11 September 1996
Supreme Court


Bench: MAJMUDAR S.B. (J)
Case number: C.A. No.-000868-000869 / 1980
Diary number: 63110 / 1980






DATE OF JUDGMENT:       11/09/1996


CITATION:  JT 1996 (8)   107



JUDGMENT:                       J U D G M E N T      S.B. Majmudar, J.      Both these  appeals by special leave challenge judgment of the  High Court  of Kerala  at Ernakulam  rendered in two Revision  Applications   moved  by  two  different  sets  of defendants/judgment-debtors who  were  parties  to  Original Civil Suit  No.22 of  1946 of the Sub Court, Manjeri and who were sought  to be  evicted from  the suit  property by  the decree-holder in  one and the same Execution Petition No.543 of 1962. Two separate Revision Applications came to be filed in the High Court raising identical contentions by these two sats of  contesting defendants  because they had lost in two separate appeals filed by them against the Executing Court’s order  before  the  Sub-Court  at  Manjeri.  In  both  these revision  applications   the  appellants   raised  identical contentions which  were repelled  by the High Court and that is how  they are  before this Court in these two appeals. As identical question  arises for our consideration the appeals were heard together and are being disposed of by this common judgment.      A short  point arises  for our  consideration in  these appeals. The  appellants contend  that they  are entitled to the benefit  of Section  4A of  the Kerala Land Reforms Act, Act I  of 1964  as amended  by Act  35 of  1969 (hereinafter referred to  as ’the  Act’). The  said  provision  seeks  to confer  the  status  of  deemed  tenancy  on  mortgagees  in possession  under   circumstances  mentioned   in  the  said Section. The  appellants who  were erstwhile  mortgagees  in possession of  the suit land contend that despite the decree for redemption  passed by  the Civil  Court had become final against them,  even during  execution proceedings  they  are entitled to  get the  benefit of  Section  4A  of  the  Act. Therefore, their  possession should  not be  disturbed.  The Executing Court  as well as the Appellate Court and also the Revisional Court have negatived this common contention.      In  order   to  appreciate   the   grievance   of   the



appellants/judgment-debtors centering  round  the  aforesaid provision a few relevant facts may be noted at the outset.      The suit  land was mortgaged by predecessor-in-interest of the  respondent decree-holder  with  the  predecessor-in- interest of  the appellants.  The predecessor-in-interest of the respondent  filed Original  Suit No.212  of 1946  in the Munsif’s  Court  at  Manjeri  for  redemption  of  the  suit usefructuary mortgage  in favour of the appellants and other defendants. In  all there were 83 defendants who represented the mortgagees in possession. Various defences raised by the defendants were  negatived and  ultimately the  Trial  Court decreed the suit except as regards a part of the property in possession of  81st defendant.  The  dissatisfied  plaintiff filed an  appeal  being  A.S.  No.164  of  1989  before  the Appellate Court  against the 81st defendant against whom the suit was  dismissed by  the Trial  Court. The  remaining  82 defendants do  not appear to have challenged the said decree of the  Trial Court against them. The Appellate Court by its order dated  12th March  1956  allowed  the  appeal  of  the plaintiff against 81st defendant and held that property held by 81st  defendant was  also included  in the  mortgage deed Ext.A1 dated  15.12.1896. 81st  defendant carried the matter in Civil  Appeal before  the High  Court being Second Appeal 163 of  1956 which  also came  to be  dismissed on 10th June 1960. Thus  by that  date the  decree for  redemption of the suit mortgage  against all  the 83  defendants became final, Thereafter   the    respondent   plaintiff-mortgagor   filed Execution Petition No.543 of 1962 for recovery of possession of the property from the respective judgment debtors. During the  pendency  of  the  execution  proceedings  Kerala  Land Reforms Act  came into  force from  1st April  1964. The Act created certain  deemed  tenancies  and  granted  fixity  of tenure to  those deemed tenants. This Act was amended by Act 35 of 1969 by Which Section 4A, with which we are concerned, was brought  on the  Statute Book with effect from 1.1.1970. The appellants  contended before  the Executing  Court  that they were  entitled  to  the  benefit  of  Section  4A  and, therefore, they  could not be evicted from the suit property in their possession as they had become deemed tenants of  the lands occupied by them. The Executing Court, as noted above, rejected these contentions and that decision which has  been upheld by Appellate Court and the Revisional Court is  the subject-matter of challenge before us, Section 4A on  which strong  reliance is  placed by  learned  senior counsel for appellants] reads as under :      "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 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



