Sathiavardhan and others v. Joseph and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939** **SA.No. 871 of 1998 (D) ----------------------AS.163/1992 of DISTRICT COURT,THRISSUR OS.353/1983 of MUNSIFF COURT,CHAVAKKAD** **APPELLANT(S)/RESPONDENTS/PLAINTIFFS: -----------------------------------** ## *** 1. SATHIAVARDHAN,** **AGED 49 YEARS, S/O VALIPARAMBIL KUMARAN, PALLIPRAM, CHAVAKKAD. (DIED)** ## *** 2. RAMACHANDRAN,** **AGED 47 YEARS, S/O VALIPARAMBIL KUMARAN, PALLIPRAM, CHAVAKKAD. (DIED)** **3. BABU, AGED 36 YEARS, S/O VALIPARAMBIL KESAVAN, PALLIPRAM, CHAVAKKAD.** ## ***ADDL. 4TH APPELLANT IMPLEADED:** **4. REMANI SATYAVRADHAN, W/O LATE SATYAVRADHAN, PALLIPURAM, CHAVAKKAD.** *** ADDL.4TH APPELLANT IMPLEADED AND ADDL. 4TH APPELLANT AND RESPONDENTS 25 AND 26 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED FIRST APPELLANT AS PER ORDER DATED 29.11.2013 IN IA.3195/2013.** ## **** ADDL.5TH APPELLANT IMPLEADED:** **5. V.S. SINA, D/O VALIPARAMBIL SATYAVRADHAN, PANATT HOUSE, VAZHIYAMBALAM, KAIPAMANGALAM-680681.** ## **SA.No. 871 of 1998 (D) -----------------------** **** ADDL. 5TH APPELLANT IMPLEADED AND RECORDED AS ONE OF THE LEGAL HEIRS OF THE DECEASED FIRST APPELLANT, AS PER ORDER DATED 25.02.2014 IN IA.5/2014.** ## ***** ADDL. APPELLANTS 6,7, & 8 ARE IMPLEADED:** **6. AMMINI RAMACHANDRAN, W/O LATE RAMACHANDRAN, VALIPARAMBIL (H), P.O.KAZHIMBRAM, EDAMUTTAM, CHAVAKKAD THALUK, THRISSUR DISTRICT.** **7. JEEJA RADHAKRISHNAN, AVANIPULLI HOUSE, P.O. PANANGAD, KODUNGALOOR TALUK, THRISSUR DISTRICT-680665.** **8. SHIJA BABU, NELLIPPARAMBATHU HOUSE, KANDAMKULAM, KODUNGALOOR TALUK-680669, THRISSUR DISTRICT.** - ***** ADDL. APPELLANTS 6,7, & 8 ARE IMPLEADED AND RESPONDENT NO.27 IS RECORDED ASTHE LEGAL HEIRS OF DECEASED 2ND APPELLANT AS PER ORDER DATED 7.6.2017 IN I.A.1243/2017.** **BY ADVS.SMT.V.P.SEEMANDINI (SR.) SMT.VIJU.P.VIJAYAN SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN** **RESPONDENT(S): --------------** ***** 1. JOSEPH, AGED ABOUT 56 YEARS, S/O. KURUTHUKULANGARA LONAPPAN, PALLIPRAM, CHAVAKKAD. (DIED)** ## **SA.No. 871 of 1998 (D)** **-----------------------** ***** 2. SMT. KUNJANNAM,** **AGED ABOUT 46 YEARS, W/O 1ST DEFENDANT, PALLIPRAM, CHAVAKKAD. (DIED)** ## **3. KARTHIKEYAN,** **AGED ABOUT 31 YEARS, S/O KOVIL THEKKE VALAPPIL KUMARAN, PALLIPRAM, CHAVAKKAD.** ## **4. BHASKARAUNNI,** **AGED ABOUT 62 YEARS, RETIRED CIVIL SURGEON, S/O VALIPARAMBIL GOPALAN, EDATHIRUTHI, CHAVAKKAD.** ## **5. CHANDRASEKHARAN,** **AGED ABOUT 63 YEARS, S/O VALIPARAMBIL UNNIPPARAN, PALLIPRAM, CHAVAKKAD.** ## **6. RAMAKRISHNAN,** **AGED ABOUT 58 YEARS, S/O VALIPARAMBIL UNNIPPARAN, PALLIPRAM, CHAVAKKAD.** ## **7. DHARMARAJAN,** **AGED ABOUT 56 YEARS, S/O VALIPARAMBIL KESAVAN, PALLIPRAM, CHAVAKKAD.** ## **8. DHARMAPALAN,** **AGED ABOUT 54 YEARS, VALIPARAMBIL KESAVAN, PALLIPRAM, CHAVAKKAD.** ## **9. PARANUNNI,** **AGED ABOUT 48 YEARS, S/O KESAVAN, NOW RESIDING AT PRASANTH, SOUTH EROOR, TRIPUNITHURA.** ## **10. UNNIKRISHNAN,** - **AGED ABOUT 40 YEARS, S/O KESAVAN, NOW RESIDING AT PRASANTH, SOUTH EROOR, TRIPUNITHURA.** ## **SA.No. 871 of 1998 (D)** **----------------------** ## **11. ULLAS,** **AGED ABOUT 31 YEARS, S/O KESAVAN, NOW RESIDING AT PRASANTH, SOUTH EROOR, TRIPUNITHURA.** ## **12. DHARMADEVAN V.K.,** **AGED 50 YEARS, S/O VALIPARAMBIL KUMARAN, PALLIPRAM, CHAVAKKAD, NOW RESIDING AT C/O KAKKATTIL HOUSE, P.O. KADAMPUR, AMBALAPARA.** ## **13. VIJAYAN,** **AGED 40 YEARS, S/O VALIPARAMBIL KUMARAN, NOW WORKING AT DOOR NO. 92-A-CHELLAN TALKIES ROAD, POLLACHI - 642 001.** ## **14. V.S. KRISHNANUNNI,** - **AGED ABOUT 38 YEARS, S/O VALIPARAMBIL SANKARANARAYANAN, NOW PROPRIETOR, UNNIKRISHNA FABRICS, KAIPAMANGALAM P.O., MOONUPEEDIKA.** ## **15. NAVEENDRA SOBHANAN,** - **AGED ABOUT 38 YEARS, S/O VALIPARAMBIL SANKARANARAYANAN, NOW WORKING AT SYNDICATE BANK, 402, SHAN VIEW, SUDHEER VIHAR, NEW DELHI - 110 030.** **16. GINISH KUMAR, AGED ABOUT 22 YEARS, S/O VALIPARAMBIL KUMARAN, PALLIPRAM, CHAVAKKAD.** **17. ARUNKUMAR,** - **AGED ABOUT 32 YEARS, S/O VALIPARAMBIL BALAGANGADHARAN, PALLIPRAM, CHAVAKKAD.** **18. AJAYKUMAR, AGED ABOUT 28 YEARS, S/O VALIPARAMBIL BALAGANGADHARAN, PALLIPRAM, CHAVAKKAD.** ## **SA.No. 871 of 1998 (D) -----------------------** **19. JAYASINGH, AGED ABOUT 40 YEARS, S/O VALIPARAMBIL MADHAVAN, PALLIPRAM, CHAVAKKAD.** ## **20. RANJITH SINGH,** - **AGED ABOUT 36 YEARS, S/O VALIPARAMBIL MADHAVAN, PALLIPRAM, CHAVAKKAD.** ## **21. SUDHEER SINGH,** - **AGED ABOUT 36 YEARS, S/O VALIPARAMBIL MADHAVAN, PALLIPRAM, CHAVAKKAD.** ## **22. SATHI,** - **AGED ABOUT 48 YEARS, W/O LATE VALIPARAMBIL BAHASKARANUNNI, EDATHURUTHI, KODUNGALLOOR.** ## **23. BALAGOPALAN,** - **AGED ABOUT 30 YEARS, EDATHURUTHI, KODUNGALLOOR, NOW RESIDING AT PATAC ROAD WAYS, TRIVANDRUM.** ## **24. CHANDRA MOHANAN,** - **AGED ABOUT 28 YEARS, S/O VALIPARAMBIL MADHAVAN, PALLIPRAM, CHAVAKKAD.** ## **25. JAYASINGH,** - **AGED 24 YEARS, S/O VALIPARAMBIL SATHIAVARDHAN, KAZHIMBRAM, CHAVAKKAD.** ## **26. PRATHEEPKUMAR,** - **AGED ABOUT 22 YEARS, S/O VALIPARAMBIL SATHIAVRIDAN, KAZHIMBRAM, CHAVAKKAD.** **27. V.K. RAMACHANDRAN, S/O VALIPARAMBIL RAMACHANDRAN, AGED ABOUT 25 YEARS, KAZHIMBRAM, CHAVAKKAD.** ## **SA.No. 871 of 1998 (D)** **-----------------------** **28. V.R. JOSHI, AGED ABOUT 26 YEARS, S/O VALIPARAMBIL RAMACHANDRAN, CHAVAKKAD.** **29. V.R. RADHAKRISHNAN,** **AGED ABOUT 25 YEARS, S/O VALIPARAMBIL RAMACHANDRAN, CHAVAKKAD.** **30. V.R. MALLIKA, AGED ABOUT 34 YEARS, D/O VALIPARAMBIL DHARMARAJAN, EDAMUTTAM, KAZHIMBRAM, CHAVAKKAD.** **31. V.R. SUNIL, AGED 32 YEARS, S/O VALIPARAMBIL DHARMARAJAN, EDAMUTTAM, CHAVAKKAD.** **32. V. GOPIKRISHNAN, AGED ABOUT 22 YEARS, S/O DHARMAPALAN, EDAMUTTAM, KAZHIMBRAM, CHAVAKKAD.** **33. V. SANJAYAKRISHNAN, AGED ABOUT 29 YEARS, D/O DHARMAPALAN, EDAMUTTAM, KAZHIMBAKAM, CHAVAKKAD.** **34. V.U. SUKESH AGED 18 YEARS, S/O UNNIKRISHNAN, KARAYAMVATTOM, CHAVAKKAD.** **35. V.D. KRISHNAKUMAR, AGED ABOUT 27 YEARS, S/O DHARMADEVAN, NOW RESIDING AT KADAMBUR, OTTAPALAM.** **36. V.D. ASOK KUMAR, AGED ABOUT 22 YEARS, S/O. DHARMADEVAN, NOW RESIDING AT KADAMBUR, OTTAPALAM.** **37. V.V. NANDAKUMAR, AGED ABOUT 26 YEARS, S/O VALIPARAMBIL VIJAYAN, KAZHIMBRAM, CHAVAKKAD.** ## **SA.No. 871 of 1998 (D)** **-----------------------** **38. V.J. VIKAS, AGED ABOUT 25 YEARS, S/O VALIPARAMBIL JAYASINGH, KAZHIMBRAM, CHAVAKKAD.** **39. V.S. MADHAVANUNNI,** - **AGED ABOUT 18 YEARS, S/O. VALIPARAMBIL SUDHEERSINGH, KAZHIMBRAM, CHAVAKKAD.** **40. MINOR V.S. BIKKU, AGED ABOUT 8 YEARS, D/O VALIPARAMBIL SUDHEER SINGH, KAZHIMBRAM, CHAVAKKAD.** ## **41. BEENA,** - **W/O VALIPARAMBIL LATE SUNIL, KARAYAMUTTAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK.** **42. BIJESH, MINOR, S/O VALIPARAMBIL LATE SUNIL.** **43. BINEESH, MINOR, S/O. VALIPARAMBIL LATE SUNIL- MINORS REPRESENTED BY GUARDIAN MOTHER BEENA.** - ***** IT IS RECORDED THAT 1ST RESPONDNET DIED ON 27.8.1998 AS PER ORDER DATED 17.7.2003 VIDE MEMO DATED 26.5.2003 C.F.2165/2003** - ****** ADDL. RESPONDENTS 44 TO 48 ARE IMPLEADED:** **44. K.J. SUNNY, KURUTHUKULANGARA HOUSE, P.O. VALAPAD, THRISSUR-680567.** **45. K.J. TESSY, W/O M.T. JOHNY, MANACHERY HOUSE, VETTUKADAV (VIA), EAST CHALAKUDY, P.O. CHALAKUDY, TRICHUR DISTRICT.** ## **46. K.J. JOHNY, KURUTHUKULANGARA HOUSE, P.O. VALAPPAD, TRICHUR-680567.** **SA.No. 871 of 1998 (D) -----------------------** **47. K.J. SEBY, TYPE IV-C-12, EKTA VIHAR, SECTOR-25, CBD BELAPUR, NEW MUMBAI - 400614.** **48. K.J. TONY, KURUTHUKULANGARA HOUSE, P.O. VALAPAD, TRICHUR - 680567.** ****** ADDL. RESPONDENTS 44 TO 48 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENTS 1 AND 2 AS PER THE ORDER DATED 12.3.2014 IN IA.1147/2009.** **R3 BY ADV. SRI.P.RAMACHANDRAN R13,30,32,33,37 BY ADV. SRI.P.S.ABHISHEK R44-R48 BY ADV. SRI.K.G.BALASUBRAMANIAN BY ADV. SRI.P.R.VENKITESH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.06.2017, THE COURT ON 14.09.2017 DELIVERED THE FOLLOWING:** **EL** **SA.No. 871 of 1998 (D) ----------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURE -----------------------** **A1 TRUE COPY OF THE NEWS ITEM IN MATHRUBHUMI DAILY DATED 20.1.2012** **A5 CERTIFIED COPY OF DOCUMENT NO.637/1958** **RESPONDENT(S)' ANNEXURE -----------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **K.RAMAKRISHNAN, J.** _**[C.R.]