Sree Rama Bhat and others v. Linganna Naik and others (Second Appeal Nos. SA.580/1997 (B) and SA.809/1997 (D))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **SA.No. 580 of 1997 (B)** **-----------------------** **AGAINST THE ORDER/JUDGMENT IN AS 213 & 207 OF 1996 of SUB COURT, KASARAGOD DATED 31.01.1979** **AGAINST THE ORDER/JUDGMENT IN OS 106/1956 of PRL.MUNSIFF, KASARAGOD DATED 14.06.1996** **APPELLANTS IN S.A. - RESPONDENTS 1 TO 8 IN A.S. 213/96 & APPELLANTS IN A.S. 207/96 IN THE LOWER APPELLATE COURT -SUPPLEMETAL PETITIONERS 2 TO 9 IN I.A.764/73 IN O.S.106/56:** **-------------------------------------------** ***.1. SREE RAMA BHAT, S/O. T. SUBRAHMANYA BHAT, RESIDING AT THONDAMOOLE HOUSE, MUGU VILLAGE, KASARAGOD TALUK, P.O. MUGU (DIED)** **2. ISHWARA BHAT, S/O. -DO-** **IN -DO-** **3. VENKATESHWARI AMMA, W/O. -DO-, RESIDING AT KOLKAR HOUSE, MUGU VILLAGE, KASARAGOD TALUK, P.O. MUGU.** **4. T. SRIKRISHNA BHAT, S/O. -DO-,** **IN -DO-** - **** 5. T. LEKSHMI DEVI, D/O. -DO-,** **RESIDING AT JELLY HOUSE, NARANGANA VILLAGE, PUTHUR TALUK, KARNATAKA STATE (DIED)** **6. T. SAVITHRI DEVI, D/O. -DO-,** **RESIDING AT SAJANKALA HOUSE, EDNAD VILLAGE, KASARAGOD TALUK, P.O. EDNAD** **[ SA.580/1997, SA.809/1997 ]** 2 ## **7. T. PARVATHI DEVI, D/O. -DO-, RESIDING AT KOLKAR HOUSE, MUGU VILLAGE, KASARAGOD TALUK, P.O. MUGU** **8. T. SREEDEVI, D/O. - DO-,** **RESIDING AT THONDAMOOLE HOUSE, MUGU VILLAGE, KASARAGOD TALUK.** - ***. DEATH RECORDED AS PER ORDER DATED 13.09.2017** - **** DEATH RECORDED AS PER ORDER DATED 13.09.2017.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN** **RESPONDENT NO.1 IN S.A. - APPELLANT NO.1 IN A.S.213/96 & NOT A PARTY TO A.S.207/96 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL RESPONDENT NO.46 IN I.A.764/73 IN O.S.106/56:** **---------------------------------------------** ***1. LINGANNA NAIK, S/O. VITTAPPA NAIK, RESIDING AT UPPINE PULITHADI, MUGU VILLAGE, KASARAGOD TALUK, P.O. ARIPADY, VIA. PERDALA, KASARAGOD - 671 551 (NAME IS WRONGLY STATED AS LINGAPPA NAIK IN THE DECREE IN A.S.213/96) (DIED)** **RESPONDENT NO.2 IN S.A. - APPELLANT NO.2 IN A.S.213/96 & RESPONDENT NO.1 IN A.S.207/96 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL RESPONDENT NO.47 IN I.A.NO.764/73 IN O.S.106/56** **-----------------------------------------------** **2. RAMANNA NAIK, S/O. VITTAPPA NAIK, RESIDING AT UPPINE PULITHADI, MUGU VILLAGE, P.O. ARIPADY, VIA. PERDALA, KASARAGOD TALUK, KASARAGOD - 671 551** **[ SA.580/1997, SA.809/1997 ]** 3 **RESPONDENT NO.3 IN S.A.- APPELANT NO.3 IN A.S.213/96 & NOT A PARTY TO A.S.207/96 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL RESPONDENT NO.48 IN I.A.764/73 IN O.S.106/56** **------------------------------------------** **3. NARAYANA NAIK, S/O. -DO-, IN -DO-** **RESPONDENT NO.4 IN S.A.- APPELLANT NO.4 IN A.S.213/96 & RESPONDENT NO.2 IN A.S.207/96 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL RESPONDENT NO.49 IN I.A.764/73 IN SUIT.** **--------------------------------------------** **4. BALAKRISHNA NAIK, S/O. RAMANNA NAIK, RESIDING AT MUGU VILLAGE, KASARAGOD TALUK, P.O. ARIPADY, VIA. PERDALA, KASARAGOD - 671 551** **RESPONDENTS 5 TO 28 IN S.A. - RESPONDENTS 9 TO 32 IN A.S.213/96 & NO PARTIES TO A.S.207/96 IN THE LOWER APPELLATE COURT - RESPONDENTS** **6, 12, 16, 17, 18, 20 TO 25, 28, 30 TO 34 &** **36 TO 42 IN I.A. 764/73 IN O.S.NO.106/56** **--------------------------------------------------** ***#5. NARAYANA SHANBHOGUE,** **S/O. KUDLU SADASHIVA SHANBHOGUE, RESIDING AT KUDLU VILLAGE, P.O. ARIPADY, VIA. PERDALA, KASARAGOD - 671 551** **6. MALINGA NAIK, S/O. RAMA NAIK, RESIDING AT CHENNEGULI IN MUGU VILLAGE, P.O. ARIPADY, VIA. PERDALA, KASARAGOD - 671 551** **7. VISHNU SHANBHOGUE, S/O. KESHAVA SHANBHOGUE, RESIDING AT PADY VILLAGE,** **KASARAGOD TALUK, P.O. PADI** **[ SA.580/1997, SA.809/1997 ]** 4 **8. SHILAVATHI AMMA, D/O. LATE NARANGADI SUBRAYA SHANBHOGUE, IN -DO-DO9. KAMALAMMA, W/O. KESHAVA SHANBHOGUE IN -DO-DO10. BHUVANESHWARI AMMA, W/O. VENKATESH SHANBHOGUE, RESIDING AT KUDLU VILLAGE, KASARAGOD TALUK, P.O. RAMDAS NAGAR. 11. KRISHNA SHANBHOGUE, S/O. -DO-, IN -DO12. GEETHA, D/O. -DO-, IN -DO13. GOPI, S/O. -DO-, IN -DO14. SHAMBA, D/O. -DO-, IN -DO15. VRINDA, D/O. -DOIN -DO16. YAMUNA, W/O. JANARDHANA NAYAK, RESIDING AT BAKILAPADAVU, DARKESTU HOUSE, P.O. ADYANADKA, ENMAKAJE VILLAGE, KASARAGOD TAUK** **17. GIRIJA, W/O. BALAKRISHNA NAYAK, RESIDING AT BEEBI MAJALU HOUSE, GOLITHOTTU VILLAGE, PUTHUR TALUK, P.O. GOLITHATTU, KARNATAKA STATE.** **18. CHANDRAVATHI, W/O. SEETHARAMA NAYAK, RESIDING AT AJERU HOUSE, PUNACHA VILLAGE, PUTHUR TALUK, P.O. PUNACHA, KARNATAKA STATE.** **[ SA.580/1997, SA.809/1997 ]** 5 **19. LINGANNA NAYAK, S/O. KRISHNAPPA NAYAK, RESIDING AT BEEBI MAJALU HOUSE, GOLITHATTU VILLAGE AND POST, PUTHUR TALUK, KARNATAKA STATE.** **20. KAMALA, W/O. CHANDRASHEKHARA NAYAK, RESIDING AT BUKILA PADAVA HOUSE, ERMAKAJE VILLAGE, KASARAGOD TALUK, P.O. ADYANADKA.** **21. SUGANDHI, W/O. CHANDRASHEKHARA NAYAK, RESIDING AT DODDATHOTTA HOUSE, P.O. DODDATHOTTA, SULLIA TALUK, KARNATAKA STATE.** **22. SADASHIVA SHANBHOGUE, S/O. ISHWARA SHANBHOGUE, RESIDING AT KUDLU VILLAGE, KASARAGOD TALUK,** - **P.O. RAMADAS NAGAR.** **23. JHANESHWARI SHANBHOGUE, OF DO-,** - **-DO-** **24. ANSOOYA SHANBHOGUE, OF -DO-,** - **IN -DO-** **25. GOPALAKRISHNA SHANBHOGUE, SO. -DO-, IN -DO-** **26. SHANKARANARAYANA SHANBHOGUE, S/O. -DOIN -DO-** **27. SARASWATHI SHANBHOGUE, D/O. -DO-** - **IN -DO-** **28. SUNANDA SHANBHOGUE, D/O. -DO-, IN -DO-** - **[THE DEATH OF RESPONDENTS 1 AND 5 IS RECORDED AS PER JUDGMENT DATED 04.10.2017 VIDE MEMO DATED 18.09.2017 IN SA.NO.580/1997]** - **# [RESPONDENT NO.4 IS RECORDED AS THE SUCCESSOR IN INTEREST OF THE DECEASED RESPONDENT NO.5 AS PER JUDGMENT DATED 04.10.2017 VIDE MEMO DATED 27.09.2017 IN SA.NO.580/1997]** 6 ## **[ SA.580/1997, SA.809/1997 ]** **BY ADVS. SMT.M.R.SREELATHA SRI.P.K.SURESH KUMAR SRI.K.SHRIHARI RAO SRI.P.B.KRISHNAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2017, ALONG WITH SA. 809/1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RKM** **[ SA.580/1997, SA.809/1997 ]** 7 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **SA.No. 809 of 1997 (D) -----------------------** **AGAINST THE ORDER/JUDGMENT IN AS 214 & 235 1996 of SUB COURT, KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN OS 109/1956 of PRL.MUNSIFF, KASARAGOD** **APPELLANTS IN S.A.