- (1.)This half a century old litigation has a chequered career, and the members of a tarwad are kept out of possession of the property which was mortgaged by their karnavan to his children for an amount of Rs. 50/-.
(2.)Defendants 1 and 2 are the appellants. They are entitled to 15/30 and 6/30 shares in the plaint schedule property which consists of two items of properties, item No. 1 being a nilam having an extent of 1.03 acres and item No. 2 a paramba having an extent of 1.34 acres. In a karar in the tarwad evidenced by Ext. A dated 27-6-1091 M. E. these two items of properties were set apart to the karanavan Govindan Nair for his enjoyment for life. It was provided in the document that for the medical expenses during his lifetime, he is entitled to raise an amount up to Rs. 50/- either by a possessory mortgage or by a simple mortgage, if the other members do not contribute towards the same, Thereafter the tarwad was partitioned into four branches on 20-7-1095 M. E. Under Ext. B possessory mortgage dated 24-8-1101 M. E. the karnavan Govindan Nair executed a mortgage in favour of his children for Rs. 50/-. The total rent of the properties was fixed at 30 paras of paddy and Rs. 2/-, out of which 8 paras of paddy and Rs. 1/- was to be appropriated towards interest; and the residual rent payable by the mortgagee was 23 paras of paddy and Rs. 1/- per annum. Thereafter by an assignment dated 19-12-1119 M. E. the Ist defendant obtained the rights of defendants 2 to 21 and be filed a suit O. S. No. 85 of 1120 M. E. before the Irinjalakuda Munsiff's Court for redemption of the mortgage. A decree for redemption was passed on 28-1-1122 ME. That decree was ultimately confirmed by this Court in S. A. No. 6 of 1124 and it was held that the plaintiff is entitled to past profits of 22 paras of paddy plus Re. 1/- from 30-7-1112 M. E. till the date of suit in 1120 M. E. and after the deposit of the mortgage money and the value of improvements, the profits were fixed at 72 paras plus Rs. 40/-. At that juncture the 1st respondent herein the 1st plaintiff got an assignment of the rights of plaintiffs 2 to 7 in the properties and he filed the suit for partition by metes and bounds claiming 16/30 shares for all the plaintiffs together including himself In the meantime, the 1st plaintiff became the absolute owner of the entire mortgage right as well. The 1st defendant herein also claimed share in the property by virtue of his purchase of the rights of some of the members. On 27-8-1955 a preliminary decree was passed in this suit by which the 1st plaintiff was declared entitled to 9/30 shares, 1st defendant to 15/30 shares and the thavazhi of the 18th defendant to 6/30 shares. It was further provided that the accounting between the parties in regard to the mortgage, profits etc. will be worked out in the decree for redemption in O. S. No. 85 of 1120. In the meanwhile, the execution petition filed in O. S.85 of 1129 was held to be barred by limitation and ultimately that finding was confirmed by this Court on 6-2-1962 in S. A. No. 125 of 1958. In the light of the above finding, the application for passing a final decree M. P. 777/1961 was dismissed by the Trial Court against which the 1st appellant filed C. R. P. No. 914 of 1962 before this Court. By order dated 6-3-1964 this Court held that the rights of parties can be worked out in this suit itself by passing a second preliminary decree. This Court adopted that course in order to avoid multiplicity of suits. Accordingly the dismissal of the final decree application was set aside and the lower court was directed to pass a second preliminary decree as indicated in the order. Thereafter, the matter came up before the Trial Court and on 21-9-1964 an agreed preliminary decree was passed which provided:
"(1) The partible item will be divided by metes and bounds and the 1st plaintiff will be allotted 9/30 shares, the 1st defendant 15/30 shares and the thavazhi of the 18th defendant 6/30 shares.

(2) Since the mortgage right has become vested in the 1st plaintiff, the portion where the improvements effected by the mortgagee are in a maximum, will, as far as possible, be allotted to the 1st plaintiff.