**_ **-------------------------------** ## **S.A. No.871 of 1998** **------------------------------** Dated this the 14[th] day of September, 2017 ## **JUDGMENT** Plaintiffs in O.S.353/1983 on the file of the Munsiff Court, Chavakkad are the appellants herein. The suit was one filed by the plaintiffs for redemption of mortgage with following allegations: Plaintiffs and defendants 4 to 21 are the members of Valimparambil tharavad, a Hindu undivided joint family. There was a suit for partition as O.S.521/1946 filed by the members of the family for partition of the family properties. During the pendency of the proceedings, as per order in I.A.No.266/1949, the family properties were mortgaged for and on behalf of the tharavad by the receiver appointed in the suit namely, Valimparambil Gangadharan, son of Sankaran. He created a possessory mortgage as per document No.202/1949 dated 11.03.1949 of S.R.O. Thriprayar in favour of the first defendant's father, Kuruthukulangara Lonappan Mappila, son of Gouri Mappila. The then karanavan of Valimparambil tharavad namely, Krishnan had executed earlier possessory mortgage in favour of the said Lonappan as per document No.227/1943. Further mortgage was also created by said Krishnan in favour of the said Lonappan as per document No.228/1943. The said mortgage was created to repay the mortgage debt covered by earlier two mortgages 2 and also to satisfy the decree debt in O.S.84/1945 and also for paying remuneration to Sri. K.L.Kalyanakrishna Iyer, who was the receiver appointed in the partition suit. The mortgage was created for an amount of Rs.15,376.10. There was a stipulation in the mortgage deed that the mortgagee has to pay 876 paras and 5 idangazhi of paddy and Rs.17 and 8 anas as annual rent to Valimparambil tharavad. It is also stipulated that, from and out of the rent payable by the mortgagee, he can appropriate 730 para and 3 idangazhi and 1 and 3/4[th] nazhi paddy towards the interest of the mortgage amount. It is further stipulated that the mortgagee shall pay the balance rent, that is 146 para, one idangazhi and 2¼[th] nazhy paddy and 17 Rupees and 8 anas as annual rent for a period of six years and the rent shall be paid during the month of Makaram. It was also stipulated that, the mortgagee shall obtain receipt for payment of the balance rent and in default, he shall be liable to pay interest. During the pendency of the possessory mortgage relating to the plaint schedule properties and certain other items, Lonappan in the capacity as mortgagee sold item Nos.7, 8 and 9 in the schedule to the mortgage deed in favour of Valimparambil Kesavan as per document No.628/58 of S.R.O., Thriprayar. An amount of Rs.3750/- was fixed as the proportionate mortgage money in respect of the property covered by the said document and the 3 purchaser is bound to pay 33 paras, 7 idangazhi and 2/¼[th] nazhi paddy as annual rent relating to the property covered by the said document. Excluding the charge released as per the above said document, the charge relating to the remaining mortgaged properties is only Rs.11,626.10 as mortgage money and 112 para and 4 idangazhi paddy and Rs.17 and 8 anas as purappad per year. While so the children of mortgagee, namely, the first defendant and his brother Antony entered into a registered partition relating to the properties of Lonappan and in the said partition deed, the mortgaged properties were also included. As per the said partition deed No.637/58 of S.R.O., Thriprayar, the properties shown in item No.1, 2 and 3 of mortgage deed of 1949, which were shown as plaint schedule were set apart to the first defendant Ouseph and he is in possession and enjoyment of the same as a mortgagee in possession. A sum of Rs.5,026.10 was fixed as the proportionate money in respect of the properties set apart to the share of the first defendant and he is bound to pay 47 para, 4 idangazhi paddy and Rs.16.25 as purappad annually. The mortgagees have paid purappad inclusive of the period 1135 M.E. and the balance purappad amount and interest are due from the first defendant to the tharavad and the same has to be accounted and the first defendant is liable to pay the same. In case, if it is found, the first defendant had paid any 4 amount after 1135 M.E., towards purappad, the plaintiffs are prepared to adjust the same towards the rent payable. Since the tharavad properties were involved in litigation for long time, the plaintiffs were not in a position to assess the exact amount relating to the arrears of purappad payable by the mortgagee. So they approximately fixed the purappad amount as Rs.5,000/- and on that basis, the same has been valued for the purpose of the suit. They are ready and willing to deposit the excess court fee, if it is found later that any excess amount is due to the plaintiffs' tharavad towards purappad amount. The plaintiffs sent a registered notice to defendants 1 and 2 calling upon them to finalise the amount relating to the mortgage transaction and redeem the mortgage and surrender possession of the mortgage properties to the plaintiffs for and on behalf of the tharavad. Defendants 1 and 2 sent a reply containing false and untenable contentions. Defendants 2 and 3 were impleaded in the suit, since it was found that they had obtained some right in the plaint schedule property from the first defendant. If the defendants 1 to 3 have created any document, ignoring the mortgage created by the tharavad, the same are not binding on the plaintiffs or the tharavad. Since the defendants 4 to 21 are the members of the plaintiffs tharavad and since they did not join the plaintiffs in filing the suit, they 5 were shown as defendants in the suit. It is also alleged in the plaint that in the partition deed No.637/58, the parties have admitted the possessory mortgage of the year 1949 and therefore the suit is not barred by limitation. The plaintiffs therefore seek permission to deposit the mortgage amount of Rs.5026.10 and declare the mortgage debt relating to the plaint schedule properties discharged and direct the first defendant to surrender possession of the plaint schedule properties along with back documents to the plaintiffs. They also sought permission to adjust the balance purappad and interest thereon due to the plaintiffs' tharavad towards the mortgage money. They also requested to issue direction to the first defendant to pay the excess purappad amount if any due to the plaintiffs' tharavad. So they prayed for redemption of mortgage and also for accounting. 2. During the pendency of the suit, 4[th] defendant died and as per order in I.A.2323/89, supplemental defendants 22 to 40 were impleaded and as per order in I.A.No.2355/89, supplemental 4[th] plaintiff was also impleaded. 3. Defendants 1 and 2 filed written statement contending as follows: Plaintiffs and defendants 4 to 21 were not members of the Hindu undivided family. After the decree in O.S.No.21/1946 of Sub Court, 6 Ottappalam, there was no joint family as contended by the plaintiffs. So the plaintiffs have no _locus standi_ to institute the suit for and on behalf of the joint family. Further apart from plaintiffs and defendants 4 to 21, there were more than 100 members in Valimparambil tharavad and all the members were not impleaded and as such the suit is bad for non joinder of necessary parties. It is admitted that the manager of Valimparambil tharavad namely, deceased Krishnan executed a mortgage deed No.227/43 in favour of Kuruthukulangara Lonappan and also executed another mortgage deed No.1378/42 in respect of items 1 to 21 of the said document and they were leased in favour of Lonappan on an annual rent of Rs.876 para, 5 idangazhi of paddy and Rs.17 and 8 anas. Krishnan borrowed a sum of Rs.6,350 from Lonappan to discharge the previous debts of the family. As per document No.401/1941, the properties described as items 8 and 9 of document No.1378/42 were mortgaged in favour of Meppil Kunhikrishnan for a sum of Rs.350/-. Item 11 of said document was leased out in favour of one Madhavan on oral lease. Items 12 to 27 covered by the said mortgage were transferred in favour of one Cheriyapurackal Abdullakutty for a sum of Rs.1,900/- on the strength of a kaichit and he was in possession and enjoyment of the same. It was stipulated that said Lonappan can recover possession of item Nos. 7 8, 9, 11 and 12 to 27 covered by the mortgage deed and retain possession of the same as a lessee. As per that stipulation, those properties were redeemed by Lonappan and he was in possession and enjoyment of the same ever since 1942 as a lessee by paying rent. It was stipulated that, Lonappan is entitled to adjust the rent towards the interest on the amount borrowed. It was further agreed that Lonappan shall pay 51 paras of paddy and Rs.17 and 8 anas as