- RESPONDENTS 1 TO 8 IN A.S.214/96 & APPELLANTS IN A.S.235 OF 1996 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL PETITIONERS IN I.A.:** **--------------------------------------** **1. SREE RAMA BHAT, S/O. T. SUBRAHMANYA BHAT, RESIDING AT THONDAMOOLE HOUSE,** - **MUGU VILLAGE, KASARAGOD TALUK,** **P.O. MUGU.** **2. ISHWARA BHAT, S/O. -DO-, IN -DO-** **3. VENKATESHWARI AMMA, W/O. -DO-, RESIDING AT KOLKAR HOUSE, MUGU VILLAGE, KASARAGOD TALUK, P.O. MUGU.** **4. T. SRIKRISHNA BHAT, S/O. -DO-,** **5. T. LEKSHMI DEVI, D/O. -DO-, RESIDING AT JELLY HOUSE, NARANGANA VILLAGE, PUTHUR TALUK, KARNATAKA STATE.** **6. T. SAVITHRI DEVI, D/O. -DO-, RESIDING AT SAJANKALA HOUSE, EDNAD VILLAGE,** **[ SA.580/1997, SA.809/1997 ]** 8 **KASARAGOD TALUK, P.O. EDNAD** **7. T. PARVATHI DEVI, D/O. -DO-, RESIDING AT KOLKAR HOUSE, MUGU VILLAGE, KASARAGOD TALUK, P.O. MUGU** **8. T. SREEDEVI, D/O. -DO-, RESIDING AT THONDAMOOLE HOUSE, MUGU VILLAGE, KASARAGOD TALUK** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN** **RESPONDENTS 1 TO 6 IN S.A.- APPELLANTS 1 TO 5 & 7 IN A.S.214/96. - RESPONDENTS 1 TO 5 & 7 IN A.S.235/96 IN THE LOWER APPELLATE COURT - SUPPLEMENTAL RESPONDENTS 47 TO 51 & 53 IN I.A.** **---------------------------------------------** **1. BALAKRISHNA NAYAK, S/O. RAMANNA NAYAK, RESIDING AT UPPINA PULITHADI MUGU VILLAGE,** **P.O. ARIPADY, VIA. PERDALA,** - **KASARAGOD - 671 551** **2. SADASHIVA NAYAK, S/O. -DO-, IN -DO-** **3. JANARDHANA NAYAK, S/O. -DO-, IN -DO-** **4. VITTAPPA NAYAK, S/O. -DO-, IN -DO-** **5. SURESH NAYAK, S/O. -DO-,** **6. RAMANNA NAYAK, S/O. VITTAPPA NAYAK,** - **RESIDING IN -DO-** **7. NARAYANA SHANBHOGUE, S/O. SADASHIVA SHANBHOGUE, RESIDING AT KUDLU VILLAGE, P.O.** **ARIPPADY, VIA. PARDALA, KASARAGOD - 671 551** **[ SA.580/1997, SA.809/1997 ]** 9 **8. MALINGA NAIK, S/O. RAMA NAIK, RESIDING AT CHENNEGULI IN MUGU VILLAGE, P.O. ARIPPADY, VIA. PERDALA, KASARAGOD - 671 551** **9. VISHNU SHANBHOGUE, S/O. KESHAVA SHANBHOGUE, RESIDING AT PADY VILLAGE, KASARAGOD TALUK,** **P.O. PADI** **10. SHILAVATHI AMMA, W/O. SUBRAYA SHANBHOGUE, IN -DO-** **11. KAMALAMMA, W/O. KESHAVA SHANBHOGUE, IN -DO-** **12. BHUVANESHWARI AMMA, W/O. VENKATESH SHANBHOGUE, RESIDING AT KUDLU VILLAGE, KASARAGOD TALUK,** **P.O. RAMDAS NAGAR** **13. KRISHNA SHANBHOGUE, S/O. -DOIN -DO-** **14. GEETHA, D/O. -DOIN -DO-** **15. GOPI, S/O. -DO-, IN -DO-** **16. SHAMBA, D/O. -DO-, IN -DO-** **17. VRINDA, D/O. -DO-, IN -DO18. YAMUNA, W/O. JANARDHANA NAYAK, RESIDING AT BAKILAPADAVU, DARKESTU HOUSE, P.O. ADYANADKA, ENMAKAJE VILLAGE, KASARAGOD TALUK** **19. GIRIJA, W/O. BALAKRISHNA NAYAK, RESIDING AT BEEBI MAJALU HOUSE, GOLITHOTTU VILLAGE, PUTHUR TALUK, P.O. GOLITHATTU, KARNATAKA STATE** **[ SA.580/1997, SA.809/1997 ]** 10 **20. CHANDRAVATHI, W/O. SEETHARAMA NAYAK, RESIDING AT AJERU HOUSE, PUNACHA VILLAGE, PUTHUR TALUK, P.O. PUNACHA, KARNATAKA STATE** **21. LINGANNA NAYAK, S/O. KRISHNAPPA NAYAK, RESIDING AT BEEBI MAJELU HOUSE, GOLITHATTU VILLAGE AND POST, PUTHUR TALUK, KARNATAKA STATE.** **22. KAMALA, W/O. CHANDRASHEKARA NAYAK, RESIDING AT BUKILA PADAVU HOUSE, ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O. ADYANADKA** **23. SUGANDHI, W/O. CHANDRASHEKARA NAYAK, RESIDING AT DODDATHOTTA HOUSE, P.O. DODDATHOTTA, SULLIA TALUK, KARNATAKA STATE** **24. SADASHIVA SHANBHOGUE, S/O. ISHWARA SHANBHOGUE, RESIDING AT KUDLU VILLAGE, KASARAGOD TALUK, P.O. RAMDAS NAGAR.** **25. JHANESHWARI SHANBHOGUE, D/O. -DO-, IN -DO-** **26. ANASOOYA SHANBHOGUE, D/O. -DO-, IN -DO-** **27. GOPALAKRISHNA SHANBHOGUE, S/O. -DO-, IN -DO-** **28. SHANKARANARAYANA SHANBHOGUE, S/O. -DO-, IN -DO-** **29. SARASWATHI SHANBHOGUE, D/O. IN -DOIN -DO-** **30. SUNANDA SHANBHOGUE, D/O. -DO-, IN -DO31. GOVINDA NAYAK, S/O. DEVAMMA, RESIDING AT KODIGAL BAIL HOUSE, P.O. SULLIA, SULLIA TALUK, KARNATAKA STATE.** **[ SA.580/1997, SA.809/1997 ]** 11 **32. SARASWATHI, D/O. DEVAMMA AND W/O. RAMAKRISHNA PRABHU, RESIDING AT KALPADA HOUSE, KUNIYOOR P.O., KUNIYOOR, PUTHUR TALUK** **33. KAMALA, D/O. DEVAMMA AND W/O. SRINIVASA NAYAK, KARE HOUSE, MAIRE VILLAGE, KASARAGOD TALUK,** - **P.O. MAIRE.** **34. NAGAMMA, D/O. DEVAMMA & W/O. MADHAVA NAYAK, RESIDING AT JAYANAGAR, SULLIA P.O., KARNATAKA STATE** **35. GIRIJAMMA, D/O. -DO- & W/O. PURUTHOTHAMMA, RESIDING AT PUNHALLU HOUSE, P.O. ADYANADKA, KARNATAKA STATE** **36. SHANTHAMMA, D/O. -DO- & W/O. GOVINDA NAYAK, RESIDING AT KODIGAL BAIL HOUSE, SULLIA P.O., SULLIA, KARNATAKA STATE** **BY ADVS. SRI.K.SHRIHARI RAO SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER SRI.P.B.KRISHNAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 0410-2017 ALONG WITH S.A.NO.580/1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RKM** **[ SA.580/1997, SA.809/1997 ]** 12 ## **JUDGMENT** ## **[ SA.580/1997, SA.809/1997 ]** ## **Dated this the 4th day of October 2017** Supplemental petitioners 2 to 9 in I.A. No.764 of 1973 in O.S. No.106 of 1956 are the appellants in S.A. No.580 of 1997, while petitioners in I.A. No.2233 of 1965 in O.S. No.109 of 1950 on the file of the Munsiff Court, Kasargod are the appellants in S.A. No. 809 of 1997. O.S. No.106 of 1956 was filed by one T. Subramanya Bhatta, the predecessor in interest of the appellants herein, for redemption of the mortgage of the year 1912 and partition of the property. 