Kerala High Court
Thankamma vs Mathai Mathew on 13 March, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 361 of 2001(B)
1. THANKAMMA
... Petitioner
Vs
1. MATHAI MATHEW
... Respondent
For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)
For Respondent :SRI.K.S.HARIHARAPUTHRAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/03/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A. No.361 of 2001
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Dated this the 13th day of March, 2009
J U D G M E N T
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Defendant Nos.2, 5, 6 and 8 have preferred this second appeal on the following substantial questions of law:
"(1) Has not the registry of the suit
properties which are kandukrishi thanathu
lands in the name of defendant No.1
extinguished the right, title and interest of the plaintiff in the suit properties and does the decision in Chuppan Nadar Narayanan Nadar v. Kumaran Kochummini and others (1971 KLT 440) require reconsideration?
(2) Does such registry enure to the benefit of the plaintiff even when defendant No.1 obtained such registry after an open fight with the plaintiff?
(3) If the registry does not enure to the benefit of the plaintiff, has not the defendants prescribed title by adverse possession and law of limitation?
(4) Are not the improvements made by defendant No.1 enhancing the value of the land S.A. No.361 of 2001 -: 2 :- for which compensation is due to defendant No.1?
2. Parties are referred to as plaintiff and defendants for the sake of convenience.
3. Plaintiff filed the suit for redemption of mortgage in respect of the suit properties which, it is not disputed before me are 'kandukrishi thanathu lands'. According to the plaintiff, suit properties formed part of kandukrishi lands (home farm lands of erstwhile Maharaja of Travancore State). It was given on a permanent lease to one Thomman Jacob (Exhibit A1 series are the delivery lists produced to prove the auction of the said properties in favour of Thomman Jacob). While he was in possession and enjoyment of the said properties he assigned his leasehold right in favour of the plaintiff as per Ext.A4, assignment deed No.784/1955 dated 11.7.1955. Plaintiff mortgaged his leasehold right in favour of one Ouseph Ouseph as per Ext.A2, mortgage deed No.282/57 dated 5.4.1957. Ouseph Ouseph assigned his (mortgagee's) right in favour of defendant No.1 as per document No.687/1963 (which is not produced in the case). Plaintiff thereafter created puravaypa (another mortgage) for Rs.6,500/- over his leasehold right in favour of defendant No.1 as per S.A. No.361 of 2001 -: 3 :- Ext.A3, deed No.812/1963 dated 27.6.1963 fixing the period of redemption as 12 years. In the meantime the Maharaja of Travancore promulgated kandukrishi proclamation of 1154 M.E. transferring and surrendering right, title and interest in all kandukrishi lands to the Government of Travancore. Government of Travancore framed and published Rules for assignment of registry of kandukrishi lands on 11.10.1958 providing for assignment of kandukrishi lands to the lessees, assignees or mortgagees. In pursuance of that publication plaintiff and defendant No.1 applied for assignment individually. Ultimately, Government preferred the claim of defendant No.1 and granted him registry. According to the plaintiff, defendant No.1 cannot take that advantage in derogation of his right by virtue of his position as mortgagee under the plaintiff and hence the registry of the lands in his favour enured to the benefit of the plaintiff. Defendant No1. is holding that right as trustee of the plaintiff. Defendant No.1 is therefore bound to transfer the property on receipt of the mortgage and puravaypa amounts as stipulated in the deeds above referred. Defendants 2 to 5 are impleaded in the suit as subsequent encumbrancers. Defendant Nos.1 and 2 while admitting the transactions stated by plaintiff contended that defendant No.1 applied for registry of the suit properties in his name before the Special S.A. No.361 of 2001 -: 4 :- Tahsildar concerned, but that application was rejected. The appeal preferred to the District Collector was rejected. Hence defendant No.1 preferred a revision before the Government (Board of Revenue). That revision was allowed as per Ext.B1 order dated 22.9.1971. The registry of land was granted in the name of defendant No.1. Exhibit B2 is the pattayam No.A3-8022/1971. Plaintiff challenged that order in this Court in Writ Petition No.729 of 1972 but it was dismissed as per Ext.B3, order dated 20.12.1974. The suit is therefore barred by the principles of res judicata. Defendant No.1 became the absolute owner of the properties as per Ext.B1, order of the Government (Board of Revenue) granting registry in his name. In exercise of his absolute right over the suit properties defendant No.1 transferred 2.5 acres to defendant No.2, 3 acres to Maniyamma, daughter of defendant No.1 and another 2 acres to Sreedevi Amma who are necessary parties to this litigation. The creation of mortgage was void and not binding on the Government. Defendants 1 and 2 have constructed a house in the suit properties more than 20 years back spending around Rs.5 lakhs. Another sum of Rs.5 lakhs was spent for reclamation of the lands. It is incorrect to say that defendant No.1 obtained registry in favour of plaintiff. Plaintiff was only a tenant-at- will in respect of the suit properties. Defendant No.1 obtained registry S.A. No.361 of 2001 -: 5 :- as per Ext.B1 in derogation of that right. Right if any of the plaintiff is lost by adverse possession and limitation.
4. Learned Munsiff framed issues whether the suit is barred by res judicata, whether plaintiff has subsisting right over the suit properties, whether he is entitled to redeem the mortgage and whether his right is lost by adverse possession and limitation. Apart from the exhibits above referred parties have adduced oral evidence as well. Learned Munsiff answered the issues in favour of the plaintiff and granted decree for redemption of the mortgage. That judgment and decree were confirmed by the first appellate court. The first appellate court also rejected the claim of defendant No.1 for value of improvements. Hence this appeal at the instance of defendant No.2 and 5, 6 and 8 who are assignees and legal representatives of defendant No.1.
