361 of 2001
\n                                 -: 8 :-<\/span><\/p>\n
their improvements while the tenants of the thanathu lands cannot as<\/p>\n
a matter of right claim compensation. The Travancore Government<\/p>\n
framed Rules for kandukrishi lands on 8th March 1934.       Rule 2(a) of<\/p>\n
the Rule says that kandukrishi lands are of two kinds; kandukrishi<\/p>\n
thanathu lands and kandukrishi pattam lands.       Rule 3 states that<\/p>\n
kandukrishi Tahsildar is competent to enquire and effect the transfer<\/p>\n
of kandukrishi holdings in the revenue registers. But only transfers by<\/p>\n
inheritance and family partition shall be recognised in the case of<\/p>\n
kandukrishi thanathu lands.     Other kinds  of transfer in the case of<\/p>\n
such lands will entail forfeiture of the tenancy.     In other words,<\/p>\n
kandukrishi pattam lands could be transferred by the tenant in any<\/p>\n
lawful manner so far as kandukrishi thanathu lands are concerned,<\/p>\n
transfer is permitted by inheritance and family partition alone and<\/p>\n
Rule 3 specifically provides that any    other mode of transfer in the<\/p>\n
case of kandukrishi thanathu lands would entail forfeiture of the<\/p>\n
tenancy. Rule 4 of the Rules authorises the kandukrishi Tahsildar to<\/p>\n
issue pattas for kandukrishi pattom lands when he is satisfied that they<\/p>\n
have changed hands by virtue of outright sale voluntary or involuntary<\/p>\n
gift, partition and testamentary and intestate succession or when he,<\/p>\n
by virtue of the rules enters on behalf of the Sirkar into fresh lease<\/p>\n
arrangements       in regard thereto.     As regards the nature and<\/p>\n
S.A. No.361 of 2001
\n                                 -: 9 :-<\/span><\/p>\n
character of tenancy in respect of kandukrishi lands it is stated in Rule<\/p>\n
61 of Travancore Land Revenue Manual, Vol.III, page 34 that<\/p>\n
kandukrishi tenants include pattom, thanathu, irayaili, etc., and that<\/p>\n
pattas had been issued in the settlement only to the holders of pattom<\/p>\n
lands. Kandukrishi tenants whether they hold pattom or thanathu<\/p>\n
lands are mere tenants-at-will.   The distinction between ‘pattom’ and<\/p>\n
‘thanathu’ lands,    according to learned counsel for the contesting<\/p>\n
defendants can be discerned from Section 8 of the Travancore Code of<\/p>\n
Civil Procedure as well.    That provision created a bar on suits in<\/p>\n
relation to kandukrishi lands unless the plaint is accompanied by an<\/p>\n
order of the Government to seek redressal in civil courts.    Exemption<\/p>\n
was granted to      registered   holders of kandukrishi pattom lands<\/p>\n
recognised by Government to recover the land from a mortgagee or<\/p>\n
lessee or to evict a trespasser.\n<\/p>\n
      7.     The Government framed Kandukrishi Land Assignment<\/p>\n
Rules (for short, “the Rules”)    in the year 1958.      Rule 3 defines<\/p>\n
kandukrishi land including kandukrishi ‘pattom’ and kandukrishi<\/p>\n
‘thanathu’ lands. Rule 5 states as under:\n<\/p>\n<\/p>\n
                   “5(1) Kandukrishi pattom land shall be<\/p>\n
             registered in the name of the pattadar, or if<\/p>\n
             there has been outright assignment in whole or<\/p>\n
S.A. No.361 of 2001
\n                                  -: 10 :-<\/span><\/p>\n
             in part by the pattadar, in the name of the<\/p>\n
             assignee to the extent necessary or if there has<\/p>\n
             been a partition of the land or inheritance by<\/p>\n
             succession or acquisition of title by decree of<\/p>\n
             Court, in the name of the person deriving title<\/p>\n
             as per such partition or succession or decree.<\/p>\n<\/blockquote>\n
                   (2)   Mortgagees       or   lessees   from<\/p>\n
             pattadars of pattom lands or their assignees or<\/p>\n
             representatives will continue to enjoy the<\/p>\n
             existing rights even after assignment.<\/p>\n<\/blockquote>\n
                   (3)   Notwithstanding anything contained<\/p>\n
             in sub-rule (1) where a lessee or sub lessee is<\/p>\n
             in possession of Kandukrishy Pattom land and<\/p>\n
             the pattadar or any other person entitled to<\/p>\n
             assignment on registry under sub-rule (1) has<\/p>\n
             not filed an application for such assignment<\/p>\n
             before the date specified in sub-rule (a) of Rule<\/p>\n
             10, the land shall, subject to the provisions of<\/p>\n
             sub-rule (c) of Rule 10, be registered in the<\/p>\n
             name of such lessee or sub-lessee, as the case<\/p>\n
             may be”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
According to the learned counsel for contesting defendants, Rule 5<\/p>\n
which relates to kandukrishi pattom land            admits   transfer of<\/p>\n
possession in any form and Rule 5(2) indicate that the registry in<\/p>\n
respect of the pattom land recognised the right of the original lessee<\/p>\n
S.A. No.361 of 2001
\n                                   -: 11 :-<\/span><\/p>\n
who transferred possession as is clear from Rule 5(2) that mortgagees<\/p>\n
or lessees from pattadars of pattom lands or their assignees or<\/p>\n
representatives will continue to enjoy the existing rights even after<\/p>\n
assignment. Rule 6 dealing with ‘thanathu’ lands reads as under:<\/p>\n
                   “6.    (1)   Subject to the provisions of<\/p>\n
             sub-rule (2) Kandukrishi Thanathu land shall be<\/p>\n
             registered in the name of the lessee, and if<\/p>\n
             there has been a partition of the land or<\/p>\n
             inheritance by succession or acquisition of title<\/p>\n
             by decree of Court, in the name of the person<\/p>\n
             deriving title as per such partition or succession<\/p>\n
             or decree.\n<\/p><\/blockquote>\n
                   (2)(a)       Where       a    lessee    has<\/p>\n
             transferred the possession of thanathu land to<\/p>\n
             another person whether by sale, sub-lease, Otti,<\/p>\n
             mortgage or any other transaction under a<\/p>\n
             registered    document     the   land   shall  be<\/p>\n
             registered in the name of such transferee.<\/p>\n<\/blockquote>\n
                   (b)    in the case of thanathu lands<\/p>\n
             involved in civil suits, such lands shall be<\/p>\n
             registered in the name of the person, or<\/p>\n
             persons deriving title according to the final<\/p>\n
             decisions in such civil suits”.<\/p><\/blockquote>\n
      8.     Learned counsel for contesting defendants contends that<\/p>\n
S.A. No.361 of 2001
\n                                  -: 12 :-<\/span><\/p>\n
Rule 6(2a) does not contemplate or recognise the presence of the<\/p>\n
transferor or preserve his right and interest but the right is conferred<\/p>\n
on the transferee who is in possession, be it by a lease, sub-lease, Otti,<\/p>\n
mortgage or any other transaction but by a registered instrument.<\/p>\n