    (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 deened to be a tenant if he, or,      where he  is a  member  of  family,      such family  was holding  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      mortgage 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; and      (ii) the  mortgagee or  lessee  has      effected  substantial  improvements      on   such    land    before    such      commencement.      Explanation I.- For the purposes of      this sub-section,  in computing the      period of  continuous possession or      occupation by  a lessee, the period      during which  the mortgagee  was in      possession or  occupation,  as  the      case may be shall alsobe taken into      account.      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      predecessor-in-interest          or      predecessors-in-interest   of   the      mortgagee or  lessee  was  or  were      holding the  property shall also be      taken into account.      Explanation III.-  For the purposes      of clause (b),-      (1)  "mortgagee" or  "lessee" shall      include  a  predecessor-in-interest      of the  mortgagee or lessee, as the      case may be:      (11) "building" includes a hut,      Explanation IV.  - In computing the      period of  twenty years referred to      in clause  (b), occupation  of  the      building  by   any  member  of  the      family of  the mortgagee  or lessee      for residential  purpose  shall  be



    deemed  to  be  occupation  by  the      mortgagee or  lessee, as  the  case      may be, for such purpose.      Explanation V.-  In calculating the      extent of land held by a family for      the purposes of clause (b), all the      lands  held   individually  by  the      members of the family or jointly by      some or  all of the members of such      family shall  be deemed  to be held      by the family,      Explanation VI  - for  the purposes      of sub-clause (ii) of clause (c),      (i)  Improvements   made   by   the      mortgagee shall  be  deemed  to  be      lmprovements madeby the lessee;      (ii) "mortgagee" or  "lessee" shall      lnclude  a  predecessor-in-interest      of the  mortgagee or lessee, as the      case may be      Explanation VII, - for the purposes      of clause (c)-      (i)  improvements shall  be  deemed      to be  substantial improvements  if      the value  thereof on  the date  of      commencement  of  the  Kerala  Land      Reforms (Amendment)  Act  1969,  is      not less  than twenty five per cent      of the  market value of the land on      that date;      (ii) a  land shall  be deemed to be      waste  land   notwithstanding   the      existence   of    scattered   trees      thereon.      (2)  Nothing   contained  in   sub-      section (1) shall apply to a lessee      if the  lease  was  granted  on  or      after the commencement of Act."      A mere  look at  the said provision shows that the said Section will operate notwithsfanding any judgment, decree or order of  any  court  against  the  concerned  morgtagee  in possession if the following conditions are satisfied : 1.   He must be a mortgagee in possession of the land on the date  of the  coming into force of that Section which is not retrospective  in nature  meaning thereby the person who wants the  benefit of  Section 4A  must be  a  mortgagee  in possession of land on 1.1.1970. As we are not concerned with other types of excluded lands we need not refer to them. 2.   Such a morgtagee in possession on 1.1.1970 must satisfy the further condition that he was holding the land comprised in the mortgage for a continuous period in the period of not less than fifty years immediately preceding the commencement of the  Kerala Land  Reforms (Amendment)  Act, 1969  meaning thereby  for   a  period   of  not  less  than  fifty  years immediately before  1.1.1970. As  we are  not concerned with clause (b)  and (c)  in the  present proceedings we need not dilate thereon.      When we  turn to  the facts  of the  present cases.  it becomes clear  that none of the aforesaid two conditions has been satisfied  by the  appellants.  It  is  true  that  the appellants  were  mortgagees  in  possession  through  their predecessor-in-interest since 15.12.1896 and can get benefit of Explanation  II  and,  therefore,  years  back  they  had completed more than fifty years of possession as mortgagees. It is  also true  that decree  for redemption  of  the  suit