Has not the registry in the name of defendant No.1 extinguished the right, title and interest of the plaintiff?:
5. It is contended by the learned counsel for defendants 2, 5, 6 and 8 that the registry of the suit properties (kandukrishi thanathu lands) in favour of defendant No.1 amounted to automatic extinction of whatever right the plaintiff had over the said properties. According to the learned counsel, the decision in Chuppan Nadar Narayanan S.A. No.361 of 2001 -: 6 :- Nadar v. Kumaran Kochummini and Others (1971 KLT 440) require reconsideration in that, though the Full Bench was considering the nature and character of registry in respect of kandukrishi 'thanathu' lands, all the decisions referred to by the Full Bench related to the registry of kandukrishi 'patta' lands which is different in nature and character from the registry of kandukrishi 'thanathu' lands. According to the learned counsel, the Full Bench has not laid down the correct law in respect of the registry of kandukrishi 'thanathu' lands. Learned counsel for the contesting respondent (plaintiff) in response stated that what was assigned by Thomman Jacob in favour of the plaintiff as per Ext.A4 is the leasehold right over the suit properties and what the plaintiff mortgaged in favour of Ouseph Ouseph as per Ext.A2 and what defendant No.1 got from Ouseph Ouseph as per document No.687/1963 is also that leasehold right. The puravaypa created by the plaintiff in favour of defendant No.1 as per Ext.A3 also is over the leasehold right of the plaintiff. Registry is only in respect of the proprietory right of the Government. Therefore the contention that the registry of suit properties in the name of defendant No.1 extinguished the leasehold right of the plaintiff cannot be sustained.
6. Kandukrishi lands are described in the Travancore State S.A. No.361 of 2001 -: 7 :- Manual by V. Nagam Aiya, Vol.III at page 325. Kandukrishi lands are described as the home farm of the sovereign and are cultivated by the tenant on behalf of the sovereign himself. The tenants holding such lands are tenants-at-will who theoratically do not possess even the right of occupancy though as a matter of fact they are not interfered with so long as the Sirkar dues are paid. In Travancore Manual by T.K. Velupillai, Vol.III at page 193 kandukrishi lands are described as sthanam properties of H.H. the Maharaja, i.e., the home farm of the sovereign and are cultivated by the tenants. Tenants have no right of property. They are mere tenants at will. But they are not interfered with so long as the dues are paid. The policy of the Government is to bring the revenue registry of the alienated kandukrishi lands into accord with actual possession by transferring registry in favour of the alienees in possession. It is also stated that kandukrishi lands are either 'pattom' or 'thanathu'. Pattom lands are those for which pattas were issued at the time of the settlement while thanathu lands are those for which no pattas are issued at the time of settlement and which are enjoyed by the tenants either on payment of the rent fixed at settlement or on kuthakapattom given by the kandukrishi department. Generally, tenants of kandukrishi pattam lands when they are renewed are entitled to get compensation for S.A. No.361 of 2001 -: 8 :- their improvements while the tenants of the thanathu lands cannot as a matter of right claim compensation. The Travancore Government framed Rules for kandukrishi lands on 8th March 1934. Rule 2(a) of the Rule says that kandukrishi lands are of two kinds; kandukrishi thanathu lands and kandukrishi pattam lands. Rule 3 states that kandukrishi Tahsildar is competent to enquire and effect the transfer of kandukrishi holdings in the revenue registers. But only transfers by inheritance and family partition shall be recognised in the case of kandukrishi thanathu lands. Other kinds of transfer in the case of such lands will entail forfeiture of the tenancy. In other words, kandukrishi pattam lands could be transferred by the tenant in any lawful manner so far as kandukrishi thanathu lands are concerned, transfer is permitted by inheritance and family partition alone and Rule 3 specifically provides that any other mode of transfer in the case of kandukrishi thanathu lands would entail forfeiture of the tenancy. Rule 4 of the Rules authorises the kandukrishi Tahsildar to issue pattas for kandukrishi pattom lands when he is satisfied that they have changed hands by virtue of outright sale voluntary or involuntary gift, partition and testamentary and intestate succession or when he, by virtue of the rules enters on behalf of the Sirkar into fresh lease arrangements in regard thereto. As regards the nature and S.A. No.361 of 2001 -: 9 :- character of tenancy in respect of kandukrishi lands it is stated in Rule 61 of Travancore Land Revenue Manual, Vol.III, page 34 that kandukrishi tenants include pattom, thanathu, irayaili, etc., and that pattas had been issued in the settlement only to the holders of pattom lands. Kandukrishi tenants whether they hold pattom or thanathu lands are mere tenants-at-will. The distinction between 'pattom' and 'thanathu' lands, according to learned counsel for the contesting defendants can be discerned from Section 8 of the Travancore Code of Civil Procedure as well. That provision created a bar on suits in relation to kandukrishi lands unless the plaint is accompanied by an order of the Government to seek redressal in civil courts. Exemption was granted to registered holders of kandukrishi pattom lands recognised by Government to recover the land from a mortgagee or lessee or to evict a trespasser.
7. The Government framed Kandukrishi Land Assignment Rules (for short, "the Rules") in the year 1958. Rule 3 defines kandukrishi land including kandukrishi 'pattom' and kandukrishi 'thanathu' lands. Rule 5 states as under:
"5(1) Kandukrishi pattom land shall be registered in the name of the pattadar, or if there has been outright assignment in whole or S.A. No.361 of 2001 -: 10 :- in part by the pattadar, in the name of the assignee to the extent necessary or if there has been a partition of the land or inheritance by succession or acquisition of title by decree of Court, in the name of the person deriving title as per such partition or succession or decree.
(2) Mortgagees or lessees from pattadars of pattom lands or their assignees or representatives will continue to enjoy the existing rights even after assignment.