Learned counsel contends that Rule 6(2a) extinguished the right of the<\/p>\n
transferor in ‘thanathu’ land once the registry is granted in the name<\/p>\n
of the transferee who is in possession under a registered instrument.<\/p>\n
According to the learned counsel though           tenancy in respect of<\/p>\n
kandukrishi pattom and thanathu lands are nothing but tenancy-at-<\/p>\n
will, the tenant of the kandukrishi pattom land enjoys a better right in<\/p>\n
that he will not normally be evicted so far as he paid the Sirkar dues<\/p>\n
and, he is entitled to registry at the time of settlement if found in<\/p>\n
possession and Rule 5(2) also admits         the right   of the transferor<\/p>\n
whereas in the case of kandukrishi thanathu lands, though that also is<\/p>\n
a tenancy-at-will, person in possession is not entitled to get registry at<\/p>\n
the time of settlement, Sirkar is free to dispossess him at any point of<\/p>\n
time even without payment of compensation and that it is the absolute<\/p>\n
right of the Sirkar to grant the registry in favour of any person found in<\/p>\n
possession of kandukrishi thanathu lands even in derogation of the<\/p>\n
right of any other person who was earlier in possession. Once such<\/p>\n
registry is granted, it extinguished the right of the former possessor if<\/p>\n
S.A. No.361 of 2001
\n                                  -: 13 :-<\/span><\/p>\n
any. To substantiate the above contentions learned counsel placed<\/p>\n
reliance on the following decisions:\n<\/p>\n
       (i) Sankaranarayana Panikar                  and Others v.\n\nKunjan Pillai and Others              (XXVI TLR 184): In this case a\n\nTharwad was in possession of      kandukrishi (it is not clear whether it\n\nwas pattom or thanathu) land.         That land was mortgaged to the\n\n<\/pre>\n
Tharwad of the defendants. Government registered the land in the<\/p>\n
name of defendant No.1 at the time of settlement. Plaintiffs wanted to<\/p>\n
get back the        land.   Defendants contended that the registry<\/p>\n
extinguished the title of the Tharwad of the plaintiffs. It was held that<\/p>\n
the holder of kandukrishi lands (home farm lands of the sovereign) is<\/p>\n
tenant-at-will and has no right to alienate the property by sale, gift,<\/p>\n
mortgage or in any other way without the previous consent of the<\/p>\n
Sirkar. The Sirkar has the absolute right of granting the property to<\/p>\n
any one it likes and the registry extinguished the title if any which the<\/p>\n
plaintiffs had over the properties and conferred title on defendant<\/p>\n
No.1. It was held that the Tharwad of the plaintiffs had no subsisting<\/p>\n
title to the land on the date of the suit.\n<\/p>\n
       (ii) Parameswaran             Gonvindan           v.    Ouseph<\/p>\n
Geevarghese Kathanar (XXIX TLR 100): In this case the<\/p>\n
S.A. No.361 of 2001
\n                                  -: 14 :-<\/span><\/p>\n
owner of        equity of redemption over the suit properties sought<\/p>\n
redemption of mortgage.        The       mortgagee’s   interest through<\/p>\n
intermediate transfers vested in the defendant. Defendant contended<\/p>\n
that the properties are kandukrishi lands, that patta in respect of the<\/p>\n
properties had been granted to him by the Sirkar and hence the suit is<\/p>\n
not maintainable.     It was argued that the grant of patta was issued<\/p>\n
behind the back of the plaintiff.    Defendant relied on the decision in<\/p>\n
Sankaranarayana Panikar’s case. Court found that assuming that<\/p>\n
the plaintiff was not heard before the Sirkar decided to grant patta to<\/p>\n
the defendant in respect of the kandukrishi lands, it made no<\/p>\n
difference and that holders of kandukrishi lands are merely tenants-at-<\/p>\n
will who have no right of alienating the properties without the previous<\/p>\n
consent of the Sirkar. The grant of patta operated as extinguishment<\/p>\n
of the title of any other person in such lands.\n<\/p>\n
      (iii) Ouseph Abraham v. Kuncherira Kuncheria<\/p>\n
and Another (XXII TLJ 813):                    This decision concerns<\/p>\n
kandukrishi pattam lands. Property was held jointly by the father of<\/p>\n
defendant No.1 and the paternal grant father of the plaintiff. When the<\/p>\n
plaintiff was a minor another person representing him as his next<\/p>\n
friend executed a sale deed in favour of defendant No.1 in respect of<\/p>\n
the said properties. Following that, defendant No.1 got registry of the<\/p>\n
S.A. No.361 of 2001
\n                                  -: 15 :-<\/span><\/p>\n
land in his name. Plaintiff challenged the sale deed executed on his<\/p>\n
behalf as void, contending that the person who represented him was<\/p>\n
not his next friend or competent to do so. It was held that though<\/p>\n
there was perhaps a fraud on the plaintiff (regarding the execution of<\/p>\n
the sale deed) he cannot set aside the registry which the Sirkar was<\/p>\n
competent to grant or withhold from any one. Reliance was placed on<\/p>\n
the decision in     Sankaranarayana Panikar’s case and Ouseph<\/p>\n
Abraham’s case.\n<\/p>\n
      (iv) Subramonian Kesavan Empran, died, his heir<\/p>\n
Kesavan Narayanan Empran v. Krishnan Govindan<\/p>\n
Plappalli and Another (XXII TLJ<\/a> 968): In that case question<\/p>\n
arose whether the right of the person in possession of kandukrishi<\/p>\n
lands could be attached and sold in execution of a decree against him.<\/p>\n
The Full Bench held that the person in possession has a limited right<\/p>\n
(in respect of the kandukrishi pattam lands) to be in possession until<\/p>\n
he is evicted by the Sirkar for non-payment of dues and that such right<\/p>\n
could be attached and sold. The Full Bench observed thus:<\/p>\n
                   “It has no doubt been ruled repeatedly<\/p>\n
             by this Court that the kandukrishi tenant is only<\/p>\n
             a tenant-at-will under the Crown. But even so it<\/p>\n
S.A. No.361 of 2001
\n                                   -: 16 :-<\/span><\/p>\n
             cannot be held that it is not an estate known to<\/p>\n
             the law or that it creates no right or interest at<\/p>\n
             all. No ruling has been cited in support of the<\/p>\n
             contention    that the right of a tenant-at-will<\/p>\n
             cannot be attached and sold. Such a tenant<\/p>\n
             has a right which is recognised by the law and<\/p>\n
             is available against all the world except the<\/p>\n
             landlord and even as against him his position is<\/p>\n
             not like that of a mere tenant by sufferance<\/p>\n
             while the former has its origin in a contract of<\/p>\n
             letting (express or implied) the latter cannot<\/p>\n
             arise by contract and is in fact only a mere<\/p>\n
             fiction of the law to prevent what would<\/p>\n
             otherwise be an act of trespass. A tenancy-at-<\/p>\n
             will thus clearly gives rise to reciprocal rights<\/p>\n
             and liabilities (Fao, Landlord and Tenant, Fifth<\/p>\n