purappad. He was made liable to pay the land assessment relating to the above said properties. The plaintiffs have not mentioned anything about the document No.1378/42. A further charge was created as per document No.228/43. Even though it was mentioned in document No.1378/42 that the properties were mortgaged as per possessory mortgage, Lonappan was in possession and enjoyment of the property as a tenant by paying rent. During the continuance of possession of 30 items of properties by Lonappan, there was a suit for partition as O.S.521/46 before Sub Court, Ottappalam for partitioning the above said tharavad properties and during the pendency of the suit as per order in I.A.216/49 a receiver was appointed to execute another mortgage deed No.202/49 in favour of Lonappan and said mortgage relates to a consolidated amount of Rs.15,376.10. Thereafter as per document No.216/1949, Lonappan released 3 items of properties and 8 the remaining items were in the possession and enjoyment of said Lonappan. He assigned his lease hold right over item Nos.7, 8 and 9 of mortgage properties in favour of Valimparambil Kesavan. The remaining properties were set apart to the share of his children as per partition deed No.637/1958 and the first defendant obtained 5.18 acres in survey No.311/3 and 58 cents in survey No.311/2. First defendant sold 3.70 acres in favour of 2[nd] defendant, the remaining property having an extent of 2 acres is in the possession of first defendant. Out of 3.70 acres, second defendant sold 15 cents to third defendant as per document No.1307/82, the remaining properties were in the possession of 2[nd] defendant and they are in possession of the properties as lessees and they are not liable to pay any amount to the plaintiffs' tharavad. They are not liable to surrender the property as well. Further they have made huge constructions in the property and also made valuable improvements. They have spent more than Rs.25,000/- for constructing structures in the plaint schedule property. They are entitled to get Rs.19,000/- towards the value of yielding coconut trees and Rs.2,500/- towards non-yielding coconut trees and as such they are entitled to get Rs.46,500/- as value of improvements effected in the plaint schedule property. Further they are in possession of the properties as lessees and they are entitled to fixity under Kerala 9 Land Reform Act as deemed tenants as well. The mortgage was created in the year 1949 and the suit was filed in the year 1983 and so the suit is barred by limitation. So they prayed for dismissal of the suit. 4. On the basis of the pleadings, following issues and additional issues were framed by the trial court for consideration. _1. Whether the suit is maintainable?_ _2. Whether the suit is bad for non-joinder of necessary parties?_ _3. Whether the defendants 1 and 2 are entitled to the benefits under the K.L.R. Act?_ _4. Whether the suit is barred by limitation?_ _5. Reliefs and costs?_ _6. Whether defendants 1 and 2 are tenants under the K.L.R. Act?_ - _Addl. Issue No. 7. In case of redemption whether defendants 1 and 2 are entitled to get the value of improvement? (Addl. Issue No.7 framed as per order in I.A.1666/85)_ 5. No oral evidence was adduced on either side and Exts.A1 to A4 and C1 were marked on the side of the plaintiffs and Exts.B1 to B14 were marked on the side of the contesting defendants. The question regarding the tenancy raised by defendants 1 and 2 was referred to land tribunal where it was numbered as R.C.No.1/83 and after considering the oral and documentary evidence adduced before the land tribunal, the land tribunal found that the document created is only a mortgage and the defendants 1 and 2 are not entitled to get fixity of tenure or the status of deemed tenant and answered the reference against the defendants 1 and 2. 6. The trial court after considering the documentary evidence 10 came to the conclusion that the suit is maintainable and the suit is not barred by limitation. The trial court also found that plaintiffs are entitled to get a decree for redemption and also that defendants 1 and 2 are entitled to get value of improvements but quantum can be decided at the time of final decree and passed a preliminary decree for redemption of mortgage created as per document No.202/1949 in respect of the plaint schedule properties and directed the plaintiffs to take steps within six months from the date of judgment to issue a commission to estimate the exact amount due to the mortgagor or the mortgagee in respect of the mortgage created as per document No.202/1949 relating to the plaint schedule properties and directed the commissioner to take an account of the value of improvements effected by defendants 1 to 3 in the mortgaged properties and the exact amount due to the plaintiffs' family or defendants 1 to 3 as the case may be and finally adjudicate on these aspects in the final decree proceedings. It is further held that the cost of suit shall come out the estate and adjourned the case sine die. Dissatisfied with the judgment of the trial court, defendants 1 and 2 filed A.S.No.163/1992 before the District Court, Thrissur. The District Judge by the impugned judgment, though confirmed by the finding of the court below that the suit is maintainable and defendants 1 and 2 are not entitled to get the 11 tenancy right or benefit of deemed tenancy under the Kerala Land Reforms Act, confirming the finding of the Land Tribunal on this aspect, but found that the suit is barred by limitation and allowed the appeal and dismissed the suit on the ground of limitation. The District Judge also found that merely because the preliminary decree does not mention the amount due will not vitiate the preliminary decree as considering the nature of recitals in the document accounting is required which can be done only in the final decree. 7. Aggrieved by the dismissal of the suit by the first appellate court, the present second appeal has been filed by the appellants, who are the plaintiffs in the trial court. While admitting the appeal, this Court has accepted the substantial questions of law raised in the Appeal Memorandum, which reads as follows: _a. Is not a statement by the mortgagee in a sub mortgage deed that he is holding the land in mortgage from the true owner amounts to valid acknowledgement ?_ _b. When the recitals in A2 in unambiguous terms states about the subsisting liability and retains with him a part of rent and interest till the date of subsequent document is it proper to treat the recitals as mere biasing of sweet relationship?_ _c. When a subsequently executed document which is referred to in the plaint is produced and marked is it legal to find fault with the plaintiff for non production of earlier document and draw adverse inference on that basis?_ 8. While arguing the case, this Court felt that some more 12 substantial questions of law also arise as no appeal was filed by the defendants 1 and 2 regarding the findings against them and the question arose as to whether the findings against them can be considered in the second appeal filed by the plaintiffs without filing a cross objection by them as follows: _1. Whether the respondents 1 and 2 are entitled to agitate the findings against them invoking Order XLI Rule 22 of Code of Civil Procedure without filing a cross objection in order to sustain the decree passed by the 1[st ] appellate court dismissing the suit ?_ _2. Whether the courts below were justified in coming to the conclusion that respondents 1 and 2 are not entitled to get the benefit of deemed tenancy under the provisions of the Kerala Land Reforms Act?_ _3. Whether courts below were justified in coming to the conclusion that since it is a mortgage, the defendants 1 and 2 are not entitled to get benefit of fixity of tenure or deemed tenancy without considering the legal aspects and the clauses relating to the nature of right of parties created under the document?_ 9. These aspects were also heard on both sides. 10. Heard Smt.Karthika Sukumaran, counsel appearing for the appellant and Sri.K.G.Balasubramaniam, counsel appearing for the contesting respondents. 