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Judges : P.SUBRAMONIAN POTI,P.JANAKI AMMA
BHASKARA MENON - Appellant
Versus
MADHAVAN - Respondent
Case No : C. R. P. No. 983 of 1973
Decided On : 10/14/1974
Advocates Appeared :
P. N. Sankaranarayana Pillai; For Petitioner S. Venkatarajan; For Respondent
redeeming co-mortgagor - Mortgage Redemption - S.4A of Act 1 of 1964 - [S.4A of Act 1 of 1964] - The court discussed the application of S.4A of Act 1 of 1964 in the context of a redeeming co-mortgagor's claim to be entitled as a mortgagee. The court referred to the principle of subrogation and held that the redeeming co-mortgagor is entitled to seek reimbursement of the amount spent before surrendering possession, but cannot claim to be a mortgagee for the purpose of S.4A of the Act.
Fact of the Case:
The case involved final decree proceedings in a redemption suit where the question arose whether a redeeming co-mortgagor could claim to be entitled as a mortgagee under S.4A of Act 1 of 1964. The properties were originally mortgaged and subsequently redeemed by one co-mortgagor, and redemption was sought by another party who had obtained the rights of a co-mortgagor's tavazhi.
Finding of the Court:
The court held that the redeeming co-mortgagor is entitled to seek reimbursement of the amount spent before surrendering possession, but cannot claim to be a mortgagee for the purpose of S.4A of the Act. The court reversed the lower court's order and remitted the case back for further orders on the petition for final decree.
Issues: The key issue was whether a redeeming co-mortgagor could claim to be entitled as a mortgagee under S.4A of Act 1 of 1964, and the character of a person who redeems a mortgage and holds possession of the property.
Ratio Decidendi: The court referred to the principle of subrogation and held that the redeeming co-mortgagor is entitled to seek reimbursement of the amount spent before surrendering possession, but cannot claim to be a mortgagee for the purpose of S.4A of the Act. The court also emphasized that questions relating to transfer of property were decided based on general rules of justice, equity, and good conscience.
Final Decision: The court allowed the revision, set aside the lower court's order, and remitted the case back to the trial court for further orders on the petition for final decree. No costs were awarded.
1. An interesting question is raised in this revision and that is whether a redeeming co-mortgagor is entitled to claim that in regard to that portion of the property to which title is in the other co-mortgagors he has stepped into the shoes of the mortgagee for all purposes so much so he could set up a plea that he is entitled as a mortgagee to claim the benefit of S 4A of Act 1 of 1964. The question arose in final decree proceedings in a redemption suit. An application for passing a final decree has been dismissed by the court below and that is the subject of revision.
2. The short and relevant facts are: The plaint schedule properties which belonged to Nedumbilli Tarwad of defendants 1 to 3 were set apart to the tavazhi of defendants 1 to 3 as also to the tavazhi of one Karthiyayani Amma. Distinct portions of the properties were so set apart to the two tavazhies. This was in the partition deed executed in the tarwad in the year 1096. At that time the properties were outstanding under a mortgage from the tarwad of the year 1081. The partition deed authorised redemption by the two tavazhies jointly or redemption of the entire property by anyone of the tavazhies In the latter event the redeeming tavazhi was to hold possession of the proper ties of the other tavazhi subject to the obligation to surrender possession on reimbursement of the expenses met in so redeeming the property of the other tavazhi. The tavazhi of defendants 1 to 3 redeemed the properties. Subsequently the right of the tavazhi of defendants 1 to 3 was obtained by the 5th defendant on whose death it has devolved on the 9th defendant. Redemption was sought by the plaintiff who had obtained an assignment of the rights of Karthiyayani Amma's tavazhi in regard to the portion of the property set apart for the said tavazhi. A preliminary decree was granted and the property to be redeemed was referred to as the blue marked portion in the commissioner's plan. After the preliminary decree a contention was set up by the 9th defendant that he was a tenant to be deemed as such by reason of the provisions of S.4A of Act 1 of 1964.
3. The question of applying this section would arise only if the 9th defendant is a mortgagee. If he is a mortgagee he can claim to be a lessee by reason of the application of S.4A. But if he is not one such there is no basis for such a claim. S.4A reads:
"4A. 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 proceeding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or
(b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose
for a continuous period of not less than twenty years immediately preceding such commencement:
Provided that a mortgagee or lessee falling under this clause shall not be deemed to be a tenant if he, or, where he is a member of a family, such family was hoeding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette, or
(c) the land comprised in the mortgagee was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949 would have applied if that Act had been in force at the time of mortgage, and
(i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969,
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