             Edition, pages 2, 445, 651)”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
According to the learned counsel for the contesting defendants that<\/p>\n
limited right (even if there be any) is available only in respect of<\/p>\n
kandukrishi pattom lands and not           thanathu lands.     It is also<\/p>\n
contended by the learned counsel that even in the light of the Full<\/p>\n
Bench decision, right of Sirkar even        with respect to   kandukrishi<\/p>\n
pattom lands remained unaffected, as it was before.<\/p>\n
      (v) Gnanabharanam Muthiah v. Soosamuthu<\/p>\n
S.A. No.361 of 2001
\n                                 -: 17 :-<\/span><\/p>\n
Maryaviswasam Nadar (1947 TLR 558):                       This decision<\/p>\n
concerned unregistered puduval land. But according to the learned<\/p>\n
counsel for the contesting defendants, the        reasoning applies to<\/p>\n
kandukrishi lands also. Plaintiff reclaimed the said land and made<\/p>\n
some improvements and then leased the same to defendant No.1 for<\/p>\n
a period of 10 years.     Even before the expiry of the said period,<\/p>\n
plaintiff wanted to eject defendant No.1, the lessee from the said land<\/p>\n
on the ground of non-payment of rent and repudiation of obligations<\/p>\n
undertaken under the lease agreement. Defendant No.1 questioned<\/p>\n
the right of the plaintiff to claim ejectment.     When the suit was<\/p>\n
pending Sirkar granted kuthakapattam lease in respect of the said<\/p>\n
property in the name of the defendants. The court pointed out that<\/p>\n
the grant terminated the rights of the lessor though the lessee was the<\/p>\n
grantee. It was also held that the Sirkar in exercise of its unfettered<\/p>\n
discretion granted the kuthakapattom right to defendant No.1 which<\/p>\n
the court cannot nullify. The principle was held applicable where the<\/p>\n
relationship between the     parties is one of landlord and tenant or<\/p>\n
mortgagor and mortgagee or the like. Grant of kuthakapattom lease by<\/p>\n
the Sirkar (in favour of the defendant) obviously means eviction by<\/p>\n
the paramount title holder.\n<\/p>\n
      (vi) Neelakanta Pillai v. Madhavan Nair<\/a> (1965<\/p>\n
S.A. No.361 of 2001
\n                                 -: 18 :-<\/span><\/p>\n
KLT 356): The suit properties were kandukrishi pattam lands. It was<\/p>\n
held that the occupant or cultivator of kandukrishi lands is regarded as<\/p>\n
a tenant-at-will and it is an absolute right of the Government to grant<\/p>\n
patta in respect of kandukrishi lands to whomsoever it pleases and<\/p>\n
such grant will extinguish all prior rights of the occupant.        It is<\/p>\n
impossible to hold that the tenant holds such lands as a mere tenant-<\/p>\n
at-will with no powers of disposal at all over them. The rights of the<\/p>\n
occupant of such lands constitute valuable right. If the result of the<\/p>\n
grant of patta in respect of such lands is to extinguish antecedent<\/p>\n
rights of the occupant, it is clear that such grant can only be in<\/p>\n
derogation of the rights of the occupant.       Learned counsel for the<\/p>\n
contesting defendants would draw a distinction that the case relates<\/p>\n
to kandukrishi pattom lands in respect of which there was some right<\/p>\n
for the lessee unlike in the case of kandukrishi thanathu lands where<\/p>\n
once    registry is given to the person in possession, it amounts to<\/p>\n
eviction of the prior owner by the paramount title holder.<\/p>\n
      (vii) Meenakshi Amma v. Eappen (1966 KLT<\/p>\n
1158):      This case concerned kandukrishi pattom lands.         In the<\/p>\n
partition in the Tharwad, property was allotted to the plaintiff. Patta<\/p>\n
was given mistakenly in the name of the Tharwad of the defendant.<\/p>\n
Defendant contended that the       land was in the possession of his<\/p>\n
S.A. No.361 of 2001
\n                                  -: 19 :-<\/span><\/p>\n
Tharwad at the time of revenue settlement and patta was rightly<\/p>\n
issued to his Tharwad. In the suit filed by the plaintiff for recovery it<\/p>\n
was found that whatever right the plaintiff had over the suit property<\/p>\n
stood extinguished on the Government giving registry in the name of<\/p>\n
the defendant.\n<\/p>\n
      (viii)       Chuppan Nadar Narayanan Nadar v.\n<\/p>\n
Kumaran Kochummini and Others (1971 KLT 440).\n<\/p>\n
Property concerned was kandukrishi thanathu lands.         Suit was for<\/p>\n
redemption of a mortgage created in 1097 M.E. executed in favour of<\/p>\n
the predecessor-in-interest of the defendant.     Pending suit, Special<\/p>\n
Tahsildar passed order granting registry of the property to the<\/p>\n
defendant.     Defendant    contended that plaintiffs lost their right to<\/p>\n
redeem the mortgage as the registry did not enure to the benefit of<\/p>\n
the plaintiffs.    That contention was overruled by the courts below.<\/p>\n
When the Second appeal came for hearing before a learned Single<\/p>\n
Judge, the matter was ordered to be placed before the Honourable<\/p>\n
Chief Justice for reference to a Full Bench as there appeared to be<\/p>\n
conflict between the decisions of the Division Bench in Neelakanta<\/p>\n
Pillai’s case      and the    decision by the learned Single Judge in<\/p>\n
Kumarankari Devaswom’s case. It was admitted that predecessor-<\/p>\n
in-interest of the plaintiff who executed the mortgage was a lessee of<\/p>\n
S.A. No.361 of 2001
\n                                  -: 20 :-<\/span><\/p>\n
the suit property. The Full Bench held:\n<\/p>\n<\/p>\n
                   “As the mortgage was and could only be a<\/p>\n
            mortgage on the leasehold interest of the<\/p>\n
            mortgagor,    the   suit  was   really  one   for<\/p>\n
            redemption and for recovery of the possessory<\/p>\n
            interest of the lessee in the property.       The<\/p>\n
            interest of a lessee of     kandukrishi thanathu<\/p>\n
            land has been characterised as a ‘valuable<\/p>\n
            interest’ in Neelakanta Pillai v. Madhavan<\/p>\n
            Nair<\/a> (1965 KLT 537) following the decision in<\/p>\n
            Subramonian Kesavan Empran v. Krishnan<\/p>\n
            Govindan Plappalli (22 TLJ, 968 at page<\/p>\n<\/blockquote>\n
            976)      where it was observed that “it was<\/p>\n
            impossible to hold that the tenant held the lands<\/p>\n
            as a ‘mere tenant-at-will with no powers of<\/p>\n
            disposal at all over them”. We do not think that<\/p>\n
            in a suit for redemption of a mortgage on such<\/p>\n
            an interest, the question whether the ‘registry of<\/p>\n
            the land in favour of the mortgagee        would<\/p>\n
            enure to his    benefit or to the benefit of the<\/p>\n
            mortgagor would have any relevance, as the<\/p>\n
            mortgage that is sought to be redeemed is the<\/p>\n
            mortgage of the leasehold interest.     If by the<\/p>\n
            registry the leasehold interest of the mortgagor<\/p>\n