mortgage against  them had become final and during execution proceedings Section 4A had come into force. However there is a further  fact which  stares in the face of the appellants. In  the  execution  proceedings  themselves  the  respondent decreeholder mortgagor  deposited the  mortgage  amount  and value of  improvements on  14th March  1969 and consequently the Executing  Court ordered  delivery of  property on  such payment to  the decree-holder. Once that happened the status of the  appellants as  erstwhile  mortgagees  in  possession underwent a  metamorphosis and  thereafter they continued to remain in  possession only  as  judgment  debtors  illegally sticking to  the land.  The relationship  of  mortgagor  and mortgagee between  the parties  got snapped.  It is now well settled that  despite the  decree for redemption which might have been  passed by  a competent court and which might have become final  till the  mortgage amount  is deposited by the mortgagor the  relationship of  mortgagor and mortgagee does not come  to an end. Conversely once the amount is deposited by the  mortgagor decree-holder  even during  the  execution proceedings  the   relationship  between   the  parties   as mortgagor and  mortgagee ceases  and thereafter  till actual delivery of possession the erstwhile mortgagee in possession remains merely  as judgmentdebtor  in illegal possession. In the case  of Prithi  Nath Singh  and ors.  v. Suraj Ahir and ors. AIR  1963 SC  1041 it  has been held by Raghubar Dayal, J., speaking  for the  two member  Bench of  this Court that when the  mortgage money  is paid  by the  mortgagor to  the mortgagee, there  does not  remain any  debt  due  from  the mortgagor to  the mortgagee, and therefore, the mortgage can no longer  continue after  the mortgage money has been paid. Further, the  definition  of  usufructuary  mortgage  itself leads to  the conclusion  that the  authority given  to  the mortgagee to  remain in possession of the mortgaged property ceases when  the mortgage  money has  been paid up. When the mortgage  money   has  been   paid  up,   no   question   of appropriating  the  rents  and  profits  accruing  from  the property towards  interest or  mortgage money  can arise. If the mortgage  money has  been received  by the mortgagee and thereafter he  refuses to perform the acts which he is bound to do under 5.60, the mortgagor can enforce his right to get back the  mortgage document, the possession of the mortgaged property and  the  reconveyance  of  that  property  through court.      The same  view was  reiterated by  a later  decision of this Court  in the case of Parameswaran Govindan v. Krishnan Bhaskaran &  Ors. 1993  Supp.(1) SCC  572. K. Ramaswamy, J., speaking for  the two  member  Bench  of  this  Court  while considering the  scope and  ambit of Section 4A of this very Act held  that from  the date  of deposit  of  the  decretal amount the  possession of  the morgtagee respondent would be unlawful. Section  4-A of  the Land  Reforms Act  would  not denude the  right to  re-possession of  the mortgagor  under Section 60 of the Transfer of Property Act without assent of the President  of lndia. Section 4-A of the Land Reforms Act which engrafts a non-obstante clause is of little assistance to the  respondent, as  he did  not  complete  50  years  of continuous possession  on the  date when the Amending Act 35 of 1969  came into  force. It  was further  observed that  a conjoint reading  of Section  60, Section  76(h)  read  with Section 83 of Transfer of Property Act would amplify that on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. There does not remain any debt from the mortgagor to the mortgagee and, therefore, the mortgage can  no longer continue after the mortgage money is paid. On the payment of mortgage money or deposit thereof in



