Judgment

R.M.SAHAI, J.

(1) WHETHER a junior member of the Tarwad, in Kerala, who redeems the mortgage and is in possession for more than 50 years is a mortgagee holding the land comprised in a mortgage so as to acquire rights of tenant under Section 4-A of the Kerala Land Reforms Act, is the legal issue that arises for consideration in this appeal by successors of other members of the Tarwad whose suit for partition was dismissed in second appeal by the High court.

(2) IN the year 1045 (1870 a mortgage was executed by the Karnavan (akin to Manager) of the Tarwad (somewhat like a joint family). Two junior members, of the Tarwad, paid the amount in the year 1061 (1886, got the property released, obtained possession and they or their descendants continued in possession as such. In 1967 a suit for partition was filed by successors of other members of the Tarwad, in whose favour equity of redemption, of the land in suit, was transferred in a family partition in 1962. The suit was resisted amongst others on acquisition of right of tenant under Section 4(1(a) of the Land Reforms Act. Since there was no dispute on basic facts, namely, redemption of mortgage by two junior members and their continuance in possession for more than fifty years on the date Section 4(1(a) was added to the Land Reforms Act the rights of parties were decided, more, as a matter of law. According to the trial court and first appellate court the junior members, as a result of getting the property released, were holders of special right under Marumakkathayam Law. They could not be held to be mortgagee, therefore, they did not acquire any right under the Land Reforms Act. But the High court held otherwise, mainly because in 1962 when the Tarwad was partitioned the property was treated as under mortgage since equity of redemption for the same was given to the plaintiff appellant. It was found that, even, in the plaint it was a.verred that in consequence of release the mortgagee right vested in the predecessors of defendants who were junior members of the Tarwad. The High court, therefore, held that the defendants being assignee of mortgage in possession for fifty years, on the date the Land Reforms Act was amended and Section 4(1(a) was added by Act 35 of 1969, were entitled to rights as tenants.

(3) THE High court, thus, accepted the claim of defendants because the members of the Tarwad treated the mortgage to be continuing on the date the suit was filed. This, apart, it was held that a junior member of the Tarwad paying off the debt of Tarwad becomes a mortgagee of the excess share in his own right. But this enunciation of law was not accepted as correct by a division bench of the Kerala High court itself in Raghavan Nair v. Anandavally Amma. The question, therefore, is if a junior member of the Tarwad who redeems the property, and gets release, is holder of special right only or he steps into the shoes of mortgagee.

(4) NATURE of right of ajunior member in the Tarwad, a family corporation, in which every member male or female possesses equal right has been explained by this court in K.K. Kochuni v. State of Madras thus:

"... The incidents of a tarwad are so well-settled that it is not necessary to consider the case-law, but it would be enough if the relevant passages from the book Mulabar and Aliyasanthana Law by Sundara Aiyar are cited. The learned author says at p. 7 thus:

THE joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the kamvan. The individual members are not entitled to enforce partition, but a partition may be effected