SANKARAN NAMBOORIPAD Vs. MATHAN
LAWS(KER)-1963-12-10
HIGH COURT OF KERALA
Decided on December 17,1963

SANKARAN NAMBOORIPAD Appellant
VERSUS
MATHAN Respondents


Referred Judgements :-

RAMJIBHAI VIRPAL SHAH VS. GORDHANDAS MAGANLAL BHAGAT [REFERRED TO]


JUDGEMENT

- (1.)THE decree in execution of which this appeal arises was passed on compromise in a suit for the redemption of a mortgage of the year 1073. THE first defendant in the suit represented the mortgage interest and defendants 2 to 5 were impleaded as being in possession under him. At the time the decree was passed, part of the mortgaged property, about 94 odd parahs in extent, was paddy land and the rest consisted of Chiras which were held in distinct plots by defendants 1 and 3 to 5. Pursuant to the compromise, the first defendant continued to be in possession of the paddy land, but he surrendered the portion of the Chira in his possession. When in due course the plaintiff took out execution for delivery of possession of the paddy land, he was met by an objection by the first defendant under the Kerala Stay of Eviction Proceedings Act, 1957 (Act 1 of 1957), that he was a lessee thereof under the provisions of the decree and that he could not be evicted. This objection prevailed with the Subordinate Judge, and the plaintiff has appealed against his decision. Defendants 3 to 5 are still in possession of the respective portions of the Chiras, but no question arises with respect to them in the present proceedings.
(2.)THE relevant provisions of the compromise were the following. A sum of Travancore Rs. 3914 and 8 Ch. which represents the mortgage amount and vettozhivu and which had already been deposited in court, was to be drawn by the first defendant. Of the Chira, the first defendant was in possession of 10 cents. For redeeming that portion of the Chira, nervi or special value of improvements amounting to Rs. 1,500/- was payable, this being in addition to the sum of Rs. 3, 914-Ch. 8 aforesaid. Although this latter sum was to be drawn from court by the first defendant, and he surrendered 10 cents of Chira to the plaintiff, Rs. 1,500/- by way of nervi was not paid to the first defendant. Instead, the first defendant was permitted to continue in possession of the paddy land till the 31st Medom,1131 on his undertaking to pay or deliver by the 30th Medom each year an amount of 425 parahs 21/2 edangazhies of paddy by way of "profits" BZmbw. At the expiry of the period, the paddy land was to be surrendered by the first defendant on receipt of Rs. 1,500/- by way of nervi, the actual provision being In the event of the first defendant's refusal to surrender, the plaintiff might on deposit of Rs. 1,500/-execute the decree and recover possession. On default in the payment of the annual profits for two years as stipulated, the decree for recovery of possession was liable to be executed, notwithstanding the provision for continuance in possession till the 31st Medom,1131. THEre were comparable provisions for the payment of nervi to defendants 3 to 5 and for recovery of the Chiras in their respective possession.
On the above summary, the position was that though the mortgage amount and vettozhivu were deposited and allowed to be drawn by the first defendant, the liability under the mortgage transaction was not discharged or satisfied in full, because nervi which remained to be paid and which partook of the nature of the value of improvements, was part of the redemption price. The specific provision was, that on payment of nervi which remained payable, the property which still continued to be with the first defendant would be surrendered or might be recovered through court as the case may be. In view however of the payment of Rs. 3,914-8 Ch. , an accounting for profits by the first defendant became necessary and this was provided for. Be it noted, that the stipulation was for payment of 425 odd parahs annually as "profits" and not as "rent". This is of great importance.

Nothing had happened under the compromise to change the character of the possession of the paddy land which the first defendant retained with him, from that of a mortgagee to that of a lessee. Under the compromise there was no transfer as such of any right of enjoyment or of any right whatever, the sum of Rs. 1,500/- was not the price for any transfer and was therefore no premium, and the paddy to he paid annually was not rent. So the transaction did not fulfil the definition of a lease under S. 105 of the transfer of Property Act. It is obvious, that there could not have been an intention on the part of the plaintiff to create a lease as such by the compromise. The provisions restrictive of eviction had already come into force by the Holdings (Stay of Execution Proceedings) Act, Act VIII of 1950. The intention of both parties was only to postpone execution so as to enable the first defendant to continue to be in possession for some more time. In ramjibhai Virpal Shah v. Gordhandas Maganlal Bhagat AIR. 1954 Bombay 370, decided by the Bombay High Court Gajendragadkar, J. observed thus: "the scheme of the agreement, the absence of any wards indicating demise as such, the use of the words "mesne profits", liberty left to the defendant to vacate as soon as he liked, coupled with the circumstances under which the contract came to be made, lead to the inference that the document does not evidence the creation of a leasehold right; it only enabled the defendant to remain in possession of the property permissively. . . . Therefore, the lower appellate Court was right in holding that on the expiration of the said period the decree-holder was entitled to execute the decree. "

(3.)IN A. S. 386 of 1963, a somewhat similar case, a division bench of this Court has also taken the same view of the compromise decree. I hold that no lease under the Transfer of Property Act was created as such by the compromise decree. 5. But learned counsel for the first defendant relied also on definition of the word "tenant" occurring in S. 3 clause (26)of the Kerala Tenants & Kudikidappukars Protection Act, Act 7 of 1963. The relevant part of that definition reads as follows: "'tenant' means any person who has paid or has agreed to pay rent or other consideration, for his being allowed by another, to possess and to enjoy the land of the latter and includes-"
It was argued that all the elements of this definition are satisfied in the present case and so the first defendant is a tenant. The short answer to this is, that the above definition which is an inclusive one, does not take in a mortgagee in possession; this is sufficient to exclude him. As I have found that the possession of the 1st defendant still continued to be that of a mortgagee, the definition has no application.

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