the court by the mortgagor, the mortgage comes to an end and the right  of the  mortgagee to remain in possession is also coterminous. Thereafter, the mortgagee continues in unlawful possession.      In view  of this  settled legal  position, therefore it must be  held that  the appellants’  status as mortgagees in possession came  to an  end on  14th  march  1969  when  the mortgage money was deposited by the respondent decree-holder in execution  proceedings. Thereafter appellants’ possession became unlawful and they were liable to be forthwith evicted in execution  of the  decree  for  redemption  which  become final. Consequently  it must  be held  that the  very  first condition for applicability of Section 4A of the Act was not satisfied by  the  appellants.  To  recapitulate  the  first condition for  applicability  of  Section  4A  is  that  the concerned person  who seeks  the benefit  of Section  4A for getting status of deemed tenant must be in possession of the concerned land  as a  mortgagee on  1.1,1970 when Section 4A came into  force. Almost  9 months  prior  to  1.1,1970  the appellants had  ceased to  be mortgagees  in possession  and were only  in unlawful possession of the decretal land. Thus the very first condition for applicability of Section 4A was not fulfilled by the appellants. Once this first condition was not  satisfied, Section  4A went  out of picture for the appellants. Even  that apart  the second  condition was also not satisfied  for applicability  of  Section  4A  in  their favour. They  cannot get  the benefit  of Section  4A unless even the second condition is satisfied namely that they must be in  continuous possession as mortgagees in possession for 50 years and more, immediately preceding the commencement of Section 4A  meaning  thereby  that  prior  to  1.1.1970  for continuous 50 years backwards without a break they must have continued  to   remain  in   possession  as   mortgagees  in possession. The  words ’50  years immediately  preceding the commencement  of   the  Amendment  Act  at  1969’  are  very significant. In  order that continuous period of fifty years can start  immediately preceding  the coming  into force  of Section 4A it must start from a day earlier, i.e., from 31st December 1969 backwards upto a period of fifty years meaning thereby stretching back till 31st December 1919.      Thus even  though the  mortgagee in  possession may  be holding the  possession of the land as mortgagee on 1.1.1970 he must  further show that he had remained as a mortgagee in possession by himself or through his predecessor in interest continuously at  least from  31st December  1919  till  31st December 1969 without any break. On the facts of the present case it cannot be disputed and it is not in dispute that the aapellants  were   not  in   possession  as   mortgagees  in possession  for  this  whole  period  but  their  status  as mortgagees  in  possession  had  come  to  an  end  and  the relationship of  mortgagor and  mortgagee  had  got  snapped between the parties from 14th March 1969 onwards. Thus for a period of  almost 9  months prior to 1.1.1970 the appellants were not  in possession  as mortgagees. On the contrary from 14th March  1969 onwards  their possession  of the suit land was  unlawful.   Thus  even  the  second  condition  is  not satisfied for applicability of Section 4A.      Having realised this difficulty in the way of the appellants  learned   senior  counsel   for  the  appellants submitted  that   there  is   a  non-obstante   clause   for applicability of  Section 4A  and consequently despite there being a  judgment, decree  or order  against them  which has become final  they are  entitled to  get the benefit of this Section. We  fail to  appreciate how  the said  non-obstante clause can  be of  any assistance  to the  appellants on the



facts of the present cases. All that the non-obstante clause means to  convey  is  to  the  effect  that  even  though  a mortgagee in  possession might  have suffered  a judgment or decree against  him which might have become final so long as his status  as mortgagee  in possession  has  survived  even pending  execution  proceedings  and  by  that  time  if  on 1.1.1970 the Section gets attracted then such a mortgagee in possession even  though having an adverse judgment or decree against him  can get  the  benefit  of  Section  4A  if  the relevant conditions of said Section are fulfilled by him and in such  an eventuality  merely because  such a mortgagee in possession is  covered by the sweep of any final judgment or decree for  redemption the same will not come in his way. On the facts  of the  present cases,  however, as we have seen, not only  the appellants  were covered by a final decree for redemption but  they had  lost the  status of  mortgagees in possession almost 9 months prior to the coming into force of Section 4A.  Therefore, on  the date  on which  the  Section operated they  were  no  longer  mortgagees  in  possession. Consequently  the   non-obstante  clause  which  would  have otherwise helped them if they had continued as mortgagees in possession on  1.1.1970 does not avail the appellants on the facts of  the present  cases. The learned senior counsel for the  appellants   next  contended   that  in  any  case  the appellants had  remained  in  possession  as  mortgagees  by themselves and  through their  predecessors  for  more  than fifty years,  that the  mortgage was of 1896 and even by the date the  suit was filed, fifty years’ period was over. That may be  so. However the requirement of the second condition, as we  have shown  earlier, is  that  such  a  mortgagee  in possession who  wants to  avail of the benefit of Section 4A must show  that he  continued in possession as mortgagee for fifty years  or more  continuously at  least from 31.12.1919 upto  31.12.1969   which  was   immediately  preceding   the commencement  of  Section  4A  with  effect  from  1.1.1970. Learned senior  counsel in  this connection  submitted  that words ’immediately preceding the commencement’ may be given more expanded  meaning as this is a beneficial provision. It is difficult  to agree.  In  the  first  place  the  Section creates a legal fiction. Therefore, the express words of the Section have  to be  given their  full meaning  and play  in order to  find out whether the legal fiction contemplated by this express  provision of  the Statute has arisen or not in the facts  of the  case; Rule  of construction of provisions creating legal  fictions is  well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for  what   purpose  the   fiction  is  created,  and  after ascertaining this,  the Court  is to  assume all those facts and  consequences   which  are   incidental  or   inevitable corollaries to  the giving  effect to the fiction. But in so construing the  fiction it  is not to be extended beyond the purpose for  which it  is created  or beyond the language of the section  by which  it is  created.  It  cannot  also  be extended by importing another fiction. In this connection we may profitably  refer to two decisions of this Court. In the case of  Commissioner of  Income  Tax,  Bombay  City  II  v. Shakunatala &  AIR 1966  SC 719  a three-Judge Bench of this Court speaking  through  S.K.  Das,J.,  made  the  following pertinent observation in paragraph 8 of the Report :      "The  question   here  is   one  of      interpretation   only    and   that      interpretation must be based on the      terms of  the section.  The fiction      enacted by  the Legislature must be      restricted by theplain terms of the