(3) Notwithstanding anything contained in sub-rule (1) where a lessee or sub lessee is in possession of Kandukrishy Pattom land and the pattadar or any other person entitled to assignment on registry under sub-rule (1) has not filed an application for such assignment before the date specified in sub-rule (a) of Rule 10, the land shall, subject to the provisions of sub-rule (c) of Rule 10, be registered in the name of such lessee or sub-lessee, as the case may be".
According to the learned counsel for contesting defendants, Rule 5 which relates to kandukrishi pattom land admits transfer of possession in any form and Rule 5(2) indicate that the registry in respect of the pattom land recognised the right of the original lessee S.A. No.361 of 2001 -: 11 :- who transferred possession as is clear from Rule 5(2) that mortgagees or lessees from pattadars of pattom lands or their assignees or representatives will continue to enjoy the existing rights even after assignment. Rule 6 dealing with 'thanathu' lands reads as under:
"6. (1) Subject to the provisions of sub-rule (2) Kandukrishi Thanathu land shall be registered in the name of the lessee, and if there has been a partition of the land or inheritance by succession or acquisition of title by decree of Court, in the name of the person deriving title as per such partition or succession or decree.
(2)(a) Where a lessee has transferred the possession of thanathu land to another person whether by sale, sub-lease, Otti, mortgage or any other transaction under a registered document the land shall be registered in the name of such transferee.
(b) in the case of thanathu lands involved in civil suits, such lands shall be registered in the name of the person, or persons deriving title according to the final decisions in such civil suits".
8. Learned counsel for contesting defendants contends that S.A. No.361 of 2001 -: 12 :- Rule 6(2a) does not contemplate or recognise the presence of the transferor or preserve his right and interest but the right is conferred on the transferee who is in possession, be it by a lease, sub-lease, Otti, mortgage or any other transaction but by a registered instrument. Learned counsel contends that Rule 6(2a) extinguished the right of the transferor in 'thanathu' land once the registry is granted in the name of the transferee who is in possession under a registered instrument. According to the learned counsel though tenancy in respect of kandukrishi pattom and thanathu lands are nothing but tenancy-at- will, the tenant of the kandukrishi pattom land enjoys a better right in that he will not normally be evicted so far as he paid the Sirkar dues and, he is entitled to registry at the time of settlement if found in possession and Rule 5(2) also admits the right of the transferor whereas in the case of kandukrishi thanathu lands, though that also is a tenancy-at-will, person in possession is not entitled to get registry at the time of settlement, Sirkar is free to dispossess him at any point of time even without payment of compensation and that it is the absolute right of the Sirkar to grant the registry in favour of any person found in possession of kandukrishi thanathu lands even in derogation of the right of any other person who was earlier in possession. Once such registry is granted, it extinguished the right of the former possessor if S.A. No.361 of 2001 -: 13 :- any. To substantiate the above contentions learned counsel placed reliance on the following decisions:
(i) Sankaranarayana Panikar and Others v. Kunjan Pillai and Others (XXVI TLR 184): In this case a Tharwad was in possession of kandukrishi (it is not clear whether it was pattom or thanathu) land. That land was mortgaged to the
Tharwad of the defendants. Government registered the land in the name of defendant No.1 at the time of settlement. Plaintiffs wanted to get back the land. Defendants contended that the registry extinguished the title of the Tharwad of the plaintiffs. It was held that the holder of kandukrishi lands (home farm lands of the sovereign) is tenant-at-will and has no right to alienate the property by sale, gift, mortgage or in any other way without the previous consent of the Sirkar. The Sirkar has the absolute right of granting the property to any one it likes and the registry extinguished the title if any which the plaintiffs had over the properties and conferred title on defendant No.1. It was held that the Tharwad of the plaintiffs had no subsisting title to the land on the date of the suit.
(ii) Parameswaran Gonvindan v. Ouseph Geevarghese Kathanar (XXIX TLR 100): In this case the S.A. No.361 of 2001 -: 14 :- owner of equity of redemption over the suit properties sought redemption of mortgage. The mortgagee's interest through intermediate transfers vested in the defendant. Defendant contended that the properties are kandukrishi lands, that patta in respect of the properties had been granted to him by the Sirkar and hence the suit is not maintainable. It was argued that the grant of patta was issued behind the back of the plaintiff. Defendant relied on the decision in Sankaranarayana Panikar's case. Court found that assuming that the plaintiff was not heard before the Sirkar decided to grant patta to the defendant in respect of the kandukrishi lands, it made no difference and that holders of kandukrishi lands are merely tenants-at- will who have no right of alienating the properties without the previous consent of the Sirkar. The grant of patta operated as extinguishment of the title of any other person in such lands.
(iii) Ouseph Abraham v. Kuncherira Kuncheria and Another (XXII TLJ 813): This decision concerns kandukrishi pattam lands. Property was held jointly by the father of defendant No.1 and the paternal grant father of the plaintiff. When the plaintiff was a minor another person representing him as his next friend executed a sale deed in favour of defendant No.1 in respect of the said properties. Following that, defendant No.1 got registry of the S.A. No.361 of 2001 -: 15 :- land in his name. Plaintiff challenged the sale deed executed on his behalf as void, contending that the person who represented him was not his next friend or competent to do so. It was held that though there was perhaps a fraud on the plaintiff (regarding the execution of the sale deed) he cannot set aside the registry which the Sirkar was competent to grant or withhold from any one. Reliance was placed on the decision in Sankaranarayana Panikar's case and Ouseph Abraham's case.