11. Counsel for the appellants submitted that the lower appellate court was not justified in coming to the conclusion that the suit is barred by limitation. By virtue of the document, usufructuary 13 mortgage has been created and in view of the latest decision of the Apex court, in the case of usufructuary mortgage, there is no limitation as such and whenever the mortgagor tends the amount and asks for possession and accounting, the mortgagee is liable to account and surrender property and as such there is no limitation arises. Further, even going by the terms of the document it is clear that the document was executed on 14/3/49 for a period of six years and it was mentioned in the document that after the period of six years, if the mortgagor did not exercise the right of payment of amount and ask for return of property, then the mortgagee is at liberty to move the court for sale of the property and realise the amount. That shows that it was a combination of usufructuary mortgage and simple mortgage and thereby it can be treated as a analogous mortgage and as such the parties are governed by the terms of the document and then the amount will become due only after six years and as such if that six year period is added, then the right of sue will accrue only on 14.3.1955 and the suit was filed in the year 1983 within 30 year of period of limitation provided under Article 61 of the Limitation Act and as such the lower appellate court was not justified in dismissing the suit on the ground of limitation. Learned counsel also argued that since the appellate court also confirmed the other findings of the trial court 14 on the question of maintainability and the claim of tenancy made by the defendants concurrently, the same cannot be reopened by this Court in an appeal filed by the appellants/plaintiffs as no appeal has been preferred by the respondents 1 and 2 on this aspect and not even a cross objection has been filed. Further the Land Tribunal as well as the courts below have properly appreciated the documentary and oral evidence and rightly came to the conclusion that respondents 1 and 2 are not entitled to get the benefit of deemed tenancy and rightly rejected their claim. So the learned counsel prayed for allowing the appeal. She had also relied on several decisions in support of her case which can be discussed later, while discussing the points separately. 12. On the other hand, counsel for the respondents 1 and 2 contended that it cannot be treated as a usufructuary mortgage and as such the decision relied on by the learned counsel is not applicable to the facts of the case. He had also argued that if it is treated as analogues mortgage, then the amount will become due even on the date of execution of the document and as such, the suit filed beyond the period of 30 years is out of time. Further, the lower appellate court had properly appreciated the documentary evidence in the absence of oral evidence on that aspect and also the legal provision under Order VIII Rule 6 that the saving point of limitation has not been specifically 15 pleaded in the plaint and as such the finding regarding limitation by the lower appellate court is perfectly justifiable. The counsel also argued that since the appeal filed by the defendants has been allowed and the suit has been dismissed, the respondents 1 and 2 cannot file appeal against that under Section 96 or Cross Objection under Order XLI Rule 22 under Code of Civil Procedure. In such circumstances the contesting respondents are entitled to support the decree agitating the finding against them as well in the appeal filed by the plaintiffs against the dismissal of the suit so as to sustain the decree. He had also argued that the Land Tribunal had come to the conclusion that since it was a mortgage, respondents 1 and 2 are not entitled to get fixity tenure and since there is no provision for payment of 'Michavaram' in the document and also a provision for renewal of lease, respondents 1 and 2 are not entitled to get the benefit of deemed tenancy under Section 6 B of the Kerala Land Reforms Act is also not justifiable. Once it is proved that it is a mortgage and the mortgagee is in possession of the property at the time of commencement of Kerala Land Reforms Amendment Act, 1969 in any area where Malabar tenancy Act, 1929 is extended and if it is proved that he was holding the property in consideration of payment of customary dues or any amount specified as 'Michavaram' in the document evidencing the 16 transaction or there is a provision in such document for renewal on the expiry of specified period, then he is entitled to get the benefit. In this case though the word 'Michavaram' has not been mentioned, there was a liability to pay rent for keeping possession of the property, out of which the mortgagee was permitted to adjust certain amount towards interest and he was directed to pay the balance rent to the land lord and obtain receipt. Further even prior to this document the predecessor in interest of 1[st] defendant has been in possession of the property as a lessee under the tharawad of the plaintiffs and in spite of the mortgage created, the right to pay rent for possession of the property continued and that will go to show that there is a liability to pay rent which is equallent to 'Michavaram' as defined under the Kerala Land Reforms Act and these aspect have not been considered by the courts below. He had also argued that the Kerala High Court has held that the word 'Purappadu' mentioned in the document is synonymous with 'Michavaram' and as such the benefit of deemed tenancy ought to have given to the respondent 1 and 2. So according to him, even if it is found that the suit is not barred by limitation, even then the claim of tenancy has to be upheld in favour of respondent 1 and 2 and thereby the appellants are not entitled to get a decree for redemption and the suit is liable to be dismissed and the appellate 17 court judgement has to be confirmed. 13. The appellant has filed C.M.P.No.2566/1998 for reception of additional document, namely the partition deed of 1958 entered into between the legal representatives of Lonappan, namely first defendant and his brother by which the plaint schedule properties were allotted to him. This court by separate order allowed the same and received the document and marked the document as Ext.A5 in this appeal. 14. It is an admitted fact that the plaint schedule properties and other properties belonged to the tharawad of the plaintiffs by name Valiparambil tharawad. It is also not in dispute that then Karnavar of the tharawad by name Krishnan executed Exts.B1 to B3 mortgages of the year 1942 and 1943 respectively in favour of one Lonappan, who is the father of the 1[st] defendant. It is also an admitted fact that the members of the plaintiffs' tharawad filed O.S. No.521/46 for partition of the property and Sri.K.L.Kalyana Krishna Iyyer an advocate was appointed as receiver in the partition suit. It is also an admitted fact that in order to discharge the liabilities covered by Exts.B1 to B3 and also in respect of a money decree obtained by third party and also to meet the remuneration expenses payable to receiver, as per order in I.A.No.216/1949, of the court, permission has been granted to the receiver to execute a mortgage deed in favour of 18 Kuruthukulangara Lonappan Mappila, S/o Gouri Mappila, who is the father of the 1[st] defendant for a total amount of Rs.15,376.10 for a period of six years and accordingly Ext.A1 mortgage deed No.202/49 dated 11.03.1949 of SRO Thriprayar was executed. 15. It is also not in dispute that the said Lonappan had released certain items from the mortgage liability created as per Ext.B1 to B3 documents while executing Ext.A1 document. It is also not in dispute that he had subsequently sold certain items to a third party to realise the amount towards the mortgage amount and only the balance amount was in due. It is in a way admitted that certain properties covered by Ext.A1 mortgage deed were in outstanding possession of tenants and the said Lonappan had obtained their rights also and subsequently sold some of those properties. As per the present status only an amount of Rs.11,626.10 was due as mortgage money and 112 para 4 Ednagazhi of paddy and Rs.17 and 8 annas as Purappad which is payable by the mortgagee as per the document. It is also in a way admitted that the items 7, 8 and 9 in the schedule of mortgage deed were sold by Lonappan in the capacity as mortgagee to one Oliparambil Kesavan as per document No.628/1958 of SRO, Thriprayar for a sum of Rs.3,750/- with a liability for the purchaser to pay 33 para, 7 Edangazhi and 2¼ Nazhi paddy as annual rent relating to the 19 properties covered by the document. 