The legislative intent of S.4A(1)(a) of the Kerala Land Reforms Act, 1963 is to confer the benefit of fixity of tenure on mortgagees in physical possession of the land for the requisite period, and the court interpreted that the mortgagee, despite changes in possession, qualified for the protection under the Section.

1. The plaintiff in a suit for redemption is the appellant. The suit was decreed by the trial court, but the decree was set aside by the lower appellate court. The facts which are not in dispute are: in 1091 M. E. (1915 A. D.) Ext. P1 mortgage in respect of the suit property was executed by the plaintiff's predecessor in favour of the defendant's predecessor one Narayanan. Narayanan executed two documents on 7-5-1099 M. E. By one document he sub-mortgaged the suit property and by the other he took the property back on lease from the sub-mortgagee. The sub-mortgagee filed O. S. No. 91 of 1107 M. E. in the Perumbavoor Munsiff's Court against Narayanan for recovery of the property in terms of the lease. That suit was decreed, but possession was not obtained by the sub-mortgagee. The dispute between the parties was ultimately compromised. In 1112 M. E. (1936 A. D.) Narayanan's right in the properly was assigned in favour of the defendant by Ext. P2. Subsequently in 1119M. E. (1945 A. D.) the plaintiff purchased the right of the mortgagor, by Ext. P3. The plaintiff has thus become the successor-in-interest to the mortgagor and the defendant to the mortgagee.

2. The question is whether the defendant, as successor to the mortgagee, is entitled to the protection of S.4A(1) (a) (read with Explanation II) of the Kerala Land Reforms Act, 1963 as a deemed tenant. The trial court rejected the defendant's contention holding that the defendant did not satisfy the requirement of possession for the requisite period as postulated in that Section, whereas the lower appellate court held that the defendant had the requisite possession to come within the Section.

3. S.4A(1)(a) reads:

"4A. Certain mortgagees and lessees of mortgagees to be deemed tenants:- (1) Notwithstanding anything to the contrary contained is any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if

(a) the mortgagee or lessee was holding the land comprised in the mortgagee for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or

(b)

(c)

Explanation I:-

Explanation II:- In computing the period of fifty years referred to in clause (a) or the period of thirty years referred to in clause (c), the period during which the predeceasor-in-interest or predecessors-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account...."

The contention of the plaintiff, which was accepted by the trial court, is that the defendant, who is the successor to the mortgagee, was not, even by tacking in terms of the Explanation, in physical possession of the property for the requisite period of fifty years, as the mortgagee had, during the period of the mortgage, sub-mortgaged the property, although, under another document of the same date, he took the property back on lease. Counsel for the appellant, referring to the decision of this Court in Subramania Iyer v. Lekshmikutty Amma, 1976 K.L.T. 389, submits that the sub-mortgagee, not being a predecessor-in¬interest or title of the mortgagee or assignee of the mortgagee, the possession of the sub-mortagee cannot be tacked on to the possession of the mortgagee. It is true that if the principle laid down in Subramania Iyer v. Lekshmikutty Amma, 1976 K.L.T. 389 applied to the facts of this case, the argument would be right. But unlike in that case where the sub-mortgagee came into possession of the property, the mortgagee in the present case did not lose physical possession of the property to the sub-mortgagee at any material time because he retained his possession by means of a lease under the sub-mortgagee. But counsel's argument is that the moment sub-mortgage was granted under one document, possession