2. It is alleged in the suit that plaint A schedule properties were allotted to one Krishnappan Naik in Partition Deed entered into between the members of his Upppine family on 05.06.1901 and Krishnappan Naik and his three sons, namely Naranappa, Kunjappa and Ishwara mortgaged the properties by giving possession of the property to the first defendant and his deceased brother Sadasiva Shanbhongue for Rs.2,800/- on 10.04.1912 for a period of 50 years. 3. Defendants 2 to 6 are the sons and legal representatives of the mortgagee Sadasiva Shambhongue, who is no **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** more. The mortgagor died and his three sons above mentioned are entitled to 1/3[rd] share each in equity of redemption. On 07.04.1949, Krishnappan Naik and his sons sold their 1/3[rd] right to Narayana Bhatta and on 09.04.1949, the children of Ishwara Naik released their 1/3[rd] right also in favour of said Narayana Bhatta under an Exchange Deed dated 05.03.1953 between the plaintiff and Narayana Bhatta. The rights of the later in the suit properties were transferred to the former. So, the plaintiff is entitled to redemption and partition on the properties and delivery of his 2/3[rd] right, on payment of 2/3[rd] share in the mortgage amount to defendants 1 to 6. All the properties of the mortgagees' family had been mortgaged to the predecessor in interest of the defendants 1 to 6 for an amount of Rs.4700/- under a possessory mortgage dated 19.08.1897 for the period of 30 years. One item of consideration was the discharge of Rs.1200 to one Ammunji Bhanka under the prior mortgage. The mortgagees have failed to discharge this debt to the said Ammunji Bhanka and the mortgage for Rs.4700/- is not supported by consideration to the extent of Rs.1200/-. The properties of the mortgagees were divided into four shares as per the partition deed of 05.06.1901, reserving to each sharer the liability to the discharge of ¼ mortgage amount. In 1912 mortgagors executed four different mortgage deeds, of which the suit mortgage is one. So, the plaintiff **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** filed a suit for redemption of mortgage and also partition and allotment of their 2/3[rd] share in the plaint scheduled properties. 4. Defendants 1 to 6 contended that this is not available and they are entitled for fixity of tenure and also prayed for dismissal of the suit. 5. O.S. No.109 of 1965 was filed by the same plaintiff for redemption of mortgage covered by Ext.A8 mortgage in that suit. There also the defendants contended that the properties are not available for redemption and they are entitled to get fixity of tenure. They prayed for dismissal of the suit. 6. Both the suits were tried jointly and by judgment dated 29.07.1965, the Munsiff, Kasargod decreed O.S. No.106 of 1956 granting a decree for redemption of properties found to be included under Issue No.2 to 4 on deposit of the amount found payable under Issue No.10 and also for partition of the said properties into three equal shares out of which plaintiff is entitled to get 2/3[rd] share. Preliminary decree for partition was passed accordingly. O.S. No.109 of 1956 was also decreed and preliminary decree for redemption was granted in respect of the properties mentioned therein with a direction to deposit the amount found under Issue No.10 and the amount was directed to be deposited within three months in both the suits. The trial court found that amount to be **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** deposited in O.S. No.109 of 1956 is quantified as Rs.2500/- alone and in O.S. No.106 of 1956, the amount was quantified as Rs.2800/-and Rs.1000/- covered by Ext.B4 mortgage and also together with 6% interest and Rs. 300/- as per Ext. B6. 7. This was challenged by the contesting defendants by filing A.S. No.136 of 1965 in O.S. No.109 of 1956 and A.S. No.40 of 1965 in O.S. No.106 of 1956 and plaintiff in O.S. No.109 of 1956 filed cross objection in A.S. No.139 of 1965 to the extent which is against the plaintiffs. The appellants also filed R.I.A. No.663 of 1968 in A.S. No.139 of 1965 for reception of additional documents in the appeal and by common judgment dated 12.07.1968, the Sub Judge, Kasargod dismissed the appeals as well as the cross objection and also application filed for reception of additional documents. Dissatisfied with the same defendants 8 and 9 in O.S. No.109 of 1956 of Munsiff Court, Kasargod filed S.A. No.933 of 1968 and same defendants in O.S. No.106 of 1956 filed S.A. No.934 of 1968 before this Court and this Court by common judgment dated 06.06.1972 dismissed the appeals confirming the decree and judgment passed by the trial court as well as the appellate court. But an observation has been made that the decisions however will not preclude the appellants from claiming the benefits, if any, available to them under any later tenancy legislations. Thereafter, defendants 5 to 6 in O.S. **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** No.109 of 1956 of Munsiff Court, Kasargod who were respondents 3 to 5 in S.A. No.933 of 1968 filed CMP No.11314 of 1981 for amendment of the decree passed in the 2[nd] appeal to incorporate certain amounts which has not been added and this Court by Order dated 29.07.1986 dismissed the application stating that there is no error in the amount payable and confirmed the amount payable as per the preliminary decree passed by the trial court. The tenancy right claimed by the contesting respondents as available as per the law then stood was rejected by this Court as per Order in CRP No.1193 of 1973 where certain clarification has issued as follows :- “During the hearing of those appeals there was a prayer by the appellant therein that their future rights may not be affected. I mentioned in the judgment dated 6[th] June, 1972 that the decision rendered by me will not preclude the appellants from claiming the benefits, if any, available to them under any later tenancy legislations. As correctly found by the lower appellant court, in this case, subsequent to my decision to those appeals, no legislation has been made conferring any new right on the 'A' party. I think their right had been adjudicated in a fairly contested litigation which extended for 18 years. I confirm the order of the appellate authority and dismiss this revision”. 