            was determined, and so the mortgagor has<\/p>\n
            ceased to have any interest in the equity of<\/p>\n
S.A. No.361 of 2001
\n                                  -: 21 :-<\/span><\/p>\n
            redemption, namely the leasehold interest, the<\/p>\n
            question might be relevant.          But if by the<\/p>\n
            registry the leasehold interest of the mortgagor<\/p>\n
            was not determined, the lease will continue to<\/p>\n
            subsist and the mortgagor being interested in<\/p>\n
            the equity of redemption, namely the leasehold<\/p>\n
            interest, would be entitled to redeem the<\/p>\n
            mortgage on that interest and                recover<\/p>\n
            possession.   The fact that the mortgagee has<\/p>\n
            obtained the registry, and the fact that even if<\/p>\n
            the registry would enure to his benefit, would<\/p>\n
            not entitle him to resist redemption. In other<\/p>\n
            words, even if it is assumed that the mortgagee<\/p>\n
            became the owner of the property by the<\/p>\n
            registry, the mortgagor would be entitled to<\/p>\n
            redeem the mortgage on the leasehold interest,<\/p>\n
            as the leasehold interest in the property has not<\/p>\n
            been determined. From this point of view, the<\/p>\n
            question whether the registry to the 2nd<\/p>\n
            defendant and others of the land, would enure<\/p>\n
            to the benefit of the plaintiffs is really foreign to<\/p>\n
            the scope of the suit. The 2nd defendant cannot<\/p>\n
            deny the leasehold interest of the predecessor-<\/p><\/blockquote>\n
            in-interest of the plaintiffs at the time of the<\/p>\n
            mortgage.    In other words, the 2nd defendant<\/p>\n
            would be estopped from contending that the<\/p>\n
            mortgagor – the predecessor-in-interest of the<\/p>\n
            plaintiffs – had    no leasehold interest in the<\/p>\n
S.A. No.361 of 2001
\n                                 -: 22 :-<\/span><\/p>\n
            property. If that be so, the 2nd defendant must<\/p>\n
            show that the leasehold interest has been<\/p>\n
            determined either by the order of registry or by<\/p>\n
            a notice to quit by the persons in whose favour<\/p>\n
            the registry was granted in order to resist the<\/p>\n
            suit for redemption.      The registry did not<\/p>\n
            determine the lese. There was no case for the<\/p>\n
            2nd defendant that the leasehold interest of the<\/p>\n
            mortgagor has been determined in accordance<\/p>\n
            with law by the persons in whose favour the<\/p>\n
            registry   was  granted,   and   therefore,   the<\/p>\n
            plaintiffs have lost their equity of redemption<\/p>\n
            which alone would disable them from filing the<\/p>\n
            suit”.\n<\/p>\n
Learned counsel also referred to me a passage in Halsbury’s laws of<\/p>\n
England on relation of landlord and tenant (at page 35) where the<\/p>\n
nature and character of tenancy-at-will is stated.     It is stated that<\/p>\n
tenancy at will may be created by express agreement or by implication<\/p>\n
and it is   determinable at the will of either party.    It is a relation<\/p>\n
personal to the lessor and lessee so that the tenancy determines on<\/p>\n
the death of either party and neither the tenancy nor the reversion can<\/p>\n
be assigned or otherwise disposed of without determining the tenancy.<\/p>\n
Learned counsel contends that in Narayanan Nadar’s case it is<\/p>\n
stated that in the case of kandukrishi thanathu lands registry in favour<\/p>\n
S.A. No.361 of 2001
\n                                 -: 23 :-<\/span><\/p>\n
of the mortgagee in possession does not terminate the mortgagor-<\/p>\n
mortgagee relationship.    All the decisions referred to and relied in<\/p>\n
Narayanan Nadar’s case related to kandukrishi pattom lands the<\/p>\n
nature and tenure of which are entirely different from kandukrishi<\/p>\n
thanathu lands. According to the learned counsel it might be said in<\/p>\n
the light of the decision in Subramonian Kesavan Empran’s case<\/p>\n
(referred supra) that in respect of kandukrishi pattom lands person in<\/p>\n
possession has some valuable right in that until he is evicted by the<\/p>\n
paramount title holder (Government) for non-payment of dues he is<\/p>\n
entitled to remain in possession whereas no such right is conferred a<\/p>\n
the person in possession of kandukrishi thanathu lands.        Learned<\/p>\n
counsel contends that the cardinal distinction between kandukrishi<\/p>\n
thanathu and pattom lands was lost sight of while deciding<\/p>\n
Narayanan Nadar’s case and          that  the decision in Narayanan<\/p>\n
Nadar’s case does not lay down the correct law. Learned counsel<\/p>\n
therefore submitted that in case the decision in Narayanan Nadar’s<\/p>\n
case is found not distinguishable on facts, the matter be placed before<\/p>\n
the Honourable Acting Chief Justice to constitute a Larger Bench to<\/p>\n
reconsider the decision in Narayanan Nadar’s case.<\/p>\n
      9.     In response learned counsel for the plaintiff   contended<\/p>\n
that there is no reason or necessity to reconsider the Full      Bench<\/p>\n
S.A. No.361 of 2001
\n                                -: 24 :-<\/span><\/p>\n
decision in Narayanan Nadar’s case in so far as it lays down the<\/p>\n
correct proposition of law in respect of kandukrishi thanathu lands.<\/p>\n
Learned counsel contended that even in respect of thanathu lands<\/p>\n
Rule 6(2a) of the Rules recognised the presence of mortgagee who is<\/p>\n
in possession of the land and what is assigned to him by the registry is<\/p>\n
not the     right of the mortgagor but, the proprietory right of the<\/p>\n
paramount title holder (Government) and hence the right of the<\/p>\n
mortgagor is not extinguished.\n<\/p>\n
      10.    Authorities  referred to above        say that     lease of<\/p>\n
kandukrishi thanathu lands is nothing but a tenancy-at-will. Therefore,<\/p>\n
it was determinable at the will of the lessor or lessee. In this case it is<\/p>\n
not disputed before me that the lands in question are kandukrishi<\/p>\n
thanathu lands and the right to possess the same was auctioned in<\/p>\n
favour of Thomman Jacob, predecessor-in-interest of the plaintiff. The<\/p>\n
said Thomman Jacob assigned that right in favour of the plaintiff as per<\/p>\n
Ext.A4, assignment deed No.785\/1955 dated 11.7.1955. There is no<\/p>\n
case or evidence that there was any amount due from the plaintiff or<\/p>\n
his predecessor-in-interest to the Government so far as the said land<\/p>\n
was concerned.       Therefore applying the law        as laid down in<\/p>\n
Subramonian Kesavan Empran’s case               plaintiff as well as his<\/p>\n
predecessor-in-interest had a “valuable right” in respect of the said<\/p>\n
S.A. No.361 of 2001
\n                                  -: 25 :-<\/span><\/p>\n
