The main legal point established in the judgment is that for a person to be deemed a tenant under S.4-A (1) (a) of the Kerala Land Reforms Act, their possession as a mortgagee or lessee of a mortgagee must continue till 1st January 1970.

Headnote:
Mortgage - Kerala Land Reforms Act - S.4-A (1) (a)
Fact of the Case:

The appellant filed a suit for redemption of a mortgage of property belonging to her tarwad, which was decreed by the trial court. The subsequent appeals and amendments to the plaint led to a final decree in favor of the appellant. However, the respondents objected to the delivery of the property, claiming fixity of tenure as deemed tenants under S.4A of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969.
Finding of the Court:

The court interpreted S.4-A (1) (a) to mean that the mortgagee or lessee must hold the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. The court held that the possession contemplated by S.4A(1)(a) must continue till 1st January 1970, and if the possession as a mortgagee had ceased before that date, the section is not attracted.
Issues: The main issues were the interpretation of S.4-A (1) (a) of the Kerala Land Reforms Act and whether the case should be referred to the Land Tribunal as per S.125 (3) of the Act.
Ratio Decidendi: The court held that the possession as a mortgagee or lessee of a mortgagee must continue till 1st January 1970 to be deemed a tenant under S.4-A (1) (a). The court also ruled that non-compliance with S.125 (3) of the Act would not make the decree passed by the trial court a nullity, and the appellate court had the power to decide the question itself.
Final Decision: The court set aside the orders of the lower courts and directed delivery of the property pursuant to the decree, as the respondents were not deemed tenants under S.4A(1)(a).

Judgment :-

1. The facts of this case have been stated in the order of reference made by the Division Bench that heard the appeal in these terms.

"The appellant had instituted the suit, from which the appeal arises, for redemption of a mortgage of property which belonged to her tarwad, executed in the year 1086. The suit was brought forward on the averment that a subsequent sale of the equity of redemption of the property is invalid and not binding on the appellant. The suit numbered as O.S. 173/1120 of the Munsiff Court of Mavelikara was first decreed by the trial court; but on appeal as A. S. No. 254/1124 of the District Court of Mavelikara, the appeal was allowed dismissing the suit on the ground that there was no prayer for setting aside the sale executed by the members of the tarwad (appellant was at that time a minor). In Second Appeal as S. A. 796/51 before the Travancore-Cochin High Court, the appellant was allowed to amend the plaint so as to impugned the sale deed. After remand the plaint was amended including a prayer to set aside the sale deed in favour of the respondents. The trial court allowed the amendment and after hearing the parties, by judgment, dated 22nd December, 1958 decreed the suit setting aside the sale deed in favour of the respondents.

On appeal by the respondents before the Sub Court, Mavelikara as A. S.144/59, the appellate court by judgment, dated 30th December 1961 restricted the right of the appellant to the share of 3/12 in the suit properties and allowed recovery of that share on partition by metes and bounds after payment of the proportionate mortgage amount covered by the mortgage deed of 1086. The respondents took up the matter before this court as S. A. 610/62, while the appellant filed an appeal as S. A. 403/62 questioning restricting recovery only to 2/12 share of the suit properties. Both the appeals were dismissed by a common judgment, dated 30th September, 1965 by which the appellant's right to recover the 3/12 share after payment of the proportionate amount charged on the property was upheld.

Final decree was passed on 28th March 1969 whereby the appellant was allowed to recover the plot of land demarcated in the plan prepared by the Commissioner and accepted by the final decree after payment of proportionate amounts charged on the property and value of improvements thereon. Consequent on the final decree, application for execution was filed as E. P. No. 277/69 for recovery of the property after deposit of the amount, as required in the final decree. The 3rd defendant, respondent No. 1. filed objection to delivery of property claiming fixity of tenure as deemed tenant under S.4A of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (shortly stated the Act). Both the lower courts Execution court as well as the lower appellate court upheld the objection holding that respondents are mortgagees in possession for more than 50 years and therefore entitled to claim the status of deemed tenant as per the provisions of the Act. Therefore, the plaintiff has come up in second appeal."

2. S.4-A (1) (a) of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (for short the Act) the relevant provision of law which has to be construed for deciding one of the contentions raised in this second appeal, is in these terms:

"4-A. Certain mortgagees and lessees of mortgagees to be deemed tenants. (1) Notwithstanding anything to the contrary contained in 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 mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (amendment) Act, 1969; or"

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