(iv) Subramonian Kesavan Empran, died, his heir Kesavan Narayanan Empran v. Krishnan Govindan Plappalli and Another (XXII TLJ 968): In that case question arose whether the right of the person in possession of kandukrishi lands could be attached and sold in execution of a decree against him. The Full Bench held that the person in possession has a limited right (in respect of the kandukrishi pattam lands) to be in possession until he is evicted by the Sirkar for non-payment of dues and that such right could be attached and sold. The Full Bench observed thus:
"It has no doubt been ruled repeatedly by this Court that the kandukrishi tenant is only a tenant-at-will under the Crown. But even so it S.A. No.361 of 2001 -: 16 :- cannot be held that it is not an estate known to the law or that it creates no right or interest at all. No ruling has been cited in support of the contention that the right of a tenant-at-will cannot be attached and sold. Such a tenant has a right which is recognised by the law and is available against all the world except the landlord and even as against him his position is not like that of a mere tenant by sufferance while the former has its origin in a contract of letting (express or implied) the latter cannot arise by contract and is in fact only a mere fiction of the law to prevent what would otherwise be an act of trespass. A tenancy-at- will thus clearly gives rise to reciprocal rights and liabilities (Fao, Landlord and Tenant, Fifth Edition, pages 2, 445, 651)".
According to the learned counsel for the contesting defendants that limited right (even if there be any) is available only in respect of kandukrishi pattom lands and not thanathu lands. It is also contended by the learned counsel that even in the light of the Full Bench decision, right of Sirkar even with respect to kandukrishi pattom lands remained unaffected, as it was before.
(v) Gnanabharanam Muthiah v. Soosamuthu S.A. No.361 of 2001 -: 17 :- Maryaviswasam Nadar (1947 TLR 558): This decision concerned unregistered puduval land. But according to the learned counsel for the contesting defendants, the reasoning applies to kandukrishi lands also. Plaintiff reclaimed the said land and made some improvements and then leased the same to defendant No.1 for a period of 10 years. Even before the expiry of the said period, plaintiff wanted to eject defendant No.1, the lessee from the said land on the ground of non-payment of rent and repudiation of obligations undertaken under the lease agreement. Defendant No.1 questioned the right of the plaintiff to claim ejectment. When the suit was pending Sirkar granted kuthakapattam lease in respect of the said property in the name of the defendants. The court pointed out that the grant terminated the rights of the lessor though the lessee was the grantee. It was also held that the Sirkar in exercise of its unfettered discretion granted the kuthakapattom right to defendant No.1 which the court cannot nullify. The principle was held applicable where the relationship between the parties is one of landlord and tenant or mortgagor and mortgagee or the like. Grant of kuthakapattom lease by the Sirkar (in favour of the defendant) obviously means eviction by the paramount title holder.
(vi) Neelakanta Pillai v. Madhavan Nair (1965 S.A. No.361 of 2001 -: 18 :- KLT 356): The suit properties were kandukrishi pattam lands. It was held that the occupant or cultivator of kandukrishi lands is regarded as a tenant-at-will and it is an absolute right of the Government to grant patta in respect of kandukrishi lands to whomsoever it pleases and such grant will extinguish all prior rights of the occupant. It is impossible to hold that the tenant holds such lands as a mere tenant- at-will with no powers of disposal at all over them. The rights of the occupant of such lands constitute valuable right. If the result of the grant of patta in respect of such lands is to extinguish antecedent rights of the occupant, it is clear that such grant can only be in derogation of the rights of the occupant. Learned counsel for the contesting defendants would draw a distinction that the case relates to kandukrishi pattom lands in respect of which there was some right for the lessee unlike in the case of kandukrishi thanathu lands where once registry is given to the person in possession, it amounts to eviction of the prior owner by the paramount title holder.
(vii) Meenakshi Amma v. Eappen (1966 KLT 1158): This case concerned kandukrishi pattom lands. In the partition in the Tharwad, property was allotted to the plaintiff. Patta was given mistakenly in the name of the Tharwad of the defendant. Defendant contended that the land was in the possession of his S.A. No.361 of 2001 -: 19 :- Tharwad at the time of revenue settlement and patta was rightly issued to his Tharwad. In the suit filed by the plaintiff for recovery it was found that whatever right the plaintiff had over the suit property stood extinguished on the Government giving registry in the name of the defendant.
(viii) Chuppan Nadar Narayanan Nadar v.
Kumaran Kochummini and Others (1971 KLT 440).
Property concerned was kandukrishi thanathu lands. Suit was for redemption of a mortgage created in 1097 M.E. executed in favour of the predecessor-in-interest of the defendant. Pending suit, Special Tahsildar passed order granting registry of the property to the defendant. Defendant contended that plaintiffs lost their right to redeem the mortgage as the registry did not enure to the benefit of the plaintiffs. That contention was overruled by the courts below. When the Second appeal came for hearing before a learned Single Judge, the matter was ordered to be placed before the Honourable Chief Justice for reference to a Full Bench as there appeared to be conflict between the decisions of the Division Bench in Neelakanta Pillai's case and the decision by the learned Single Judge in Kumarankari Devaswom's case. It was admitted that predecessor- in-interest of the plaintiff who executed the mortgage was a lessee of S.A. No.361 of 2001 -: 20 :- the suit property. The Full Bench held:
"As the mortgage was and could only be a mortgage on the leasehold interest of the mortgagor, the suit was really one for redemption and for recovery of the possessory interest of the lessee in the property. The interest of a lessee of kandukrishi thanathu land has been characterised as a 'valuable interest' in Neelakanta Pillai v. Madhavan Nair (1965 KLT 537) following the decision in Subramonian Kesavan Empran v. Krishnan Govindan Plappalli (22 TLJ, 968 at page
976) where it was observed that "it was impossible to hold that the tenant held the lands as a 'mere tenant-at-will with no powers of disposal at all over them". We do not think that in a suit for redemption of a mortgage on such an interest, the question whether the 'registry of the land in favour of the mortgagee would enure to his benefit or to the benefit of the mortgagor would have any relevance, as the mortgage that is sought to be redeemed is the mortgage of the leasehold interest. If by the registry the leasehold interest of the mortgagor was determined, and so the mortgagor has ceased to have any interest in the equity of S.A. No.361 of 2001 -: 21 :- redemption, namely the leasehold interest, the question might be relevant. But if by the registry the leasehold interest of the mortgagor was not determined, the lease will continue to subsist and the mortgagor being interested in the equity of redemption, namely the leasehold interest, would be entitled to redeem the mortgage on that interest and recover possession. The fact that the mortgagee has obtained the registry, and the fact that even if the registry would enure to his benefit, would not entitle him to resist redemption. In other words, even if it is assumed that the mortgagee became the owner of the property by the registry, the mortgagor would be entitled to redeem the mortgage on the leasehold interest, as the leasehold interest in the property has not been determined. From this point of view, the question whether the registry to the 2nd defendant and others of the land, would enure to the benefit of the plaintiffs is really foreign to the scope of the suit. The 2nd defendant cannot deny the leasehold interest of the predecessor-
in-interest of the plaintiffs at the time of the mortgage. In other words, the 2nd defendant would be estopped from contending that the mortgagor - the predecessor-in-interest of the plaintiffs - had no leasehold interest in the S.A. No.361 of 2001 -: 22 :- property. If that be so, the 2nd defendant must show that the leasehold interest has been determined either by the order of registry or by a notice to quit by the persons in whose favour the registry was granted in order to resist the suit for redemption. The registry did not determine the lese. There was no case for the 2nd defendant that the leasehold interest of the mortgagor has been determined in accordance with law by the persons in whose favour the registry was granted, and therefore, the plaintiffs have lost their equity of redemption which alone would disable them from filing the suit".