lands to be in possession until evicted by the Government.      Plaintiff<\/p>\n
continued to have that “valuable right” at the time he mortgaged<\/p>\n
that right (leasehold right) in favour of the predecessor-in-interest of<\/p>\n
defendant No.1 as per Ext.A2, dated 5.4.1957 and the said Ouseph<\/p>\n
Ouseph assigned the mortgagee’s right to defendant No.1 as per<\/p>\n
document No.687\/1963.         It is important to note that Rule 6(2a)<\/p>\n
recognised the presence of sub-lessee or mortgagee as the case may<\/p>\n
be as is evident from the fact that the provision stated that where the<\/p>\n
lessee has transferred the possession of kandukrishi thanathu lands to<\/p>\n
any other person be it by sale, sub lease, otti, mortgage or any other<\/p>\n
transaction under a registered document, the land shall be registered<\/p>\n
in the name of such transferee. Therefore it is not as if Rule 6(2a) of<\/p>\n
the Rules did not recognise the mortgagee in possession of the<\/p>\n
kandukrishi thanathu lands provided, he got such possession under a<\/p>\n
registered document.       The contention advanced by the learned<\/p>\n
counsel for the contesting defendants is that on such registry<\/p>\n
whatever right the lessee who created the mortgage had over the<\/p>\n
property stood extinguished.       True, decisions relied on by learned<\/p>\n
counsel counsel except the Full Bench decision in Narayanan<\/p>\n
Nadar’s case supported that contention.        But, the Full Bench has<\/p>\n
specifically held in respect of kandukrishi ‘thanathu’ lands that the<\/p>\n
S.A. No.361 of 2001
\n                                  -: 26 :-<\/span><\/p>\n
registry of the land in the name of mortgagee under Rule 6(2) (as it<\/p>\n
stood then) did not extinguish the right of the mortgagor. The Full<\/p>\n
Bench held that:\n<\/p>\n<\/p>\n
                   “…..as the mortgage was and could only<\/p>\n
            be a mortgage on the leasehold interest of the<\/p>\n
            mortgagor, the suit was really          one for<\/p>\n
            redemption and for recovery of the possessory<\/p>\n
            interest of the lessee in the property.    The<\/p>\n
            interest of    a lessee of kandukrishi thanathu<\/p>\n
            land has been characterised     as a “valuable<\/p>\n
            interest”       in  Neelakanta Pillai v.<\/p><\/blockquote>\n
\n            Madhavan Nair (1965 KLT 537) following<\/p>\n
            the decision in Subramonian Kesavan<\/p>\n
            Empran         v.    Kirshnan      Govindan<\/p>\n
            Plappilli (22 TLJ 968 at page 976) where it<\/p>\n
            was    observed that it was impossible to hold<\/p>\n
            that the tenant held the lands as       a mere<\/p>\n
            tenant-at-will with no powers of disposal at all<\/p>\n
            over them”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
The Full Bench further observed that:\n<\/p>\n<\/p>\n
                   “We do not think that in a suit for<\/p>\n
S.A. No.361 of 2001
\n                                  -: 27 :-<\/span><\/p>\n
             redemption of a mortgage on such an interest,<\/p>\n
             the question whether the registry of the land in<\/p>\n
             favour of the mortgagee would enure to his<\/p>\n
             behalf or to the    benefit of   the mortgagor<\/p>\n
             would have any relevance as the mortgage that<\/p>\n
             is sought to be redeemed is the mortgage of<\/p>\n
             the leasehold interest”.\n<\/p>\n
The Full Bench also observed that:\n<\/p>\n<\/p>\n
                     “….even if it is assumed that the<\/p>\n
             mortgagee became the owner of the property<\/p>\n
             by the registry, the mortgagor would be<\/p>\n
             entitled to redeem the mortgage on the<\/p>\n
             leasehold interest, as the leasehold interest in<\/p>\n
             the property has not been determined”.<\/p><\/blockquote>\n
      11.    As I stated above, Rule 6(2a) does not show that the<\/p>\n
leasehold interest of the mortgagee was extinguished by the registry<\/p>\n
in the name of defendant No.1.           Therefore, contention that the<\/p>\n
mortgagor ceased to have interest over the property by the registry<\/p>\n
cannot be accepted.       Nor can the request for a reference on the<\/p>\n
decision of the Full Bench be accepted.\n<\/p>\n
Whether defendant No.1 has perfected title by adverse<\/p>\n
S.A. No.361 of 2001
\n                                 -: 28 :-<\/span><\/p>\n
possession and law of limitation?:\n<\/p>\n
      12.    It is contended by the learned counsel      for contesting<\/p>\n
defendants that at any rate, right of the plaintiff as mortgagor is lost<\/p>\n
by adverse possession and limitation at least from Ext.B1, dated<\/p>\n
22.9.1971 onwards, defendant No.1 was in possession and enjoyment<\/p>\n
of the suit property as its absolute owner to the knowledge of the<\/p>\n
plaintiff, defendant No.1 got the registry in his name after an open<\/p>\n
fight with the plaintiff and hence the latter cannot any more contend<\/p>\n
that defendant No.1 is holding property or obtained the registry for<\/p>\n
and on his behalf. According to the learned counsel, principles of trust<\/p>\n
or constructive trust under Section 90 of the Indian Trust Act has no<\/p>\n
application to the facts of the case.        As plaintiff being not in<\/p>\n
possession of the property was not entitled to get the registry, it<\/p>\n
cannot be said that defendant No.1 got the registry in derogation of<\/p>\n
any right of the plaintiff. Learned counsel also submitted that even in<\/p>\n
Narayanan Nadar’s case, the Full Bench has not decided upon the<\/p>\n
application of Sec.90 of the Trust Act on such factual situation.<\/p>\n
Learned counsel pointed out from paragraph 3 of the plaint that the<\/p>\n
only contention raised by the plaintiff is that the registry obtained by<\/p>\n
defendant No.1 should enure to the benefit of the plaintiff and hence<\/p>\n
the mortgagor-mortgagee relationship survived.       The character and<\/p>\n
S.A. No.361 of 2001
\n                                -: 29 :-<\/span><\/p>\n
nature of the suit though styled as one for redemption of mortgage is<\/p>\n
really one for recovery of possession and Article 65 of the Limitation<\/p>\n
Act applies. Learned counsel invited my attention to the evidence of<\/p>\n
P.W.1 who stated on behalf of the plaintiff that defendant No.1 has<\/p>\n
been enjoying the property as its owner to the knowledge of the<\/p>\n
plaintiff.  Learned counsel for the plaintiff per contra contended that<\/p>\n
the plaintiff is not banking upon Sec.90 of the Trust Act to sustain the<\/p>\n
plaint claim, but on     the mortgagor-mortgagee relationship     which<\/p>\n
according to the learned counsel is not extinguished in the manner<\/p>\n
provided under law.       Learned counsel contended that the principle<\/p>\n
‘once a mortgage always a mortgage’ would and should apply and the<\/p>\n
mortgagor-mortgagee relationship could be terminated only by<\/p>\n
operation of law, a decree of court or by act of parties. Termination<\/p>\n