    statute."      In another  case reported  in the  same volume  at page 870,  namely,     Commissioner  of    Income-tax  (Central), Calcutta v,  Moon Mills  Ltd. AIR 1966 SC 870 another three- Judge Bench  of this  Court speaking  through Subha  Rao,J., observed in  para 8  of the  Report in  connection with  the provision creating such legal fictions as under :      "The fiction is an indivisible one.      It cannot  be enlarged by importing      another fiction.. "      In the  present cases  fiction created by Section 4A is circumscribed by  its express  words. Before  such a  deemed tenancy  can  arise  it  must  be  shown  by  the  concerned beneficiary of the said provision that he was a mortgagee in possession for  a continuous  period of  not less than fifty years immediately  preceding the  commencement of  the  said Section. The  words ’immediately preceding the commencement’ must necessarily  be given  their ordinary and full meaning. They necessarily  point out  the legislative intent that the fiction is  created only  for covering  such type  of  cases where the  mortgagee in  possession not  only exists  on the land as mortgagee on 1.1.1970 but, also continuously existed as such  for a  period backward  stretching upto at least 50 years in  past from 31.12.1969 which was the day immediately preceding  such  commencement  Argument  of  learned  senior counsel was  that if  the  words  ’50  years  of  continuous possession as mortgagee at any time prior to the coming into force of  the amending  Act’ are  read  in  the  Section  by implication he  would qualify for the benefit of Section 4A, Such a contention would have stood the test if the Section would have been worded differently namely, as follows :      "such mortgagee  was in  continuous      possession for a period of not less      than 50  years prior  to the coming      into force of the Amending Act."      Such words  are not  found  in  the  Section.  In  fact learned senior  counsel for  the appellants wants us to read the  Section   after  omitting   the  word  ’immediately  ’, advisedly  prefixed   by  the   legislature  to   the   word ’preceding’. Such  an exercise  is not  permissible for  the Court, We  have to  keep in view that as per the Section the 50 years’  period is  circumscribed by  further  requirement that such  continuous period  of occupation  as mortgagee in possession must  exist without  break or any hiatus till the date of  coming into force of the Act and must consist of at least 50  years continuous  occupation immediately  prior to the coming  into force  of Section  4A, as such mortgagee in possession. However beneficial may be the scope and ambit of the legal  fiction created by the legislature while enacting Section 4A  such fiction  can arise  only when  the  express language of the Section laying down the conditions precedent for raising  of such  a fiction  is  complied  with  by  the concerned mortgagee  in possession  seeking the  benefit  of such a deeming fiction. Such a fiction cannot be extended by the Court  on analogy  or by  addition or deleting words not contemplated by the legislature.      As a  result  of  the  aforesaid  discussion  it  must, therefore be  held that the appellants have failed to fulfil both the  conditions precedent  for applicability of Section 4A and  for getting  the benefit  of deemed  fiction arising therefrom. Consequently the High Court as well as the courts below were  perfectly justified in not extending the benefit of Section  4A  to  the  appellants.  In  the  result  these appellants,  fail  and  are  dismissed.  On  the  facts  and circumstances of  the cases  there will  be no  order as  to