16. It is also in away admitted that as per Ext.A1 mortgage deed, it was stipulated that mortgagee shall pay 876 paras and 5 Edangazhi of paddy and Rs.17 and 8 annas as annual rent to Valiparambil tharawad and out of rent payable, mortgagee was permitted to appropriate to 730 paras, 3 Edangazhi and 1¾ Nazhi paddy towards interest of the mortgage money and the balance rent of 146 para 1 Edangazhi and 2 ¼ nazhi paddy and Rs.17 and 8 anna has to be paid to the tharawad towards annual rent for a period of 6 years and the amount has to be paid during the month of Makaram. It is also in away admitted that there was a stipulation in the mortgage deed that mortgagee shall obtain receipt for payment of balance rent and in default, he shall be liable to pay interest. It is also in away admitted that after the death of Lonappan, the items 1 to 3 mentioned in the mortgage deed of 1949 which were shown as plaint schedule properties along with the properties of Lonappan partitioned among the legal heirs of Lonappan as per document No.637/1958 acknowledging the liability under the mortgage and these properties were set apart to the share of 1[st] defendant with liability to pay the annual rent as provided under the mortgage deed and 1[st] defendant is in possession and enjoyment of the same. 20 17. The trial court found that the suit is not barred by limitation, whereas the appellate court, on the basis Order 8 Rule 6 without specifying the reason for extension of limitation and without producing the document, based on which the acknowledgment is relied on, held that the plaintiff is not entitled to get the benefit and found that the suit is barred by limitation as the mortgage was of the year 1949 and the suit was filed in the year 1983, beyond 30 years of limitation provided and dismissed the suit. On all other aspects, the lower appellate court had concurred with the finding of the trial court and found in favour of the appellants/plaintiffs before the court below. 18. As regards the maintainability of the suit is concerned, though there was no joint family in existence after coming into force of Kerala Joint Family System Abolition Act had come into force, the suit for redemption filed by one of the co-sharer on behalf of the other coshares, is maintainable. So the courts below were perfectly justified in coming to the conclusion that the suit filed by some of the co-owners for redemption on behalf of the other co-owners is perfectly maintainable and that concurrent finding of the courts below do not call for any interference. 19. The next question that arises for consideration is, whether the suit is barred by limitation as found by the lower appellate court, 21 even if there is no acknowledgment as contended by the plaintiffs in the plaint. It is true that, in the plaint it was not specifically mentioned that in the partition deed is of 1958, by which the plaint schedule properties were partitioned and allotted to the first defendant, there was an acknowledgment of liability, but it was mentioned that the existence of mortgage and partition of mortgage right was mentioned and it was also mentioned in the plaint that the first defendant is in possession of the property as a mortgagee in possession in continuation of his predecessor and the first defendant's liability to pay purappad was mentioned in the document and these aspects were not denied in the written statement, but admitted the mortgage and also the partition of the mortgage right and also execution of 1958 partition deed. The case of the defendants 1 and 2 in the written statement was that, though it was styled as a mortgage, the predecessor in interest was in possession of the property as a lessee or tenant under the 'tharavad'. 20. Before going into the facts of the case, let me consider the precedents on this aspects. 21. In the decision reported in _**Muhammad Sher Khan v. Raja Seth Swami Dayal** (AIR 1922 PC 17)_ , it has been held that, by Section 60 of Transfer of Property Act, it is provided that at any time 22 after the principal money has become payable, the mortgagor has a right to redeem and a suit to enforce it is called a suit for redemption. The question as to whether the mortgagor's right to redeem is suspended by the provision in the mortgage which purports to entitle the mortgagee to remain in possession for twelve years from the date on which he took possession and while considering this, the privy council has held that, the rights and liabilities of the litigants must be depends upon the terms of the instruments as controlled by the Transfer of Property Act, for, even if it were an analogous mortgage, its provision offend against the statutory right of redemption conferred by Section 60 and provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. An analogues mortgage enabling a mortgagee after lapse of time, and in the absence of redemption to enter and take the rents in satisfaction of the interest would be perfectly valid if it did not also hinder an existing right to redeem. But it is this that the present mortgage undoubtedly purports to effect. It is usually stated to be for five years and after that period, the principal money became payable. This, under Section 60 of Transfer of Property Act, is the event on which the mortgagor had a right on payment the mortgage money to redeem. 23 22. In the decision reported in _**Ganga Dhar v. Shankar Lal and Others** (AIR 1958 SC 770)_ , it has been held that, ordinarily and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on expiration of the specified period. The right of redemption therefore cannot be taken away. The courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of 6 months, the mortgagor will have no claim over the mortgage property and the mortgage deed will be the deemed to be deed of sale in favour of the mortgagee cannot be sustained. It plainly takes away all together the mortgagor's right to redeem the mortgage after a specified period. This is not permissible, for, “once a mortgage always a mortgage” and therefore always redeemable. 23. It is further held in the same decision that, an analogous mortgage enabling a mortgagee after lapse of time and in the absence of redemption to enter and take the rents in satisfaction of the interest could be perfectly valid if it did not also hinder an existing right to redeem. 24 24. Further in the same decision, it has been held that, since in that case, the usufructuary mortgage was created for a period 85 years, the right to redeem will arise only after the period of 85 years and not prior to that. But the clause in the mortgage after the period of 85 years, if the mortgagor did not redeem within a period of 6 months, then the right of redemption will be lost to the mortgagor, is held to be invalid and it will be deemed as clog on redemption. Same view has been reiterated in the decision reported in _**Mohammed Moideen v. Mohammed Moideen** (1999 (3) KLT 189)_ and _**Harbans v. Om Prakash and others** (2006)1 SCC 129)._ 25 _._ In the decision reported in _**Singh Ram v. Sheo Ram** [2014 (4) KLT 71 (SC)],_ the Apex Court has held that, usufructuary mortgage cannot be treated at par with any other mortgage as doing so, will defeat the scheme of Section 62 of Transfer of Property Act and equity. This right of usufructuary mortgagor is not only an equitable right, it has statutory recognition under Section 62 of Transfer of Property Act. There is no principle of law on which this right can be defeated. Any contrary view which does not take into account the special right of usufructuary mortgagor under Section 62 of the Transfer of Property Act has to be held to be erroneous on this ground or has to be limited to a mortgage other than the usufructuary 25 mortgage. Accordingly we uphold the view taken by the Full Bench, that in case of usufructuary mortgage mere expiry of period of 30 years from the date of creation of mortgage does not extinguish the right of the mortgagor under Section 62 of the Transfer of Property Act. 26. It is further held in the same decision, that the special right of usufructuary mortgagor under Section 62 of the transfer of property Act, to recover possession commences in the manner specified therein, that is when the mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor, until then limitation does not start for purpose of Article 61 of schedule to the limitation Act. 27. So it is clear from the above decisions that, in the case of a usufructuary mortgage when there is a time provided for enjoyment of the property by the mortgage, then right of redemption will arise only after that period is over. Further in the case of usufructuary mortgage, under Section 62 of Transfer of Property Act, if there is a provision in the mortgage deed for adjustment of the profit towards the interest and partly towards interest and partly towards principal amount or till the mortgagor deposit the amount, the right of redemption of the mortgagor will not be commenced. In such cases, it is not the period of 26 30 years mentioned under Article 61 of the Limitation Act, is the period of limitation for filing a suit for redemption. Further in the case of analogous mortgage, if there is a period provided in the mortgage, then the liability to pay the principal amount accrues only after the period mentioned in the document. With this principle in mind, the case in hand has to be considered. 