of mortgagor-mortgagee relationship by registry did not arise in view<\/p>\n
of the decision in Narayanan Nadar’s case and there is no case or<\/p>\n
evidence of the said relationship being extinguished by the decree of a<\/p>\n
court or act of the parties.\n<\/p>\n
      13.    The decisions in Gnanabharanam Muthiah v.\n<\/p>\n
Soosamuthu Maryaviswasam Nadar and another (1947<\/p>\n
TLR 558), Kumaramkari Devaswom v. Chacko<\/a> (1960 KLT<\/p>\n
S.A. No.361 of 2001
\n                                   -: 30 :-<\/span><\/p>\n
800) and Neelakanta Pillai v. Madhavan Nair<\/a> (1965 KLT<\/p>\n
537) took the view that when the mortgagee obtained the registry<\/p>\n
after an open fight with the mortgagor, question of         application of<\/p>\n
Sec.90 of the Trust Act did not arise.      In Narayanan Nadar’s case<\/p>\n
though the reference order (S.A. No.450 of 1968 dated 11.1.1971)<\/p>\n
referred to the application of Sec.90 of the Trust Act also, the Full<\/p>\n
Bench did not advert to the question of application of Sec.90 of the<\/p>\n
Trust Act. According to learned counsel for contesting defendants,<\/p>\n
therefore, the decisions in        Gnanabharanam Muthaiah’s case,<\/p>\n
Kumarankari Devaswom’s case and Neelakanta Pillai’s case<\/p>\n
should govern the field.\n<\/p>\n
      14.    But, it is pertinent to note from Narayanan Nadar’s case<\/p>\n
that what the Full Bench Bench observed is that:<\/p>\n
                   “…..in this view we do not think it<\/p>\n
             necessary to consider the question whether the<\/p>\n
             policy of the Government in enacting Rule 6(2)<\/p>\n
             was to confer the benefit of the registry in all<\/p>\n
             cases on the mortgagee in possession to the<\/p>\n
             exclusion of the mortgagor and thus exclude<\/p>\n
             the operation of S.90 of the Indian Trust Act”.<\/p>\n<\/blockquote>\n
It was observed that the question whether the registry will enure to<\/p>\n
S.A. No.361 of 2001
\n                                 -: 31 :-<\/span><\/p>\n
the benefit of the mortgagee or not will have to be decided in a fresh<\/p>\n
suit.  That observation followed the finding that (even) in respect of<\/p>\n
kandukrishi thanathu land, registry in the name of mortgagee did not<\/p>\n
terminate the mortgagor-mortgagee relationship.<\/p>\n
      15.    Once mortgagor-mortgagee relationship is created, that<\/p>\n
has to be determined either by operation of law, a decree of court or<\/p>\n
by act of the parties. Possession of the mortgaged property by the<\/p>\n
mortgagor or mortgagee if not inconsistent with the rights of the other<\/p>\n
party under the terms of the mortgage cannot be adverse to such<\/p>\n
party. A mortgagee or his successor cannot so far as the mortgage<\/p>\n
subsists claim title adverse to mortgagor, as the mortgagee is deemed<\/p>\n
to be in possession of the property for and on behalf of the mortgagor<\/p>\n
and not independently till redemption of mortgage by the mortgagor.<\/p>\n
In law, he is estopped from denying the title of the mortgagor and<\/p>\n
setting up an adverse tittle in himself unless he has relinquished<\/p>\n
possession of the mortgaged property and has further entered into<\/p>\n
possession of it under a different status and title. Therefore it should<\/p>\n
depend on the nature of the right     the mortgagee is asserting while<\/p>\n
entering the mortgaged property to ascertain whether his possession<\/p>\n
is adverse to the mortgagor or not. In the absence of evidence to<\/p>\n
show that the nature and character of possession by the mortgagee<\/p>\n
S.A. No.361 of 2001
\n                                  -: 32 :-<\/span><\/p>\n
has changed,       it must be held that he continued to possess the<\/p>\n
property on behalf of the mortgagor. But, there may be circumstances<\/p>\n
where mortgagee in possession may prescribe against the mortgagor.<\/p>\n
Based on the above broad principles, I shall consider whether<\/p>\n
defendant No.1 was holding the property adverse to the plaintiff from<\/p>\n
the time of Ext.B1.\n<\/p>\n
      16.    In this case defendant No.1 got possession of the property<\/p>\n
under a valid usufructuary mortgage and hence his possession has a<\/p>\n
lawful origin.    Exhibit B1 is the certified copy of the proceedings of<\/p>\n
the Board of Revenue (L.R.) dated 22.9.1971 in the Revision Petitions<\/p>\n
filed by the plaintiff and defendant No.1 against the dismissal of their<\/p>\n
respective appeals       by the District Collector who confirmed the<\/p>\n
dismissal of their applications for registry by the Tahsildar concerned.<\/p>\n
The authority which passed Ext.B1 order stated thus:<\/p>\n
                    “These revision   petition relates to the<\/p>\n
             registry of 11 acres 66 cents of kandukrishy<\/p>\n
             Land in Sy.Nos.212\/2, 210\/6A, 211\/2A, 213\/1A<\/p>\n
             and 210\/5 of Chinnemkari Village in Thandaper<\/p>\n
             Nol.51\/23    standing  in   the  name    of  one<\/p>\n
             Thomman Jacob.        The land was originally<\/p>\n
             kandukrishy pattom in tenure.        But it was<\/p>\n
             subsequently    released   and   Shri  Thomman<\/p>\n
S.A. No.361 of 2001
\n                                   -: 33 :-<\/span><\/p>\n
             Jacob, the present Thandaper holder bid the<\/p>\n
             same in auction in the year 1115 M.E.           The<\/p>\n
             lease was granted to the auction purchaser from<\/p>\n
             24.4.1115 M.E. Patta was also issued to him as<\/p>\n
             per the rules then inn force and he became the<\/p>\n
             Thandaper holder. Shri Thomman Jacob sold his<\/p>\n
             right over the property to Shri Mathai Mathew as<\/p>\n
             per sale deed No.784 dated 11.7.1955. But the<\/p>\n
             Thandaper was not changed. Shri Mathai<\/p>\n
             Mathew executed an otti deed No.282\/1957 in<\/p>\n
             favour   of   an   Ouseph      Ouseph    chirakkal,<\/p>\n
             Pallithanathu, Parippanadi on 5.4.1957.         Otti<\/p>\n
             right of Ouseph Joseph who subsequently<\/p>\n
             purchased by Shri Kesava Kurup Rama Chandra<\/p>\n
             Kurup, the first Revision Petitioner as per otti<\/p>\n
             transfer deed No.687 of 1963.         Shri Kesava<\/p>\n
             Kurup Ramachandra Kurup is also in possession<\/p>\n
             of puravaypa (    ) deed executed in<\/p>\n
             his favour by Shri Mathai Mathew on 27.6.1963.<\/p>\n<\/blockquote>\n
                   The    case  came     up    for  hearing   on<\/p>\n
             24.8.1970. Both parties were present through<\/p>\n
             Advocates. No doubt the lands involved in this<\/p>\n
             case are Thanathu lands as the lands were sold<\/p>\n
             in public auction to       Thomman Jacob and<\/p>\n
             subsequently patta was granted to him.           By<\/p>\n
             virtue of the documents, viz., Otti deed and the<\/p>\n
             puravaypa deed Shri Ramachandra Kurup is<\/p>\n