8. Thereafter the plaintiffs filed I.A. No.764 of 1973 in O.S. No.106 of 1956 for passing final decree and also plaintiff in O.S. No.109 of 1956 filed I.A. No.2233 of 1965 for passing final decree. The trial court by common judgment dated 14.06.1965 allowed both ## **[ SA.580/1997, SA.809/1997 ]** 17 the applications and passed a consolidated final decree for redemption in O.S. No.106 of 1956 and 109 of 1956 as follows :- A. “That the mortgage amount deposited by the plaintiff in both the suits are entitled to realise by the mortgagee; B. That the decree schedule properties in O.S. No.106 of 1956 are divided into three equal shares and that the property described in C3 index as the 2/3[rd] share allotted to the plaintiff's share? C. That the respondents are directed to put the plaintiff in possession of said 2/3[rd] share allotted to the plaintiff by the Commissioner as shown in the C2 plan and C3 index? D. That the suit property described in the decree schedule of O.S. No.109 of 1956 which is otherwise demarcated and shown in the C3 index and C2 plan by the Commissioner shall be delivered to the decree holder. E. That the respondents are directed to deliver all the documents in their possession or power relating to the mortgage property free from mortgage and from all encumbrances created by the respondents or any person claiming under them; F. That the plaintiff is entitled to mesne profits from the date of deposit of mortgage amount that is from 01.03.1956 at the rate of Rs.3,717/- per annum till the date of surrender of possession as the 2/3[rd] share of mesne profit in O.S. No.106/56 and also entitled to realise Rs.2,598 as the mesne profit in O.S. No.109/1956 from the respondents per annum till the date of surrender of possession; G. That the parties are directed to bear their respective costs; H. That C1 to C3 forms part of the decree”. 9. Against this plaintiffs filed A.S. No.207 of 1996 against I.A. No.764 of 1973 O.S. No.106 of 1956 and respondents 46 to 49 in the final decree proceedings filed A.S. No.213 of 1996 against that **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** judgment and petitioners in I.A.. No.2233 of 1965 in O.S. No.109 of 1956 filed A.S. No.235 of 1996 while respondents 46, 47 to 53 in that final decree proceedings filed A.S. No.214 of 1996 and the Sub Judge, Kasargod by a common judgment allowed A.S. No.213 of 1996 and 214 of 1996 and set aside the final decree passed in O.S. No.106 of 1956 and 109 of 1956 on the ground that the deposit in O.S. No.109 of 1956 was out of time and contesting defendants are entitled to get the benefit under Section 4A of the Kerala Land Reforms Act, and as such the final decree could not have been passed and dismissed the final decree application and also dismissed A.S. No.207 of 1996 and 235 of 1996 filed by the final decree petitioners to the extent which is against their contentions in the final decree. Dissatisfied with the same, the final decree petitioners have filed the above 2 second appeals. 10. While admitting the appeal in S.A. No.580 of 1997, this Court has accepted the substantial questions of law raised in the appeal memorandum which reads as follows :- (A). Whether the lower appellate court was correct in law in holding that the mortgage has become irredeemable? (B). Whether on the facts and circumstances of the case respondents 1 to 4 herein are deemed tenants entitled to the benefits of Section 4A of the Kerala Land Reforms Act? (C). Is not the plea under Section 4A of the Kerala Land Reforms Act barred by res judicata? **[ SA.580/1997, SA.809/1997 ]** 19 (D). Has not the lower appellate court committed an error of law in misconstruing the nature and scope of the observations of this Court in S.A. No.934 of 1968 relating to the availability of benefits under the Kerala Land Reforms Act? (E). Is not the existence of a mortgagor-mortgagee relationship on 01.01.1970 a pre-requisite for raising a claim of benefit of Section 4A of the Kerala Land Reforms Act? (F). Did not the mortgagor-mortgagee relationship snap on deposit of the mortgage money on 01.03.1966 and if so is mere possession thereafter sufficient for sustaining a plea for benefits under Section 4A of the Act? (G). Whether a redeeming co-mortgagor can claim to be a mortgagee for the purposes of Section 4A of the Kerala Land Reforms Act? (H). Whether on the facts and circumstances of the case, the lower appellate court was correct in law in holding that the deposit of mortgage money is out of time? (I). Has not the lower appellate court acted illegally and with material irregularity in ignoring the principle of merger of the trial court decree with the decrees of the appellate courts while deciding whether the deposit is in time? (J). Does not the period of limitation for the deposit of mortgage money run only from the date of final disposal of the proceedings and are not the appellants, in any event, entitled to exclusion of time under the Limitation Act, on account of the order of stay passed by the appellate courts while calculating the time frame for deposit of mortgage money? (K). Whether the lower appellate court was correct in law in finding