28. In Ext.A1, the mortgage deed, which was executed on 12[th] March, 1949, the period was mentioned as 6 years. It is also further mentioned that, the possession of the property had been given to the mortgagee. It is further mentioned in the document that the annual rent payable has been fixed as 876 para and five idangazhy paddy and Rs.17 and 8 anas and out of this, the mortgagee was permitted to adjust 730 para and 3 idangazhy 1[3/4] nazhy paddy towards the interest and the balance of 146 para, one idangazhy and 2[1/4] nazhy paddy and Rs.17 and 8 anas has to be paid as purappad and the period of mortgage was fixed as six years. It is further mentioned in the document that in case after the period is over, the mortgagor did not pay the amount then, the mortgagee has got right to file suit and recover the amount through court. So it is clear from that the period of mortgage was fixed as six years, and the mortgagee was put in possession of the property and as such, the right of the mortgagor to 27 redeem even other wise will commence only after the expiry of six year period mentioned in the document, that is after 12.3.1955. If it is treated as a usufructuary mortgage, then in view of the dictum laid down in the above decisions, till the mortgagor deposit the amount, the mortgagee is entitled to be in possession and enjoy the usufructus in view of Section 62 of Transfer of Property Act. If this is treated as an analogous mortgage, as it is a combination of usufructuary mortgage and is simple mortgage, as right of sale after the period of mortgage through court has been conferred on the mortgagee through court along with giving possession of the property, then also, the right of redemption will start only after the period of six years mentioned in the document as there is no provision made in the document reserving the right of the mortgagor to redeem the mortgage prior to the period fixed in the mortgage deed. These aspects were not considered by the lower appellate court before coming to the conclusion that the suit is barred by limitation reckoning the starting period of limitation from the date of execution of the mortgage deed namely 12.3.1949. If the above principles are applied, then the right to sue for the mortgagor arises only from 12.3.1955 and the suit was filed on 13.12.1983 which is well within 30 years and as such, the suit is within time and finding of the lower appellate court that the suit is barred by limitation is 28 unsustainable in law and the same is liable to b e set aside and I do so. So the suit is not barred by limitation and the suit was filed within time and the plaintiff is entitled to get a decree for redemption of the plaint schedule properties. 29. The counsel for the contesting respondents submitted that though the land tribunal as well as the first appellate court found that the first defendant is not entitled to get the benefit of Section 6B of the Kerala Land Reforms Act and invoking Order 41 Rule 22 of the Code of Civil Procedure, the first respondent is entitled to support the decree of dismissal of the suit by the first appellate court, challenging that finding also in the appeal filed by the plaintiffs without filing a cross objection as he has no right of filing appeal against the finding as ultimately the suit was dismissed by the first appellate court. He had also argued that, the both the courts below have not properly understood the implications of Section 6B of the Kerala Land Reforms Act. Merely because there was no provision for payment of michavaram, alone is not sufficient to deny the benefit. There is a provision for payment of purappad which is sufficient for this purpose. 30. On the other hand, the learned counsel for the appellants submitted that since both the courts have concurrently found that the first defendant is not entitled to get the benefit of Section 6B of the 29 Kerala Land Reforms Act, he cannot agitate the same in the appeal filed by the plaintiffs without filing a cross objection. 31. Order 41 Rule 22 CPC reads as follows: ## _**22. Upon hearing respondent may object to decree as if**_ _**he had preferred a separate appeal** .- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour any may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow._ _[Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection is respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.]_ ## _(2)_ _**Form of objection and provisions applicable thereto** .-_ _Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto._ _[****]_ _4. Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit._ _(5) The provisions relating to appeals by indigent persons_ 30 _shall, so far as they can be made applicable, apply to an objection under this rule._ 32. It is clear from the above provision, that any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour and may also take any cross objection) to the decree which he would have taken by way of appeal provided he has filed such objection in the appellate court within one month from the date of service on him, or his pleader of notice of the day fixed for hearing the appeal or within such further time as the appellate court may deem fit to allow. Explanation to this rule says that a respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may under this Rule file cross objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is wholly or in part in favour of that respondent. 33. In the decision reported in _**Banarsi and others v. Ram Phal** (2003) 9 SCC 606)_ , it has been held that, an appeal lie against decree and not against judgment or any findings and only persons aggrieved by the decree is entitled to file an appeal. In that case, it 31 has been observed that in a suit for Specific Performance of contract for sale, relief of compensation or refund of money/deposit in case of refusal of specific performance also sought by the plaintiff and court while refusing a larger relief of specific performance, granted a smaller relief of compensation or refund, the plaintiff would be a person aggrieved by the decree. When an appeal is filed by the defendant against a grant of relief of compensation or refund, the plaintiff as respondent can seek the relief of specific performance of contract or modification of the decree only by taking cross objection or filing appeal of his own. In the absence of cross objection or cross appeal modification of the decree and grant of relief of specific performance by the appellate court would be without jurisdiction. 34. In the decision reported in _**S. Nazeer Ahmed v. State Bank of Mysore and others** (AIR 2007 SC 989)_ , it has been held that, the respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself for supporting the decree passed by the trial court, it is not necessary for a respondent in an appeal to file a memorandum of cross objection challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross 32 objection is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. It is further held in the same decision that in an appeal against dismissal of the suit, the appellant is entitled to challenge all the findings rendered against him by the trial court and seek for a decree as prayed for in the plaint from the appellate court. Once appellant is found entitled to decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate finding of the trial court on which the dismissal of the suit was based. For this, no recourse to Order 41 Rule 33 is necessary. Order 41 Rule 33 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power to be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order 41 Rule 33 of the Code, in a case where the suit of the plaintiff has come up in appeal claiming a decree as prayed for by him in that suit. 35. In the decision reported in _**Puthumana Meenakshi**_ 33 _**Amma v. Puthumana Kalliani Amma and Others** (2010 (4) KHC 282)_ , the question arose as to whether in a suit for partition of the property claiming it to be a thavazhy property was dismissed by the trial court, holding that it was self acquired property. But in the appeal filed by the plaintiffs, the first appellate court found that it was a self acquired property, but passed a decree holding that there was blending of property with thavazhy property. The question arose as to whether in the second appeal filed by the defendants, plaintiff can raise the issue, whether the acquisition is for and on behalf of thavazhy without filing cross objection, challenging the finding that the property is self acquired, the Division Bench of this court, held that, in view of Order 41 Rule 22, a party against whom an issue has been found is entitled to raise the issue in appeal preferred by the opposite party even without filing cross objection. 