If any improvement effected by the mortgagee is found in the properties allotted to the 1st defendant and the sakha of the 18th defendant, that will be valued and appropriate directions will be given for its payment in the final decree.

(3) The value of improvements, mesne profits, purappad and all other items of accounting between the sharers, cosharers and as mortgagor and mortgagee, will be settled at the time of the final decree.

(4) Any of the sharers may move this court for the issue of a commission to effect the division in the manner indicated above.

(5) All other questions, if any, remaining for adjudication, will be considered at the time of the final decree."

Thereafter, on 31-3-1965, I.A. No. 101 of 1965 was filed by the 1st defendant to pass a final decree in terms of the supplementary preliminary decree dated 21-9-1964. On 15-7-1965 an objection was filed by the plaintiff wherein there was no objection for partitioning the properties. A commission was sent from the court to divide the properties and accordingly the commissioner has submitted his report and accounts. While the matter was thus pending, the 1st plaintiff filed I. A. 161/1970 claiming that he is a deemed tenant under S.5 of the Kerala Land Reforms Act and praying that a final decree be passed reserving the tenancy right in his favour. The 1st defendant in the suit filed an objection contending that the 1st plaintiff has become a part owner of the properties as well, that the mortgage was not subsisting on the date of commencement of Act I of 1964 and that a consent decree was passed after 1-4-1964 agreeing for a partition by metes and bounds and accordingly the 1st plaintiff is not entitled to the benefits under S.5 of the Kerala Land Reforms Act. By order dated 28th August, 1970, the Trial Court held that the mortgage in question comes within the ambit of S.5 of Act I of 1964 as amended by Act 35 of 1969 and accordingly the equity of redemption alone can be divided in the final decree proceedings as the 1st plaintiff is having fixity of tenure on the basis that he is a deemed tenant. It was further directed that a final decree will be passed in accordance with this order. Accordingly on 21st August, 1976 a final decree was passed in terms thereof. The appellants filed this appeal challenging the final decree passed in the case including the question as to whether the 1st plaintiff is entitled to the benefit of S.5 of Act I of 1964. By judgment dated 24th October, 1984 a learned Single Judge of this Court dismissed the appeal against which the appellants filed A. F. A. No. 1 of 1985. The Division Bench by judgment dated 28th May, 1991 set aside the judgment of the learned Single Judge and remanded the matter to the Single Bench for considering the two questions mentioned in the judgment. When it came before a learned Single Judge after remand, it was felt that important questions are arising for decision in the case and the learned Single Judge referred the matter to a Division Bench and it was accordingly heard by us.

(3.)Counsel for the appellants contended that the view taken by the court below that the 1st plaintiff is entitled to fixity of tenure being a deemed tenant under S.5 of the Kerala Land Reforms Act is erroneous. He further contended that in order to attract S.5 of the Kerala Land Reforms Act a person must be in possession of a property as a mortgagee as on 1-4-1964 on which date the Act came into force and in the facts and circumstances of the case the 1st plaintiff was not a mortgagee in possession as on that date. In support of his contention he raised the following four points for consideration: -
(1) The 1st plaintiff who represented the entirety of the mortgage right became part owner of the equity of redemption to the extent of 9/30 shares and thereupon the mortgage became disintegrated and the provision contained in S.5 cannot apply to such truncated mortgages. --

(2) As on 1-4-1964 the mortgage debt due to the mortgagee had become extinguished by mutual adjustment of the purappad payable by the mortgagee towards the mortgage money and his possession as on 1-4-1964 was not that of a mortgagee.

(3) A preliminary decree was passed in the case on 21-9-1964 by consent of parties and the 1st plaintiff having agreed to pass such a consent decree after 1-4-1964 is barred from raising the contention that he is entitled to the benefits of S.5 of the Kerala Land Reforms Act at a later stage of the same suit.

(4) The mortgage which is to be deemed as a lease being by a person with limited interest, it is exempted from Chapter II of the Kerala Land Reforms Act by S.3(1)(vi).

We shall consider these points one by one.

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