that the appellants herein had not complied with Order 34 Rule 7 of the Code of Civil Procedure? (L). Is not the finding of the lower appellate court that the final decree application is not maintainable, illegal and perverse? (M). Whether the quantum of mesne profits granted by th trial court is sustainable in law? (N). Whether the judgment and decree of the lower **[ SA.580/1997, SA.809/1997 ]** 20 appellate court are sustainable in law? 11. While admitting SA No.809 of 1997, this Court has accepted the substantial questions of law raised in the appeal memorandum, it reads as follows :- (A). Whether the lower appellate court was correct in law in holding that the mortgage has become irredeemable? (B). Whether on the facts and circumstances of the case respondents 1 to 6 herein are deemed tenants entitled to the benefits of Section 4A of the Kerala Land Reforms Act? (C). Is not the plea under Section 4A of the Kerala Land Reforms Act barred by res judicata? (D). Has not the lower appellate court committed an error of law in misconstruing the nature and scope of the observations of this Court in S.A. No.933 of 1968 relating to the availability of benefits under the Kerala Land Reforms Act? (E). Is not the existence of a mortgagor-mortgagee relationship on 01.01.1970 a pre-requisite for raising a claim of benefit of Section 4A of the Kerala Land Reforms Act? (F). Did not the mortgagor-mortgagee relationship snap on deposit of the mortgage money on 04.09.1965 and if so is mere possession thereafter sufficient for sustaining a plea for benefits under Section 4A of the Act? (G). Whether on the facts and circumstances of the case the lower appellate court was correct in law in holding that the deposit of mortgage money was not valid and proper? (H). Is not the finding of the court that only Rs.2500/- was deposited illegal, improper, perverse based on no material and without reference to the original records? (I). Has not the lower appellate court committed an error of law in entertaining a plea that there was no proper and valid deposit when the admission of respondents 1 to 6 in this regard is recorded in the judgment of the trial court? (J). In any event, is not the deposit of mortgage money alone **[ SA.580/1997, SA.809/1997 ]** 21 sufficient and was not the lower appellate court in error in thinking that the non-deposit of costs is fatal to the final decree application? (K). Whether the lower appellate court was correct in law in finding that the appellants herein had not complied with Order 34 Rule 7 of th Code of Civil Procedure? (L). Is not the finding of the lower appellate court that the final decree application is not maintainable, illegal and perverse? (M). Whether the quantum of mesne profits granted by the trial court is sustainable in law? (N). Whether the judgment and decree of the lower appellate court are sustainable in law? 12. During the pendancy of the appeal, the counsel for the respondents 1 and 5 filed a memo stating that respondents 1 and 5 are no more in S.A. No.580 of 1997 and 7[th] respondent is no more in S.A. No.809 of 1997. Counsel for the appellants filed a memo in S.A. 809 of 1997 stating that respondent No.7 and his family members have assigned their right in the properties to Balakrishna Naik, who is the first respondent herein and as such, there is no necessity to implead the legal representatives of 7[th] respondent and this was not objected by the counsel for the contesting respondents. So the memo is recorded and the first respondent herein has recorded as the legal representatives of 7[th] respondent as the assignee of the right of the 7[th] respondent in S.A. No.809 of 1997. In S.A. No.580 of 1997 also, the appellants filed a memo stating that the right of 5[th] respondent has been assigned in favour of 4[th] **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** respondent Balakrishna Naik and there is no necessity to implead the legal representatives of 4[th] respondent. So the above memo is recorded and 4[th] respondent has been recorded as successor in interest of deceased 5[th] respondent as his assignee. Counsel for the appellant submitted that he has also filed another memo stating that the deceased first respondent has sold his right in favour of his brother, 2[nd] respondent and Balakrishna Naik, 4[th] respondent by registered document and there is no necessity to implead the legal representatives of first respondent. The above submission is also recorded and respondents 2 and 4 are recorded as legal the representatives of the deceased first respondent as his assignee and there is no need to implead legal representatives of deceased first respondent as he has no subsisting right over the property. 13. The counsel for the appellants in both the cases argued that as regards the finding of limitation in O.S. No.106 of 1956 is concerned, the preliminary decree was passed on 27.09.1965 and the amount was deposited on 01.03.1966 and the final decree application was filed in 09.04.1973. The appeal was filed against the preliminary decree during 1965 itself and there was a stay and the stay was was vacated only later. So the amount deposited is in time. The finding of the first appellate court that the amount was deposited out of time is not correct. He had relied **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** on the decision reported in **Achaldas Durgaji Oswal (Dead) through L.Rs. v. Ramvilas Gangabisan Heda (Dead) through L.Rs. And others [AIR 2003 SC 1017]** and also **LK Trust v. EDC Ltd and others (2011 (6) SCC 780)** for the proposition that the amount deposited prior to the sale of mortgaged property in respect of usufructuary mortgage will be sufficient deposit as provided under Order 34 Rule 7 of the Code of Civil Procedure (for