36. In this case, the suit was decreed by the trial court but reversed by the first appellate court on the ground of limitation and on all other grounds including the claim of fixity of tenure claimed by defendants 1 and 2, the finding of the trial court was confirmed. Since the suit was dismissed by the first appellate court, there is a decree in favour of the contesting respondents and so they cannot file an appeal against the findings which were against them. So in such cases, if an 34 appeal has been preferred by the plaintiff, against the decree, they can support the decree not only on the basis of the findings in their favour but also challenge the findings against them as well even without filing a cross objection under Order 41 Rule 22 of the Code of Civil Procedure. 37. So the respondents can challenge the finding against them in the second appeal filed by the plaintiffs in order to sustain the ultimate decree passed in their favour even without filing a cross objection as what is sought to be agitated is only a finding on an issue and not any relief claimed by the defendants independently which was rejected which can be independently agitated by the respondents by filing an appeal or a cross objection. 38. Then the question is whether the defendants 1 and 2 are entitled to get the benefit of Section 6B of the Land Reforms Act, which reads as follows: ## _**6B. Certain mortgagees in areas to which Malabar**_ ## _**Tenancy Act extended to be deemed tenants** :- Notwithstanding_ _anything to the contrary contained in any law,or in any contract, custom or usage, or in any judgment, decree or order of Court, a mortgagee with possession of immovable property at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, in any area in the State to which the Malabar Tenancy Act, 1929, extended, shall be deemed to be a tenant, if-_ 35 _(a) he was holding such property in consideration of payment of customary dues, or any amount specified as michavaram in the document evidencing the transaction; or_ _(b) there is a provision in such document for renewal on the expiry of a specified period._ 39. It is clear from the section that certain mortgagees were given the status of the deemed tenant if the conditions mentioned therein are satisfied namely: _i. That the mortgage must be subsisting and the mortgagee must be in possession of the property as on the date of commencement of the Kerala Land Reforms (Amendment) Act 1969 in any area in the State in which Malabar Tenancy Act, 1929 extended._ _ii. He was holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing the transaction._ _iii. There is provision in such document for renewal on expiry of the specified period._ 40. Section 2(9) of the Land Reforms Act defines “customary dues” means anything, other than rent, michavaram or renewal fees:- _i. Landlord; or_ _ii. Allowed to be taken by the landlord from the holding, periodically or on the happening of any event or on the occasion of any festival, and includes onakazhcha, utsavakoppu, perunnalkazcha and aradianthram._ 36 So this shows that customary dues means other than rent or michavaram or renewal fees mentioned in the document. 41. Section 2(36) of the Kerala Land Reforms Act defines “michavaram” means the money or produce or both specified as michavaram in the document evidencing the transfer by a person of an interest in specific immovable property to another person, and includes the balance of money or produce or both payable periodically under the document evidencing such transfer after deducting from the money or produce or both due to the transferor, the interest due on the amount advanced to the transferor, but does not include customary dues. 42. Section 2(49) of the Kerala Land Reforms Act defines “rent” means whatever is lawfully payable in money or in kind or in both by a person permitted to have the use and occupation of any land to the person so permitting, and includes michavaram, but does not include customary dues. 43. In the decision reported in _**Narayanaswami Iyer v. Kuttan**_ (ILR 1974 Kerala 363) considered the question whether holding of “karipanayam” in Malabar providing for payment of “purapad” in “paddy” will be a deemed tenant under the Act and also considered the question whether the mortgagee includes his 37 successors and assignees. That was a case where the consideration for the karipanayam is Rs.9,500/- and the rent of the properties was mentioned therein as 1663 paras of paddy and Rs.10 per annum and out of this the interest on the mortgage amount is shown as 1,163 paras of paddy and Rs.9 with the result the balance left is 500 paras of paddy and Rs.1 per annunm. This has to be paid as purapad annually. Further there was a reference in the document itself that in case of default of payment of michavaram, interest has to be paid. So in the document itself, the word purapad as well as michavaram were mentioned and in such circumstances, the michavaram mentioned in the document was treated as synonym for purapad as defined under section 2(36) of of the Kerala Land Reforms Act and under such circumstances, the benefit of Section 6B of the Kerala Land Reforms Act was given. 44. But in this case, except stating the word 'purapad' payable annually there was nothing mentioned as michavaram in the document. Further there was no renewal clause mentioned in the document as well. Further in the manner in which the paddy as well as amount has to be paid has been specifically mentioned in the document. Such a specification was not mentioned in the document namely Ext.A1. There is no dispute regarding the fact that it was a 38 mortgage and possession was given as as per Ext.A1. The period of mortgage was mentioned as six years. Right of sale was also conferred on the mortgagee if the amount is not paid. So under such circumstances, there is no doubt regarding the fact it is a mortgage and not a lease as rightly held by the Land Tribunal and confirmed by the first appellate court. Except Section 6B, no other provision of the Land Reforms Act will be applicable to the case of respondents 1 and 2. Further “or” mentioned in Section 6B has to be read as “and”. Otherwise there will not be any meaning for that section as without liability to pay michavaram, mere provision for renewal alone will not give the status of a deemed tenant. In order to apply that benefit, both the conditions namely liability to pay michavaram and renewal clause must be there in the document, without which it cannot be said that it will be having the character of a person in possession as a deemed tenant. Purapad normally means annual rent payable. That may even include michavaram but does not include customary dues as per the definition of rent in the Land Reforms Act. If there is any provision in the document that out of the rent, the amount due to the Government has to be paid, then that provision cannot be treated as michavaram or customary due. 45. In the decision reported in _**Sarojini Amma v. Sumathy**_ 39 _**Amma** (1977 KLT 394)_ , a Division Bench of this court has considered the question, the inclusive definition of rent includes michavaram will be sufficient if the word rent is mentioned in the document so as to interpret the same as michavaram also and observed that, we find it difficult to read and to interpret the above clause in the way in which the counsel for the respondent would have as to read and interpret. There is, in the definition a main clause and in inclusive clause. The main clause requires only the specification of payment as michavaram and nothing else. This inclusive clause requires a striking of balance of money or produce or both payable periodically after deducting from the money or produce or both due to the transferor. The interest due on the amounts advanced to the transferee. 