Learned counsel also referred to me a passage in Halsbury's laws of England on relation of landlord and tenant (at page 35) where the nature and character of tenancy-at-will is stated. It is stated that tenancy at will may be created by express agreement or by implication and it is determinable at the will of either party. It is a relation personal to the lessor and lessee so that the tenancy determines on the death of either party and neither the tenancy nor the reversion can be assigned or otherwise disposed of without determining the tenancy. Learned counsel contends that in Narayanan Nadar's case it is stated that in the case of kandukrishi thanathu lands registry in favour S.A. No.361 of 2001 -: 23 :- of the mortgagee in possession does not terminate the mortgagor- mortgagee relationship. All the decisions referred to and relied in Narayanan Nadar's case related to kandukrishi pattom lands the nature and tenure of which are entirely different from kandukrishi thanathu lands. According to the learned counsel it might be said in the light of the decision in Subramonian Kesavan Empran's case (referred supra) that in respect of kandukrishi pattom lands person in possession has some valuable right in that until he is evicted by the paramount title holder (Government) for non-payment of dues he is entitled to remain in possession whereas no such right is conferred a the person in possession of kandukrishi thanathu lands. Learned counsel contends that the cardinal distinction between kandukrishi thanathu and pattom lands was lost sight of while deciding Narayanan Nadar's case and that the decision in Narayanan Nadar's case does not lay down the correct law. Learned counsel therefore submitted that in case the decision in Narayanan Nadar's case is found not distinguishable on facts, the matter be placed before the Honourable Acting Chief Justice to constitute a Larger Bench to reconsider the decision in Narayanan Nadar's case.
9. In response learned counsel for the plaintiff contended that there is no reason or necessity to reconsider the Full Bench S.A. No.361 of 2001 -: 24 :- decision in Narayanan Nadar's case in so far as it lays down the correct proposition of law in respect of kandukrishi thanathu lands. Learned counsel contended that even in respect of thanathu lands Rule 6(2a) of the Rules recognised the presence of mortgagee who is in possession of the land and what is assigned to him by the registry is not the right of the mortgagor but, the proprietory right of the paramount title holder (Government) and hence the right of the mortgagor is not extinguished.
10. Authorities referred to above say that lease of kandukrishi thanathu lands is nothing but a tenancy-at-will. Therefore, it was determinable at the will of the lessor or lessee. In this case it is not disputed before me that the lands in question are kandukrishi thanathu lands and the right to possess the same was auctioned in favour of Thomman Jacob, predecessor-in-interest of the plaintiff. The said Thomman Jacob assigned that right in favour of the plaintiff as per Ext.A4, assignment deed No.785/1955 dated 11.7.1955. There is no case or evidence that there was any amount due from the plaintiff or his predecessor-in-interest to the Government so far as the said land was concerned. Therefore applying the law as laid down in Subramonian Kesavan Empran's case plaintiff as well as his predecessor-in-interest had a "valuable right" in respect of the said S.A. No.361 of 2001 -: 25 :- lands to be in possession until evicted by the Government. Plaintiff continued to have that "valuable right" at the time he mortgaged that right (leasehold right) in favour of the predecessor-in-interest of defendant No.1 as per Ext.A2, dated 5.4.1957 and the said Ouseph Ouseph assigned the mortgagee's right to defendant No.1 as per document No.687/1963. It is important to note that Rule 6(2a) recognised the presence of sub-lessee or mortgagee as the case may be as is evident from the fact that the provision stated that where the lessee has transferred the possession of kandukrishi thanathu lands to any other person be it by sale, sub lease, otti, mortgage or any other transaction under a registered document, the land shall be registered in the name of such transferee. Therefore it is not as if Rule 6(2a) of the Rules did not recognise the mortgagee in possession of the kandukrishi thanathu lands provided, he got such possession under a registered document. The contention advanced by the learned counsel for the contesting defendants is that on such registry whatever right the lessee who created the mortgage had over the property stood extinguished. True, decisions relied on by learned counsel counsel except the Full Bench decision in Narayanan Nadar's case supported that contention. But, the Full Bench has specifically held in respect of kandukrishi 'thanathu' lands that the S.A. No.361 of 2001 -: 26 :- registry of the land in the name of mortgagee under Rule 6(2) (as it stood then) did not extinguish the right of the mortgagor. The Full Bench held that:
".....as the mortgage was and could only be a mortgage on the leasehold interest of the mortgagor, the suit was really one for redemption and for recovery of the possessory interest of the lessee in the property. The interest of a lessee of kandukrishi thanathu land has been characterised as a "valuable interest" in Neelakanta Pillai v.