short, “the Code”) and the time limit fixed therein is not the ultimate time for depositing the amount and deposit made beyond that time cannot be said to be deposited out of time. He had also argued that since the amount was deposited prior to coming into force of the Act 1 of 1970 whereby Section 4A has been introduced, there is no mortgagor/ mortgagee right subsist which is a pre-requisite for claiming right under Section 4A of the Act and as such the lower appellate court was not justified in granting the relief. He had relied on the decision reported in **Parameswaran Govindan v. Krishnan Bhaskaran [1992 (1) KLT 577] and Ahamed v. Kuthiravattom Estate Receiver [1996 (2) KLT 810] and Varghese Samuel v. Verkey Abraham and Others [1978 KLT 372]** in support of his case. 14. On the other hand, the counsel for the contesting respondents in both the appeals argued that the amount was deposited beyond the time provided under Order 34 Rule 7 and also **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** time fixed by the court. So the lower appellate court was perfectly justified in coming to the conclusion that the amount was deposited out of time. He had also argued that the amount deposited in O.S.109 of 1956 is not correct. As per the findings in the preliminary decree, the amount due under the prior mortgage also will be deposited, which has not been done. So the lower appellate court was perfectly justified in coming to the conclusion that the amount deposited is not correct. He had also argued that Section 4A has been come into force after the preliminary decree for redemption has been passed and there was an observation in the judgment of this court that it will not affect the right of the contesting defendants to claim the benefit of any tenancy legislation which may approve after the passing of the decree. So, under the said circumstances, the lower appellate court was perfectly justified in providing the benefit of section 4A which was not available to the contesting respondents at the time when the preliminary decree for redemption was passed. So, according to the learned counsel, the first appellate court was perfectly justified in dismissing the applications for final decree holding that the final decree application filed in I.A. in O.S. 109 of 1956 was out of time and the mortgaged property is not available as the contesting respondents are entitled to get fixity of tenure under Section 4A of the Kerala Land Reforms **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** Act. He had also argued that the appellate court also found that there are some discrepancies regarding the allotment of properties and the trial court has not considered the availability of the properties for partition and also redemption and without considering those aspects,allotted the properties which is in contravention with the preliminary decree passed. So on that ground also, the decree of the first appellate court was perfectly justified. 15. It is not in dispute that a preliminary decree for partition and redemption was passed in O.S. No.106 of 1956 and decree for redemption was passed in O.S. No.109 of 1956 by a common judgment and that was confirmed by this Court in S.A. No.933 of 1968 and 934 of 1968. It is also not in dispute that the appellants herein have deposited the amount ordered to be deposited in O.S. No.109 of 1956 on 01.03.1966 and in O.S. No.106 of 1956 on 04.09.1965. There is also no dispute regarding the fact that the amount deposited in O.S. No.109 of 1956 was in time. But there was only dispute regarding the amount deposited amount deposited in O.S. No.109 of 1956. It may be mentioned here that as per the preliminary decree, the amount directed to be deposited in O.S. No.109 of 1956 is only Rs.2500/- and this was confirmed in the appeal and also in the second appeal also. Further, an attempt was made by some of the respondents to correct the amount to be **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** deposited by filing CMP No.11314 of 1981 in S.A. No.933 of 1968 and this Court by Order dated 29.07.1986 dismissed that application stating that the discrepancy in amount has not been raised in the 2[nd] appeal and filing of the application after lapse of 13 years is mischievous and there is no merit in the application and the same has been dismissed. So, it is clear from this that the amount directed to be deposited as quantified by the trial curt as Rs.2500/- has been confirmed by this Court. An attempt made by the parties to amend the amount by filing an application in CMP No.11314 of 1981 in S.A. No. 933 of 1968 was also dismissed by this Court. This aspect has not been considered by the first appellate court before coming to the conclusion that the amount deposited is not in tune with the preliminary decree. So to that extent the observation made by the first appellate court that amount the deposited is not correct is not in correct, is liable to be set aside and that does not arise for consideration by the first appellate court especially when the claim made in that respect has been rejected by this Court as per order in CMP No.11314 of 1981 of in O.S. No.933 of 1968 dated 29.07.1986. 