             entitled for the registry of the land in his favour.<\/p>\n<\/blockquote>\n
S.A. No.361 of 2001
\n                                  -: 34 :-<\/span><\/p>\n
             The Collector rejected his request only on the<\/p>\n
             ground that the registry in his name is not<\/p>\n
             possible as Shri Ramachandra Kurup got full<\/p>\n
             right only after 1.10.1957 and therefore the<\/p>\n
             registry is not possible according to rule 6(2) of<\/p>\n
             the Kandukrishy Land Assignment Rules.        But<\/p>\n
             the rule has since been amended as per<\/p>\n
             Government Notification No.27255\/No.3\/69\/LRD<\/p>\n
             dated 16.7.1970 as a result of the judgment of<\/p>\n
             the High Court of Kerala in O.P.No.38\/66.\n<\/p>\n
             Therefore, Shri Ramachandra Kurup is entitled<\/p>\n
             to the registry of the land in his name.      The<\/p>\n
             Collector’s order No.Kandkukrishy Assignment<\/p>\n
             20\/65 dated 31.10.66 is set aside”\n<\/p>\n
                                          (underline supplied)<\/p>\n
No doubt, plaintiff had objected to the grant of registry in the name of<\/p>\n
defendant No.1. But going through Ext.B1 it is pertinent to note that<\/p>\n
defendant No.1 was not claiming any right adverse to the plaintiff even<\/p>\n
in the matter of    registry.  Instead, he was relying on the mortgage<\/p>\n
as well as the puravaypa in his favour        to support his claim for<\/p>\n
registry. That was recognised by the Board of Revenue and going by<\/p>\n
Ext.B1 it would appear that the lower authorities rejected the claim of<\/p>\n
defendant No.1 for registry for the mere reason that as per Rule 6(2)<\/p>\n
of the Rules as it stood       then, defendant No.1 should have got<\/p>\n
S.A. No.361 of 2001
\n                                   -: 35 :-<\/span><\/p>\n
possession of the land, be it by Otti, sub-lease or mortgage by a<\/p>\n
registered     document prior to 1.10.1957, the cut off date then<\/p>\n
provided under Rule 6(2) of the Rules. It is admitted that defendant<\/p>\n
No.1 got     possession only after 1.10.1957.      Therefore he was not<\/p>\n
eligible for registry. It is while so that the Rule was amended and the<\/p>\n
cut off date was deleted which enabled defendant No.1 to get the<\/p>\n
registry. Exhibit B1 does not show that the plaintiff had objected to<\/p>\n
the right of defendant No.1 to get registry         for any other reason<\/p>\n
whatsoever. May be the objection of the plaintiff for registry in the<\/p>\n
name of defendant No.1 was that the latter got possession only after<\/p>\n
1.10.1957. At any rate, it is not shown that the ‘open fight’ between<\/p>\n
the plaintiff and defendant No.1 was regarding the leasehold right of<\/p>\n
the plaintiff or the right of defendant No.1 to possess the property.<\/p>\n
Therefore it is difficult to accept the contention of the learned counsel<\/p>\n
for contesting defendants that it was after an open fight with the<\/p>\n
plaintiff as regards the entitlement of defendant No.1 to get registry<\/p>\n
that he got it in his name and hence possession of the property with<\/p>\n
defendant No.1 from the date of Ext.B1 is adverse to the plaintiff. On<\/p>\n
the other hand even Ext.B1 would show that there was no dispute<\/p>\n
regarding mortgage or puravaypa in favour of defendant No.1 and he<\/p>\n
was claiming registry only on its basis.     Hence I am unable to accept<\/p>\n
S.A. No.361 of 2001
\n                                   -: 36 :-<\/span><\/p>\n
the contention that from Ext.B1 onwards defendant No.1 was holding<\/p>\n
the property adverse to the interest of the plaintiff. I stated earlier<\/p>\n
while considering point No.1 that what was given to defendant No.1<\/p>\n
by the registry was only the right of the paramount title holder i.e.,<\/p>\n
the proprietory right of the Government which         did not affect the<\/p>\n
leasehold right of the     plaintiff which was mortgaged in favour of<\/p>\n
predecessor of defendant No.1. It is true that P.W.1 in his evidence<\/p>\n
stated that defendant No.1 was holding the property as its owner to<\/p>\n
the knowledge of the plaintiff and even constructed a building thereon.<\/p>\n
But, in the light of the principles stated above, that evidence is not<\/p>\n
sufficient to hold that     repudiating right, title and interest of the<\/p>\n
plaintiff over that property, defendant No.1 was possessing the same.<\/p>\n
As such the contention that the right of the plaintiff if any is lost by<\/p>\n
adverse possession and limitation cannot be sustained.<\/p>\n
Whether defendant No.1 is entitled to get value of<\/p>\n
improvements?:\n<\/p>\n
       17.   It is lastly contended by learned counsel for contesting<\/p>\n
defendants that at any rate contesting defendants are entitled to get<\/p>\n
value of improvements effected by defendant No.1. Learned counsel<\/p>\n
contended that the first appellate court was not correct in law or on<\/p>\n
facts in denying value of improvements to the contesting defendants<\/p>\n
S.A. No.361 of 2001
\n                                 -: 37 :-<\/span><\/p>\n
relying on the decisions in Krishnan Sankaran v. Sankaran<\/p>\n
Channar (1959 KLT 1259) and            Krishnan Nair v. Kunjan<\/p>\n
Pillai<\/a> (1969 KLT 457).        Learned counsel contended that those<\/p>\n
decisions are not applicable to the facts of this case. Learned counsel<\/p>\n
for the plaintiff contended that reclamation of the land and<\/p>\n
construction of the house     are not in terms of the mortgage and<\/p>\n
puravaypa created in the name of defendant No.1 and hence whatever<\/p>\n
be the suitability of the said acts, contesting defendants are not<\/p>\n
entitled to get value of improvements.\n<\/p>\n
      18.    In Krishnan Sankaran’s case it was held that conversion<\/p>\n
of a double crop paddy land into a garden land however desirable it<\/p>\n
may be from the point of view of the mortgagee or the tenant, is a<\/p>\n
substantial alteration of the character of the holding and it cannot be<\/p>\n
described as an “improvement” for awarding compensation.             In<\/p>\n
Krishnan Nair’s case which was a case of conversion of nilam into<\/p>\n
garden land, the same principle was adopted.\n<\/p>\n
      19.    That, defendants have effected improvements on the land<\/p>\n
is not very much in dispute as it is the        case of the plaintiff in<\/p>\n
paragraph 8 of the plaint that defendant No.1 has made alteration in<\/p>\n
the plaint schedule properties violating the terms and intends of the<\/p>\n
mortgage and inconsistent with the nature of the lands and in violation<\/p>\n
S.A. No.361 of 2001
\n                                 -: 38 :-<\/span><\/p>\n
of the existing law prohibiting conversion of paddy lands. In response,<\/p>\n
defendant     Nos.1 and    2   contended   that   they   have  effected<\/p>\n
improvements. Learned Sub Judge did not frame an issue whether<\/p>\n
defendant No.1 is entitled to get value of improvements. But it is<\/p>\n