Madhavan Nair (1965 KLT 537) following the decision in Subramonian Kesavan Empran v. Kirshnan Govindan Plappilli (22 TLJ 968 at page 976) where it was observed that it was impossible to hold that the tenant held the lands as a mere tenant-at-will with no powers of disposal at all over them".
The Full Bench further observed that:
"We do not think that in a suit for S.A. No.361 of 2001 -: 27 :- redemption of a mortgage on such an interest, the question whether the registry of the land in favour of the mortgagee would enure to his behalf or to the benefit of the mortgagor would have any relevance as the mortgage that is sought to be redeemed is the mortgage of the leasehold interest".
The Full Bench also observed that:
"....even if it is assumed that the mortgagee became the owner of the property by the registry, the mortgagor would be entitled to redeem the mortgage on the leasehold interest, as the leasehold interest in the property has not been determined".
11. As I stated above, Rule 6(2a) does not show that the leasehold interest of the mortgagee was extinguished by the registry in the name of defendant No.1. Therefore, contention that the mortgagor ceased to have interest over the property by the registry cannot be accepted. Nor can the request for a reference on the decision of the Full Bench be accepted.
Whether defendant No.1 has perfected title by adverse S.A. No.361 of 2001 -: 28 :- possession and law of limitation?:
12. It is contended by the learned counsel for contesting defendants that at any rate, right of the plaintiff as mortgagor is lost by adverse possession and limitation at least from Ext.B1, dated 22.9.1971 onwards, defendant No.1 was in possession and enjoyment of the suit property as its absolute owner to the knowledge of the plaintiff, defendant No.1 got the registry in his name after an open fight with the plaintiff and hence the latter cannot any more contend that defendant No.1 is holding property or obtained the registry for and on his behalf. According to the learned counsel, principles of trust or constructive trust under Section 90 of the Indian Trust Act has no application to the facts of the case. As plaintiff being not in possession of the property was not entitled to get the registry, it cannot be said that defendant No.1 got the registry in derogation of any right of the plaintiff. Learned counsel also submitted that even in Narayanan Nadar's case, the Full Bench has not decided upon the application of Sec.90 of the Trust Act on such factual situation. Learned counsel pointed out from paragraph 3 of the plaint that the only contention raised by the plaintiff is that the registry obtained by defendant No.1 should enure to the benefit of the plaintiff and hence the mortgagor-mortgagee relationship survived. The character and S.A. No.361 of 2001 -: 29 :- nature of the suit though styled as one for redemption of mortgage is really one for recovery of possession and Article 65 of the Limitation Act applies. Learned counsel invited my attention to the evidence of P.W.1 who stated on behalf of the plaintiff that defendant No.1 has been enjoying the property as its owner to the knowledge of the plaintiff. Learned counsel for the plaintiff per contra contended that the plaintiff is not banking upon Sec.90 of the Trust Act to sustain the plaint claim, but on the mortgagor-mortgagee relationship which according to the learned counsel is not extinguished in the manner provided under law. Learned counsel contended that the principle 'once a mortgage always a mortgage' would and should apply and the mortgagor-mortgagee relationship could be terminated only by operation of law, a decree of court or by act of parties. Termination of mortgagor-mortgagee relationship by registry did not arise in view of the decision in Narayanan Nadar's case and there is no case or evidence of the said relationship being extinguished by the decree of a court or act of the parties.
13. The decisions in Gnanabharanam Muthiah v.
Soosamuthu Maryaviswasam Nadar and another (1947 TLR 558), Kumaramkari Devaswom v. Chacko (1960 KLT S.A. No.361 of 2001 -: 30 :-
800) and Neelakanta Pillai v. Madhavan Nair (1965 KLT
537) took the view that when the mortgagee obtained the registry after an open fight with the mortgagor, question of application of Sec.90 of the Trust Act did not arise. In Narayanan Nadar's case though the reference order (S.A. No.450 of 1968 dated 11.1.1971) referred to the application of Sec.90 of the Trust Act also, the Full Bench did not advert to the question of application of Sec.90 of the Trust Act. According to learned counsel for contesting defendants, therefore, the decisions in Gnanabharanam Muthaiah's case, Kumarankari Devaswom's case and Neelakanta Pillai's case should govern the field.
14. But, it is pertinent to note from Narayanan Nadar's case that what the Full Bench Bench observed is that:
".....in this view we do not think it necessary to consider the question whether the policy of the Government in enacting Rule 6(2) was to confer the benefit of the registry in all cases on the mortgagee in possession to the exclusion of the mortgagor and thus exclude the operation of S.90 of the Indian Trust Act".
It was observed that the question whether the registry will enure to S.A. No.361 of 2001 -: 31 :- the benefit of the mortgagee or not will have to be decided in a fresh suit. That observation followed the finding that (even) in respect of kandukrishi thanathu land, registry in the name of mortgagee did not terminate the mortgagor-mortgagee relationship.
15. Once mortgagor-mortgagee relationship is created, that has to be determined either by operation of law, a decree of court or by act of the parties. Possession of the mortgaged property by the mortgagor or mortgagee if not inconsistent with the rights of the other party under the terms of the mortgage cannot be adverse to such party. A mortgagee or his successor cannot so far as the mortgage subsists claim title adverse to mortgagor, as the mortgagee is deemed to be in possession of the property for and on behalf of the mortgagor and not independently till redemption of mortgage by the mortgagor. In law, he is estopped from denying the title of the mortgagor and setting up an adverse tittle in himself unless he has relinquished possession of the mortgaged property and has further entered into possession of it under a different status and title. Therefore it should depend on the nature of the right the mortgagee is asserting while entering the mortgaged property to ascertain whether his possession is adverse to the mortgagor or not. In the absence of evidence to show that the nature and character of possession by the mortgagee S.A. No.361 of 2001 -: 32 :- has changed, it must be held that he continued to possess the property on behalf of the mortgagor. But, there may be circumstances where mortgagee in possession may prescribe against the mortgagor. Based on the above broad principles, I shall consider whether defendant No.1 was holding the property adverse to the plaintiff from the time of Ext.B1.