46. It is further observed in the same decision that, we are unable to understand the inclusive clause in the definition of Section 2 (36) as illustrative of the main clause. It is impossible to record it so as the counsel for the respondent contended. The main clause requires a specification eo nomine of payment as michavaram, the inclusive clause does not require any such specification and brings in certain ingredients such as adjustments of rights and liabilities and striking of balance after such adjustment. Far from being illustrative of the main clause, the inclusive clause seems to be destructive of the main clause, 40 in so far as it dispenses altogether with the only requirement in the main clause, after expressed specification of payment as michavaram, understood differently it is restrictive of the main clause, in so far as it introduces the element of adjusting accounts and striking of balance. In _**Chori Ouso and Others v. Sasoon Helegua and Others** (1968 KLT 428),_ a Full Bench of this court referred to and cited with approval the decision of Justice _**Mc. Cardie in Mellows v. Low** 1923 (1) K.B. 522 at 526_ , the following quotation from the judgment was approved: _“In any view the work 'includes' as used in para (g) is not a term of limitation or precise definition; it means what it says - That it includes the matters thereafter mentioned; in other words, it is a word or enlargement rather than of restriction”._ 47. We have considerable difficulty to understand the inclusive clause in Section 2 clause (36) of the Act either as restrictive or as destructive of the main clause in the definition. We think that the words “after deducting from the money or produce or both due to the transferor ........... customary dues” should be tacked on both to the main clause and to the inclusive clause. This is only a matter of punctuation of the clause. Otherwise on mere specification in the document, a payment which can never pass as michavaram, will have to be regarded as such. 48. So it is clear from this decision that unless the document says that it is michavaram, what ever name provided therein cannot 41 be equated with the word michavaram, unless there is some indication regrading the intention of the parties which will be available to read this as synonym with the word purappad or rent as has been held in the decision reported in _**Narayanaswami Iyer v. Kuttan** (ILR 1974 Kerala 363)_ , such an interpretation is not possible in this case as the word used is only purappad, which means annual rent payable and nothing more. So it cannot be interpreted as michavaram and as such the tenant is not entitled to get the benefit under Section 6B of the Act. Since there is nothing mentioned in Ext.A1 that purapad or annual rent mentioned in the document relates to or treated as synonym for michavaram as in the case of the decision reported above, it cannot be said that the mortgagor had treated the amount payable as michavaram and in such circumstances, the mortgagee in possession is not entitled to get the benefit of Section 6B of the Land Reforms Act. So under such circumstances, the Land Tribunal as well as the First Appellate Authority were perfectly justified in coming to the conclusion that respondents 1 and 2 are not entitled to get the benefit of Section 6B of the Land Reforms Act and as such, they are not entitled to get fixity of tenure enabling them to avoid redemption or surrender of property to the mortgagor. So this Court do not find any reason to interfere with the finding of the courts 42 below on this aspect. 49. The counsel for respondents 1 and 2 submitted that, under Order 34 Rule 7, the amount payable has to be specifically mentioned which has not been done in this case, as such the decree is not proper. 50. Order 34 Rule 7 reads as follows: _**[7. Preliminary decree in redemption suit** .-(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree-_ _(a) ordering that an account be taken of what was due to the defendant at the date of such decree for-_ _(i) principal and interest on the mortgage,_ _(ii) the costs of suit, if any, awarded to him, and_ _(iii) other costs, charges and expenses properly incurred by him up to interest thereon; or_ _(b) declaring the amount so due at that date; and_ _(c) directing-_ _(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjusted due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall_ 43 _also, if necessary, put the plaintiff in possession of the property; and_ _(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree-_ _(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be, sold, or_ _(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property._ _(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule(1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.]_ The has two parts. Part (a) says that ordering the account to be taken what was due to the defendant at the date of such decree for (1) Principal and interest on mortgage, (2) cost of the suit if any awarded to him and (3) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security together with interest thereon or (b) declaring the amount so due on that day. 51. So it is clear from this in a case where accounting is required for quantifying the amount, then that has to be done in the final decree and only a direction for accounting has to be given. In 44 cases where the amount can be quantified on the basis of the document itself, in such cases, the amount will have to be declared in the preliminary decree with a direction to deposit the amount within a particular time. In this case a reading of Ext.A1 will go to show that there are certain directions for adjustment of rent payable towards the interest and also towards payment of purappad to the landlord. In such cases accounting will be required for quantifying the amount as to who is liable to pay, to whom and what is the amount payable etc. In such cases, quantifying the amount in the preliminary decree itself is not possible. So under such circumstances, the trial court was perfectly justified in passing a preliminary decree under Order 34 Rule 7(a), directing the account to be taken in the final decree for quantifying the amount. So there is no merit in the submission made by the counsel for respondents 1 and 2, that the decree is bad for not quantifying the amount and the same is liable to be rejected. 52. In view of the discussions made above, the finding of the First Appellate Court that the suit is barred by limitation and as such the suit is liable to be dismissed is unsustainable in law and the same is liable to be set aside and the finding of the trial court that the suit is within time and not barred by limitation and the plaintiffs are entitled to get redemption of mortgage have to be restored. So the 45 second appeal has to be allowed and the decree and judgment passed by the First Appellate Court to the extent holding that the suit is barred by limitation and on that ground dismissing the suit is set aside and all other respects the finding of the trial court as well the First Appellate Court are hereby confirmed. In the result, the substantial questions of law raised on both sides are answered accordingly and the second appeal is allowed and the decree and judgment passed by the First Appellate Court dismissing the suit on the ground of limitation is set aside and the decree and judgment passed by the trial court is restored. The plaintiffs are entitled to get a preliminary decree for redemption as found by the trial court. The appellants are entitled to file an application for final decree to work out their remedies as found by the trial court within six months from today as provided under Order 34 Rule 7 of the Code of Civil Procedure. The cost of the appeal also will come out of the estate to be worked out at the time of final decree as found by the trial court. Registry is directed to send the records and the judgment of the trial court immediately. _Sd/-_ ## **K. RAMAKRISHNAN, JUDGE.** //True copy// P.A. to Judge ss/rms/cl