16. As regards the limitation aspect is concerned, the first appellate court has relied on the decision reported in **Mohammed Abdul Khader vs. Kunju Sayed [1997 (1) KLT 53 (SC)]** wherein two Judges of the apex court have held that in a suit for redemption **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** of usufructuary mortgage when a preliminary decree failed to mention the amount payable the time within which the amount has been paid then the amount has to be paid within six months as provided under Order 34 Rule 7 unless extended by the court. It is on that ground the lower appellate court came to the conclusion that it was not deposited within six months and no application for extension of time has been filed. So the amount deposited on 01.03.1966 is out of time and on that ground the application for final decree is not maintainable. This aspect has been considered by a three Judge Bench of the apex court in **Achaldas Durgaji's case (supra)** where it has been held that the period for deposit under usufructuray mortgage is covered by Article 137 of the Limitation Act and not Order 34 Rule 7. ## 17. In Para 36, it has been observed that “36. we are, therefore, of the opinion that although by reason of preliminary decree in the suit for redemption of usufructuary mortgage, the Court may fix time for payment of the amount declared due but default in depositing such payment would not debar him from a right to redeem the mortgaged property”. 18. The dictum laid down in the decision reported in **Mohammed Abdul Khader's case (supra)** has been found to be not good in law. **[ SA.580/1997, SA.809/1997 ]** 28 In Paragraph 43, 44 which reads as follows : 43. In the said case, the contentions raised herein had not been raised obviously because no such question arose for consideration and any passing observation made therein without any argument and without any precedent cannot be treated to be a declaration of law in terms of Art. 141 of the Constitution of India. 44. Any observations made therein contrary to what we have held above cannot be said to be good law and is hereby overruled. 19. So, it is clear from the above dictum that as in the case of usufructuary mortgage there is no time limit for depositing the amount till the mortgaged property is sold and th sale is confirmed and the party is entitled to redeem the property and the time limit provided under Order 34 Rule 7 should not be a bar for depositing the amount beyond the period mentioned therein. Further in the decision reported in **LK Trust's case cited (supra)** also, it was held that mortgage being a security for debt, the right of redemption continues even if the mortgagor fails to pay the debt by due time. Mortgagor's right of redemption stands extinguished only on execution of the conveyance of the mortgage property by a registered document or by a decree of court. It is clear from the above dictum that in the case of usufructuary mortgage, the **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** mortgagor's right to redeem the property continues till the mortgage property is sold in auction and the sale is confirmed by the court. So under the said circumstances the finding of the lower appellate court that the amount deposited was out of time is without any merit and the same is liable to set aside and I hold that the amount is deposited in time and the the final decree application is perfectly maintainable. 20. As regards other contentions regarding the claim of Section 4A is concerned, the mortgagor/ mortgagee relationship must be subsisting between the parties as on the date on which the amendment has come into effect namely 01.01.1970. This aspect has been considered by this Court in **Varghese Samuel's case (supra)** where it has been held that Section 4A gives protection to the mortgagee with possession of certain lands by treating him as deemed tenants from 01.01.1970. Till that date, jural relationship between the mortgagor and mortgagee as per the Transfer of Property Act and the contract remain unaltered. A tenancy is superimposed on mortgagee from that date. The jural relationship between the mortgagor and mortgagee implied in expression, “mortgagee with possession” in the Section must subsist on the date, S.4A came into force, namely 01.01.1970 to claim the benefit. If the relationship had come to an end earlier, as a consequence of the **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** decree or the execution steps, the defendants cannot claim to be mortgagees with possession as on 01.01.1970. In the case of a usufructuary mortgage with the payment of the mortgage money by the mortgagor, the mortgage comes to an end and that cannot be said to exist thereafter though the mortgagee has to perform certain acts contemplated under Section 60 of the Transfer of Property Act. That means, in this case, the defendants were not mortgagees with possession on the relevant date. So, even though the mortgage transaction is of the year 1088 and the defendants were in continuous possession for a period of 50 years immediately preceding 01.01.1970, since they ceased to be mortgagee before 01.01.1970, they are not entitled to the benefit under Section 4A to claim a deemed tenancy. 21. The same view has been reiterated in the decision reported in **Ahamed's case (supra)** wherein it has been held that once the mortgage amount is deposited, the relationship between the parties ceases. Once that is ceased, the benefit under Section 4A is not applicable in such cases. The same view has been reiterated in the decision reported in **Parameswaran Govindan's** **case (supra)** . So, in view of the dictum laid down in the above decisions, the benefit of deemed tenants is not available to the contesting defendants as the mortgage amount as directed by the **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** preliminary decree was deposited prior to 01.01.1970 when Section 4A came into force. This aspect has not been considered by the 1[st] appellate court before coming to the conclusion that the contesting respondents are entitled to get the benefit under Section 4A and holding that the mortgage property is not available for redemption as the right of the redemption has been extinguished by virtue of the subsequent tenancy legislation conferring right on the mortgagee in possession under Section 4A of the Act. So, the finding of the lower appellate that the contesting respondents are entitled to get benefit under Section 4A of the Kerala Land Reforms Act is also not sustainable in law and the same is set aside. 