IMPORTANT POINT
Once the amount is deposited by the mortgagor decree-holder even during the execution proceedings the relationship between the parties as mortgagor and mortgagee ceases and thereafter till actual delivery of possession the erstwhile mortgagee in possession remains merely as judgment debtor in illegal possession.

Headnote:(i) MORTGAGE-Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969-Section 4A-Benefit of-Status of deemed tenancy on mortgagees in possession-Claim of-Appellants were mortgagees in possession through their predecessor-in-interest since 1896-Decree for redemption of suit mortgage against them had become final-During execution proceedings Section 4A had come into force-Decree holder mortgagor deposited mortgage amount in 1969-Order of delivery of property-Appellants mortgagees continuing in possession only as judgment debtors-Illegal possession-Conditions of Section 4A not complied with-Words 50 years immediately preceding commencement of Amendment Act of 1969 .
       Held : In view of this settled legal position, therefore, it must be held that the appellant s status as mortgagees in possession came to an end on 14th March 1969 when the mortgage money was deposited by the respondent decree-holder in execution proceedings. Thereafter appellants possession became unlawful and they were liable to be forthwith evicted in execution of the decree for redemption which had become final. Consequently, it must be held that the very first condition for applicability of Section 4A of the Act was not satisfied by the appellants. To recapitulate the first condition for applicability of Section 4A is that the concerned person who seeks the benefit of Section 4A for getting status of deemed tenant must be in possession of the concerned land as a mortgagee on 1.1.1970 when Section 4A came into force. Almost 9 months prior to 1.1.1970 the appellants had ceased to be mortgagees in possession and were only in unlawful possession of the decretal land. Thus the very first condition for applicability of Section 4A was not fulfilled by the appellants. Once this first condition was not satisfied, Section 4A went out of picture for the appellants. Even though the mortgagee in possession may be holding the possession of the land as mortgagee on 1.1.1970 he must further show that he had remained as a mortgagee in possession by himself or through his predecessor in interest continuously at least from 31st December 1919 till 31st December 1969 without any break. On the facts of the present case it cannot be disputed and it is not in dispute that the appellants were not in possession as mortgagees in possession for this whole period but their status as mortgagees in possession had come to an end and the relationship of mortgagor and mortgagee had got snapped between the parties from 14th March 1969 onwards. Thus for a period of almost 9 months prior to 1.1.1970 the appellants were not in possession as mortgagees. On the contrary from 14th March 1969 onwards their possession of the suit land was unlawful. Thus even the second condition is not satisfied for applicability of Section 4A. (Para 4)
       (ii) INTERPRETATION OF STATUTES -Rule of construction of provisions creating legal fictions- Express words of Section have to be given their full meaning-Fiction is not to be extended beyond the purpose for which it is created-Words immediately preceding the commencement in Section 4A of Kerala Land Reforms Act.
       Held : Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction. (Para 5)
       In the present cases fiction created by Section 4A is circumscribed by its express words. Before such a deemed tenancy can arise it must be shown by the concerned beneficiary of the said provision that he was a mortgagee in possession for a continuous period of not less than fifty years immediately preceding the commencement of the said Section. The words immediately preceding the commencement must necessarily be given their ordinary and full meaning. They necessarily point out the legislative intent that the fiction is created only for covering such type of cases where the mortgagee in possession not only exists on the land as mortgagee on 1.1.1970 but also continuously existed as such for a period backward stretching upto at least 50 years in past from 31.12.1969 which was the day immediately preceding such commencement. (Para 5)
       However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4A such fiction can arise only when the express language of the Section laying down the conditions precedent for raising of such a fiction is complied with by the concerned mortgagee in possession seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the Court on analogy or by addition or deleting words not contemplated by the legislature. (Para 5)

JUDGMENT

S.B. Majmudar, J.-Both these appeals by special leave challenge judgment of the High Court of Kerala at Ernakulam rendered in two Revision Applications moved by two different sets of defendants/judgment-debtors who were parties to Original Civil Suit No. 22 of 1946 of the Sub-Court, Manjeri and who were sought to be evicted from the suit property by the decree-holder in one and the same Execution Petition No. 543 of 1962. Two separate Revision Applications came to be filed in the High Court raising identical contentions by these two sets of contesting defendants because they had lost in two separate appeals filled by them against the Executing Court s order before the Sub-Court at Manjeri. In both these revision applications the appellants raised identical contentions which were repelled by the High Court and that it how they are before this Court in these two appeals. As identical question arises for our consideration the appeals were heard together and are being disposed of by this common judgment.

2. A short point arises for our consideration in these appeals. The appellants contend that they are entitled to the benefit of Section 4A of the Kerala Land Reforms Act, Act I of 1964 as amended by Act 35 of 1969 (hereinafter referred to as the Act ). The said provision seeks to confer the status of deemed tenancy on mortgagees in possession under circumstances mentioned in the said Section. The appellants who were erstwhile mortgages in possession of the suit land contend that despite the decree for redemption passed by the Civil Court had become final against them, even during execution proceedings they are entitled to get the benefit of Section 4A of the Act. Therefore, their possession should not be disturbed. The Executing Court as well as the Appellate Court and also the Revisional Court have negatived this common contention.

3. In order to appreciate the grievance of the appellants/judgment-debtors centering round the aforesaid provision a few relevant facts may be noted at the outset.

The suit land was mortgaged by predecessor-in-interest of the respondent decree-holder with the predecessor-in-interest of the appellants. The predecessor-in-interest of the respondent filed Original Suit No. 212 of 1946 in the Munsif s Court at Manjeri for redemption of the suit usufructuary mortgage in favour of the appellants and other defendants. In all there were 83 defendants who represented the mortgagees in possession. Various defences raised by the defendants were negatived and ultimately the Trial Court decreed the suit except as regards a part of the property in possession of 81st defendant. The dissatisfied plaintiff filed an appeal being A.S. No. 164 of 1989 before the Appellate Court against the 81st defendant against whom the suit was dismissed by the Trial Court. The remaining 82 defendants do not appear to have challenged the said decree of the Trial Court against them. The Appellate Court by its order dated 12th March 1956 allowed the appeal of the plaintiff against 81st defendant and held that property held by 81st defendant was also included in the mortgage deed Ext. A1 dated 15.12.1896. 81st defendant carried the matter in Civil Appeal before the High Court being Second Appeal 163 of 1956 which also came to be dismissed on 10th June 1960. Thus by that date the decree for redemption of the suit mortgage against all the 83 defendants became final. Thereafter the respondent plaintiff-mortgagor filed Execution Petition No. 543 of 1962 for recovery of possession of the property from the respective judgment-debtors. During the pendency of the execution proceedings Kerala Land Reforms Act came into force from 1st April 1964. The Act created certain deemed tenancies and granted fixity of tenure to those deemed tenants. This Act was amended by Act 35 of 1969 by which Section 4A, with which we are concerned, was brought on the Statute Book with effect from 1.1.1970. The appellants contended before the Executing Court that t

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1996 Supreme(SC) 1440

Cases Referred (4)