16. In this case defendant No.1 got possession of the property under a valid usufructuary mortgage and hence his possession has a lawful origin. Exhibit B1 is the certified copy of the proceedings of the Board of Revenue (L.R.) dated 22.9.1971 in the Revision Petitions filed by the plaintiff and defendant No.1 against the dismissal of their respective appeals by the District Collector who confirmed the dismissal of their applications for registry by the Tahsildar concerned. The authority which passed Ext.B1 order stated thus:
"These revision petition relates to the registry of 11 acres 66 cents of kandukrishy Land in Sy.Nos.212/2, 210/6A, 211/2A, 213/1A and 210/5 of Chinnemkari Village in Thandaper Nol.51/23 standing in the name of one Thomman Jacob. The land was originally kandukrishy pattom in tenure. But it was subsequently released and Shri Thomman S.A. No.361 of 2001 -: 33 :- Jacob, the present Thandaper holder bid the same in auction in the year 1115 M.E. The lease was granted to the auction purchaser from 24.4.1115 M.E. Patta was also issued to him as per the rules then inn force and he became the Thandaper holder. Shri Thomman Jacob sold his right over the property to Shri Mathai Mathew as per sale deed No.784 dated 11.7.1955. But the Thandaper was not changed. Shri Mathai Mathew executed an otti deed No.282/1957 in favour of an Ouseph Ouseph chirakkal, Pallithanathu, Parippanadi on 5.4.1957. Otti right of Ouseph Joseph who subsequently purchased by Shri Kesava Kurup Rama Chandra Kurup, the first Revision Petitioner as per otti transfer deed No.687 of 1963. Shri Kesava Kurup Ramachandra Kurup is also in possession of puravaypa ( ) deed executed in his favour by Shri Mathai Mathew on 27.6.1963.
The case came up for hearing on 24.8.1970. Both parties were present through Advocates. No doubt the lands involved in this case are Thanathu lands as the lands were sold in public auction to Thomman Jacob and subsequently patta was granted to him. By virtue of the documents, viz., Otti deed and the puravaypa deed Shri Ramachandra Kurup is entitled for the registry of the land in his favour. S.A. No.361 of 2001 -: 34 :- The Collector rejected his request only on the ground that the registry in his name is not possible as Shri Ramachandra Kurup got full right only after 1.10.1957 and therefore the registry is not possible according to rule 6(2) of the Kandukrishy Land Assignment Rules. But the rule has since been amended as per Government Notification No.27255/No.3/69/LRD dated 16.7.1970 as a result of the judgment of the High Court of Kerala in O.P.No.38/66. Therefore, Shri Ramachandra Kurup is entitled to the registry of the land in his name. The Collector's order No.Kandkukrishy Assignment 20/65 dated 31.10.66 is set aside"
(underline supplied) No doubt, plaintiff had objected to the grant of registry in the name of defendant No.1. But going through Ext.B1 it is pertinent to note that defendant No.1 was not claiming any right adverse to the plaintiff even in the matter of registry. Instead, he was relying on the mortgage as well as the puravaypa in his favour to support his claim for registry. That was recognised by the Board of Revenue and going by Ext.B1 it would appear that the lower authorities rejected the claim of defendant No.1 for registry for the mere reason that as per Rule 6(2) of the Rules as it stood then, defendant No.1 should have got S.A. No.361 of 2001 -: 35 :- possession of the land, be it by Otti, sub-lease or mortgage by a registered document prior to 1.10.1957, the cut off date then provided under Rule 6(2) of the Rules. It is admitted that defendant No.1 got possession only after 1.10.1957. Therefore he was not eligible for registry. It is while so that the Rule was amended and the cut off date was deleted which enabled defendant No.1 to get the registry. Exhibit B1 does not show that the plaintiff had objected to the right of defendant No.1 to get registry for any other reason whatsoever. May be the objection of the plaintiff for registry in the name of defendant No.1 was that the latter got possession only after 1.10.1957. At any rate, it is not shown that the 'open fight' between the plaintiff and defendant No.1 was regarding the leasehold right of the plaintiff or the right of defendant No.1 to possess the property. Therefore it is difficult to accept the contention of the learned counsel for contesting defendants that it was after an open fight with the plaintiff as regards the entitlement of defendant No.1 to get registry that he got it in his name and hence possession of the property with defendant No.1 from the date of Ext.B1 is adverse to the plaintiff. On the other hand even Ext.B1 would show that there was no dispute regarding mortgage or puravaypa in favour of defendant No.1 and he was claiming registry only on its basis. Hence I am unable to accept S.A. No.361 of 2001 -: 36 :- the contention that from Ext.B1 onwards defendant No.1 was holding the property adverse to the interest of the plaintiff. I stated earlier while considering point No.1 that what was given to defendant No.1 by the registry was only the right of the paramount title holder i.e., the proprietory right of the Government which did not affect the leasehold right of the plaintiff which was mortgaged in favour of predecessor of defendant No.1. It is true that P.W.1 in his evidence stated that defendant No.1 was holding the property as its owner to the knowledge of the plaintiff and even constructed a building thereon. But, in the light of the principles stated above, that evidence is not sufficient to hold that repudiating right, title and interest of the plaintiff over that property, defendant No.1 was possessing the same. As such the contention that the right of the plaintiff if any is lost by adverse possession and limitation cannot be sustained. Whether defendant No.1 is entitled to get value of improvements?:
17. It is lastly contended by learned counsel for contesting defendants that at any rate contesting defendants are entitled to get value of improvements effected by defendant No.1. Learned counsel contended that the first appellate court was not correct in law or on facts in denying value of improvements to the contesting defendants S.A. No.361 of 2001 -: 37 :- relying on the decisions in Krishnan Sankaran v. Sankaran Channar (1959 KLT 1259) and Krishnan Nair v. Kunjan Pillai (1969 KLT 457). Learned counsel contended that those decisions are not applicable to the facts of this case. Learned counsel for the plaintiff contended that reclamation of the land and construction of the house are not in terms of the mortgage and puravaypa created in the name of defendant No.1 and hence whatever be the suitability of the said acts, contesting defendants are not entitled to get value of improvements.
