The rights of parties upon redemption of a mortgage under the Kerala Land Reforms Act are determined at the date of redemption, and the statutory provisions curtail the right of redemption to achieve the legislative object of protecting tenants' rights.

1. An interpretation in the practical application of Explanation III to S.2(25) of Act 1 of 1964 arises for determination in this second appeal by the plaintiff in a suit for redemption and recovery of possession. The brief facts found by the courts below and thus binding on this court are these.

2. There is a small building in the plaint property. This was in the possession of the predecessor-in-interest of the defendants for over 50 years when Appunni, the original owner granted the lease to the mother of the sixth defendant in 1936. It was a building satisfying the definition of a 'hut' in the Kerala Land Reforms Act, for, the cost of construction did not exceed Rs. 750/-and the rent that would have realised then did not exceed Rs. 3/- per month as well. While this lease of a hut, as it is now understood, was subsisting, the plaintiff, the owner, took an advance of Rs. 1500/- from the lessees and created a mortgage over the plaint schedule property including the but already leased. The mortgage deed is Ext. Al dated 1-8-1960. In 1973, the plaintiff filed the suit for redemption,

3. True, the plaintiff is entitled to redeem the mortgage and a decree has been granted for redemption also. But, on redemption, can the plaintiff obtain possession of the entire property mortgaged or is he compelled to allow the defendants to remain in occupation of the but and treat him as a kudikidappukaran under Act I of 1964? This question can be answered only with reference to Explanation

III to S.2 (25) of Act I of 1964 which reads thus:

"Where any kudikidappukaran secures any mortgage with possession of the land in which the kudikidappu is situate, his kudikidappu right shall revive on the redemption of the mortgage, provided that he has at the time of redemption no other homestead or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any Panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead."

4. On the facts found, the courts below held that defendants 1 to 5 were originally given possession of only a hut, they had no other homestead, they were therefore kudikidappukars and that their rights revived when the mortgage is redeemed in view of the above Explanation III.

5. The defendants have filed this Second Appeal and this court ordered notice under S.100 CPC. on the following question of law:

"(i) Whether the interpretation placed by the courts below on Explanation.3 to S.2(25) of the Kerala Land Reforms Act is sustainable in law?

(ii) Whether Explanation.3 of S.2(25) is applicable to cases where the person who secures the mortgage is not a kudikidappukaran on the date of the mortgage?"

6. When the case came before our learned brother, Balakrishna Menon, J., the case was referred to a Division Bench. The reference reads thus:

"The question involved in this second appeal is as to whether it is necessary for the purpose of Explanation III to S.2(25) of the KLR. Act that the kudikidappukaran securing the mortgage should be a kudikidappukaran as defined in the Act as amended or whether he should have been a kudikidappukaran as the law then stood.

The decision in Seinaba v. Narayanan (1970 KLT. 912) does not deal with this aspect of the question raised by the Counsel for the appellant. I consider the question important enough for decision by a Division Bench. This second appeal is therefore referred to a Division Bench."

7. The counsel for the appellant contends that Explanation III to S.2(25) can only apply if a kudikidappukaran secures a mortgage and as there was no kudikidappukars in the Malabar area in 1960 when the mortgage was created, the primary condition to attract the explanation is not satisfied and therefore it cannot be called in aid to defeat the right of redemption. It may not be very correct to say that there were no kudikidappukars in the Malabar area before 1960. Under the Malabar Tenancy Act lessees of bu