clear from the averments in the plaint and contentions raised in the<\/p>\n
written statements of defendant Nos.1 and 2 that parties went into<\/p>\n
trial conscious of the said claim of defendant Nos.1 and 2. Learned<\/p>\n
Sub Judge has not considered the question whether defendant Nos.1<\/p>\n
and 2 are entitled to get value of improvements. ln appeal that<\/p>\n
question was specifically raised on behalf of defendant Nos.1 and 2<\/p>\n
and the first appellate court    raised point No.5 whether defendant<\/p>\n
Nos.1 and 2 are entitled to get value of improvements.          Placing<\/p>\n
reliance on the decision in Krishnan Sankaran and Krishnan Nair’s<\/p>\n
case, referred supra it was held that defendant Nos.1 and 2 are not<\/p>\n
entitled to get value of improvements. But that was on the premise<\/p>\n
that the land has been reclaimed as against the terms of the mortgage<\/p>\n
and the purpose for which the land was given to defendant No.1.<\/p>\n
Learned counsel for defendant Nos.1 and 2 contended that the said<\/p>\n
decisions are not applicable to the facts of this case since there is no<\/p>\n
reclamation of the land as such or conversion into any other type.<\/p>\n
Instead, what is involved is only construction of bund (chira) around<\/p>\n
S.A. No.361 of 2001
\n                                  -: 39 :-<\/span><\/p>\n
the kayal lands and planting trees on those bund to give it further<\/p>\n
strength and the construction of house in the raised portion, all<\/p>\n
intended for the proper cultivation of the kayal lands.<\/p>\n
      20.    Unfortunately, no commission was taken out at the stage<\/p>\n
of preliminary decree proceedings to find out        the improvements<\/p>\n
effected by defendant Nos.1 and 2.        I am told that an Advocate<\/p>\n
Commissioner had inspected the lands in the course of final decree<\/p>\n
proceedings. Going by the decision referred supra and relied on by the<\/p>\n
first appellate court also   if there is a reclamation of the land  as<\/p>\n
purayidom defendant Nos.1 and 2 are not entitled to claim value of<\/p>\n
improvements.\n<\/p>\n
      21.    ‘Improvement’     is defined in Section 2(b) of the Kerala<\/p>\n
Compensation for Tenants Improvements Act, 1958 thus:<\/p>\n
                   “2(b) “improvements”        means    any<\/p>\n
            work or product of a work which adds to the<\/p>\n
            value of the holding, is suitable to it and<\/p>\n
            consistent with the purpose for which the<\/p>\n
            holding is let, mortgaged or occupied, but does<\/p>\n
            not include such clearances, embankments,<\/p>\n
            levellings, enclosures, temporary wells and<\/p>\n
            water-channels as are made by the tenant in<\/p>\n
            the ordinary course of cultivation and without<\/p>\n
S.A. No.361 of 2001
\n                                  -: 40 :-<\/span><\/p>\n
            any special expenditure or any other benefit<\/p>\n
            accruing to land from the ordinary operations of<\/p>\n
            husbandry”.\n<\/p>\n
In Ext.A3 it is stated as:\n<\/p>\n
      “…\n<\/p>\n
                                  ………”\n<\/p>\n
The word ”                       ‘   means levelling the land for paddy<\/p>\n
cultivation. Therefore, making the land suitable for cultivation was<\/p>\n
permitted. Construction of bund (chira) around the kayal land cannot<\/p>\n
be said to be a reclamation of the land        and its conversion into<\/p>\n
purayidom.      It is common knowledge that bund is        meant    for<\/p>\n
protection of cultivation effected in the kayal land and that such<\/p>\n
bund is necessary for      storage and pumping out water from the<\/p>\n
kayal land for the purpose of cultivation. Hence construction of bund<\/p>\n
at reasonably sufficient width on the sides of the land cannot be<\/p>\n
understood as a work inconsistent with the purpose for which the land<\/p>\n
was put in the possession of defendant No.1<\/p>\n
      22.    So far as planting of trees on the bund is concerned, that<\/p>\n
can only be understood as meant to give further strength to the bund<\/p>\n
since the cluster of roots of the trees go deep into the bund, hold the<\/p>\n
S.A. No.361 of 2001
\n                                 -: 41 :-<\/span><\/p>\n
bund and prevent soil erosion. That also cannot be understood as an<\/p>\n
act contrary to the purpose for which the land was put in the<\/p>\n
possession of defendant No.1. Hence, for the said works, defendant<\/p>\n
No.1 is entitled to get for value of improvements.         The decisions<\/p>\n
relied on by the first appellate court to deny value of improvements<\/p>\n
cannot apply to the facts of the case. But the contention that the<\/p>\n
house was constructed for proper cultivation of the kayal land and<\/p>\n
therefore defendant No.1 is entitled to get compensation for<\/p>\n
construction of house cannot be accepted. Construction of the house<\/p>\n
or reclamation of the house plot       cannot be said to be     part of<\/p>\n
cultivation.\n<\/p>\n
      23.    The quantum of compensation for the          improvements<\/p>\n
payable to the contesting defendants will be        decided in the final<\/p>\n
decree proceedings.\n<\/p>\n
      24.    No other point arose for consideration.\n<\/p>\n
      Second appeal is allowed in part in the following lines:<\/p>\n
      (i)    Such of the defendants who claim under defendant No.1<\/p>\n
will get compensation from the plaintiff for construction of bund on<\/p>\n
the sides of the suit properties at reasonably sufficient width and the<\/p>\n
trees planted on such bund for protection of the cultivation, the<\/p>\n
quantum of which will be decided in the final decree proceedings.<\/p>\n
S.A. No.361 of 2001
\n                                   -: 42 :-<\/span><\/p>\n
       (ii)  In all other respects, the judgment and decree under<\/p>\n
challenge are confirmed.\n<\/p>\n
      (iii)  Parties shall suffer their respective costs in this appeal.<\/p>\n
      Civil Miscellaneous Petition Nos.831 of 2001 and 210 and 1420<\/p>\n
of 2002 shall stand dismissed.\n<\/p>\n<\/p>\n
                                               THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
\nvsv<\/p>\n
S.A. No.361 of 2001
\n                       -: 43 :-<\/span><\/p>\n
                                THOMAS P.JOSEPH, J.\n<\/p>\n
                               ===================
\n                                 S.A. NO.361 OF 2001
\n                               ===================<\/p>\n
                                    J U D G M E N T<\/p>\n
                                 13TH MARCH, 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
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>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-174475","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThankamma vs Mathai Mathew on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thankamma-vs-mathai-mathew-on-13-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thankamma vs Mathai Mathew on 13 March, 2009 - 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