22. The appellate court in Para 13 of the judgment observed as follows :- “13. The learned counsel for the appellant has given me a schedule showing the “mistakes and irregularities” in the allotment accepted by the court. The learned counsel for the decree holders has also conceded that there are certain mistakes and defects in the commission plan and report and the court below without going into those aspects has passed the final decree. The available properties as per preliminary decree are not the properties now allotted to the respective parties. The plot partitioned as per Ext.C2 in the final decree takes more property than the plot covered by Ext.C1 in the preliminary decree. In R.S. No.163/3 the property available is only 6 **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** cents. But the commissioner has divided 12 cents which the court below has accepted. Item 1, 4, 5 and 7 are not available as per the preliminary decree. But those are included in the final decree. Items 2 and 3 are to be divided among the persons entitled for kumki. But the kumki land of the defendants were allotted to the plaintiff. The above are only some defects in the commission plan and report and the most intriguing factor is that the court below has not taken any care to look into this aspects and simply passed the final decree”. 23. The appellate court did not go into the question regarding irregularity in the allotment on the ground that since it is found that the final decree application is not maintainable, the first appellate did not consider that aspect and did not arrive at any concrete finding on that aspect. It may be mentioned here that it is based on certain schedules given by the counsel for the appellants in the court below. Further it is seen from the records that such an objection has not been raised in the trial court and the main objection raised was regarding the non-ascertainment of the mesne profits in the right prospective. No evidence was adduced before the trial court regarding the objections raised as well. Except making some passing observations regarding irregularities in the commissioner's report, the lower appellate court did not make any concrete finding regarding the irregularities committed by the **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** Commissioner in making the allotment against the term of the preliminary decree. So under the said circumstances, mere observation made by the first appellate court on the basis of the schedule submitted by the counsel for the appellant in the lower court alone is not sufficient to come into the conclusion that the trial court has not considered objection in the right prospective before accepting Ext.C2 plan for passing the final decree. So under the said circumstances, this Court feels that there is no necessity to remand the case either to the first appellate court or to the trial court to find out the properties available for partition. As regards the kumki lands are concerned, the kumki lands were ascertained by the Commissioner and shown in Ext. C2 plan in purple colour and it was not alloted to any person specifically. Only green portion and yellow portion were the properties identified as the properties allotted to the shares of the parties in the partition. Kumki lands were identified and that were shown along with the properties which has been allotted. That does not mean that the entire kumki land which is in enjoyment of the property belonging to the defendant has been allotted to the plaintiff as claimed by the counsel for the respondents. So under the said circumstances, I do not find any reason to set aside the Commissioner's report or to remit the case for that purpose. The lower appellate court merely relying on **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** certain particulars furnished by the counsel for the appellant as the schedule of property has reiterated the same without examining as to whether they are correct or not. So under the said circumstances, there is no necessity to interfere with the final decree passed by the trial court. So appeal will have to be allowed and the decree and judgment passed by the first appellate court dismissing the final decree application are to be set aside and the final decree passed by the trial has to be restored. If there is any discrepancy in the allotment and if it is found that on identification in execution, any excess land has been provided than what is provided in the preliminary decree, then the execution court is at liberty to go into the question and identify the property to be delivered in tune with the preliminary decree passed by the first appellate court. So, the appeals are allowed. Decree and judgment passed by the first appellate court dismissing the final decree application are set aside and the final decree passed by the trial court is restored. Considering the circumstances of the case, while delivering the property, if the execution court found that any excess property has been found to be allotted more than what is mentioned in the preliminary decree that can be identified and excluded and the property mentioned in the preliminary decree alone need be delivered to the parties entitled to that share as per the final decree **[ SA.580/1997, SA.809/1997 ]** **==> picture [13 x 7] intentionally omitted <==** passed. With the above observation, the final decree passed by the trial court is restored. The parties are directed to bear the respective costs in the appeal. Sd/- **K.RAMAKRISHNAN JUDGE** ## **RKM**