18. In Krishnan Sankaran's case it was held that conversion of a double crop paddy land into a garden land however desirable it may be from the point of view of the mortgagee or the tenant, is a substantial alteration of the character of the holding and it cannot be described as an "improvement" for awarding compensation. In Krishnan Nair's case which was a case of conversion of nilam into garden land, the same principle was adopted.
19. That, defendants have effected improvements on the land is not very much in dispute as it is the case of the plaintiff in paragraph 8 of the plaint that defendant No.1 has made alteration in the plaint schedule properties violating the terms and intends of the mortgage and inconsistent with the nature of the lands and in violation S.A. No.361 of 2001 -: 38 :- of the existing law prohibiting conversion of paddy lands. In response, defendant Nos.1 and 2 contended that they have effected improvements. Learned Sub Judge did not frame an issue whether defendant No.1 is entitled to get value of improvements. But it is clear from the averments in the plaint and contentions raised in the written statements of defendant Nos.1 and 2 that parties went into trial conscious of the said claim of defendant Nos.1 and 2. Learned Sub Judge has not considered the question whether defendant Nos.1 and 2 are entitled to get value of improvements. ln appeal that question was specifically raised on behalf of defendant Nos.1 and 2 and the first appellate court raised point No.5 whether defendant Nos.1 and 2 are entitled to get value of improvements. Placing reliance on the decision in Krishnan Sankaran and Krishnan Nair's case, referred supra it was held that defendant Nos.1 and 2 are not entitled to get value of improvements. But that was on the premise that the land has been reclaimed as against the terms of the mortgage and the purpose for which the land was given to defendant No.1.
Learned counsel for defendant Nos.1 and 2 contended that the said decisions are not applicable to the facts of this case since there is no reclamation of the land as such or conversion into any other type. Instead, what is involved is only construction of bund (chira) around S.A. No.361 of 2001 -: 39 :- the kayal lands and planting trees on those bund to give it further strength and the construction of house in the raised portion, all intended for the proper cultivation of the kayal lands.
20. Unfortunately, no commission was taken out at the stage of preliminary decree proceedings to find out the improvements effected by defendant Nos.1 and 2. I am told that an Advocate Commissioner had inspected the lands in the course of final decree proceedings. Going by the decision referred supra and relied on by the first appellate court also if there is a reclamation of the land as purayidom defendant Nos.1 and 2 are not entitled to claim value of improvements.
21. 'Improvement' is defined in Section 2(b) of the Kerala Compensation for Tenants Improvements Act, 1958 thus:
"2(b) "improvements" means any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding is let, mortgaged or occupied, but does not include such clearances, embankments, levellings, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary course of cultivation and without S.A. No.361 of 2001 -: 40 :- any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry".
In Ext.A3 it is stated as:
"...
........."
The word " ' means levelling the land for paddy cultivation. Therefore, making the land suitable for cultivation was permitted. Construction of bund (chira) around the kayal land cannot be said to be a reclamation of the land and its conversion into purayidom. It is common knowledge that bund is meant for protection of cultivation effected in the kayal land and that such bund is necessary for storage and pumping out water from the kayal land for the purpose of cultivation. Hence construction of bund at reasonably sufficient width on the sides of the land cannot be understood as a work inconsistent with the purpose for which the land was put in the possession of defendant No.1
22. So far as planting of trees on the bund is concerned, that can only be understood as meant to give further strength to the bund since the cluster of roots of the trees go deep into the bund, hold the S.A. No.361 of 2001 -: 41 :- bund and prevent soil erosion. That also cannot be understood as an act contrary to the purpose for which the land was put in the possession of defendant No.1. Hence, for the said works, defendant No.1 is entitled to get for value of improvements. The decisions relied on by the first appellate court to deny value of improvements cannot apply to the facts of the case. But the contention that the house was constructed for proper cultivation of the kayal land and therefore defendant No.1 is entitled to get compensation for construction of house cannot be accepted. Construction of the house or reclamation of the house plot cannot be said to be part of cultivation.
23. The quantum of compensation for the improvements payable to the contesting defendants will be decided in the final decree proceedings.
24. No other point arose for consideration.
Second appeal is allowed in part in the following lines:
(i) Such of the defendants who claim under defendant No.1 will get compensation from the plaintiff for construction of bund on the sides of the suit properties at reasonably sufficient width and the trees planted on such bund for protection of the cultivation, the quantum of which will be decided in the final decree proceedings. S.A. No.361 of 2001 -: 42 :-
(ii) In all other respects, the judgment and decree under challenge are confirmed.
(iii) Parties shall suffer their respective costs in this appeal.
Civil Miscellaneous Petition Nos.831 of 2001 and 210 and 1420 of 2002 shall stand dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv S.A. No.361 of 2001 -: 43 :- THOMAS P.JOSEPH, J.
=================== S.A. NO.361 OF 2001 =================== J U D G M E N T 13TH MARCH, 2009