(1.) This is an appeal by the defendant in a suit for redemption of immovable property in the possession of the defendant as mortgagee. The Trial Court decreed the suit on 12-8-1965. There was an appeal by the defendant; and it was dismissed on 12-1-1967. On 20-7-1967, the decree holder filed an execution petition for getting possession of the property from the defendant with mesne profits, on deposit of the mortgage amount and value of improvements. The Kerala Stay of Eviction Proceedings Act 9 of 1967, passed by the Kerala Legislature, came into force on 30-7-1967. This Act shall cease to have effect on 31-12-1968. S.4 of the Act gave some protection to tenants and Kudikidappukars from eviction. It reads as follows: -
"4. Stay of eviction proceedings. Notwithstanding anything to the contrary contained in any other law, or in any contract, custom or usage, or in any judgment, decree or order of any court or Land Tribunal, with effect on and from the commencement of this Act, no suit or application or other proceedings for -
(a) eviction of a tenant from his holding or part thereof or eviction or shifting of a kudikidappukaran from his kudikidappu; or
(b) resumption of a holding or part thereof from a tenant,
shall lie in any court or Land Tribunal, and all suits, applications, proceedings in execution of decrees or orders and other proceedings pending in courts or Land Tribunals at such commencement for such eviction, shifting or resumption shall be stayed:
Provided that nothing in this section shall be deemed to affect the operation of S.14 of the Kerala Land Reforms Act, 1963 (I of 1964)."
S.10 of the Act made certain amendments to the Kerala Land Reforms Act, 1963. One of the amendments was to insert S.4A after S.4 in the Land Reforms Act. S.4A reads as follows:
"4A. Certain mortgagees of waste lands 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 immovable property shall be deemed to be a tenant, if-
(a) the property comprised in the mortgage was waste :land at the time of mortgage.
Explanation.- For the purposes of this clause, a land shall be deemed to be waste land notwithstanding the existence thereon of scattered trees;
(b) the mortgage money was less than forty per cent of the market value of the land at the time of mortgage;
(c) he was by himself or through any member of his family or tarwad holding the property comprised in the mortgage for a period of not less than thirty years before the commencement of the Kerala Stay of Eviction Proceedings Act, 1967;
(d) he or any member of his family or tarwad effected substantial improvements on the property comprised in the mortgage.
(2) The mortgage money or any portion thereof may, at the option of the mortgagor, be treated as security for rent and he shall return the mortgage money or any portion thereof which he does not elect to treat as security for rent to the tenant within six months from the commencement of the Kerala Stay of Eviction Proceedings Act, 1967."
"Tenant" is defined in S.2(57) of the Land Reforms Act. This was also amended by the Stay of Eviction Proceedings Act, with the result that "tenant" includes also a person who is deemed to be a "tenant" under S.4, 4A, 5, 6, 6A and 7 to 10. Under S.13 of the Land Reforms Act, even such a tenant is entitled to fixity of tenure, subject to certain provisions contained therein. The result of the aforesaid statutory provisions is that a mortgagee with possession of immovable property falling within the ambit of S.4A of the Land Reforms Act would not be liable for eviction by virtue of S 4 of the Stay of Eviction Proceedings Act; and he would also be entitled to fixity of tenure by virtue of S.13 of the Land Reforms Act, notwithstanding a decree for redemption against him. The appellant, therefore, filed an objection to the execution of the decree by the respondent, stating that he fell within the ambit of S.4A of the Land Reforms Act.
(2.) It was not in dispute in the execution court that a mortgagee with possession of immovable property would fall within the ambit of S.4A of the Land Reforms Act only if he satisfies all the four conditions mentioned therein. The execution court took evidence regarding the market value of the property at the time of the mortgage, and it held that the mortgage money was not less than forty per cent of the said market value Accordingly, it dismissed the appellant's objection on the ground that he did not satisfy clause (b) of S.4A(1). He filed an appeal in the District Court, Kottayam. In that court also, it was not disputed that all the four conditions mentioned in S.4A(1) should be satisfied for getting the benefit of that provision. The learned Additional District Judge held that the appellant failed to show that the property was waste land at the time of the mortgage; and he also affirmed the finding of the execution court that the mortgage amount was not less than forty per cent of the market value of the property at the time of the mortgage. In the result, he dismissed the appeal. The appellant therefore filed a second appeal to this Court; and he contended that the four conditions mentioned in S.4A(1) ate not cumulative, and that a person satisfying any one of the said conditions would be entitled to the benefit of S.4A. Obviously, he would satisfy the requirements of clauses (c) and (d) of S.4A(1); and he therefore, claimed that the decree for redemption was not executable against him. Our learned brother, Raghavan J. rejected the above contention, and dismissed the Second Appeal. The appellant filed the present appeal before a Division Bench of this Court.
(3.) The question arising for decision in this appeal first came for decision before Raman Nayar, J. in Mohammedkutty v. Gopala Panicker 1968 KLT 74 . His Lordship felt no doubt that the conditions in clauses (a) to (d) of S.4A(1) have to be cumulatively satisfied for a person to claim the benefit thereof. This question was again raised before Madhavan Nair, J. in Narayanan Asari Raghavan Asari v. Velayudhan Nair Krishnan Nair 1968 KLT 11 . There is an elaborate discussion of this question in this case, though the decision of Raman Nayar, J. does not appear to have been brought to the notice of the learned Judge. The whole argument in support of the contention that clauses (a) to (d) in S.4A(1) of the Land Reforms Act are disjunctive is based on the absence of the conjunctive word "and" between clauses (c) and (d). The section has got a heading which shows that it deals with certain mortgagees of waste lands. But it was contended that it was not open to construe the section in the light of its heading. Madhavan Nair, J. rejected this contention, and referred to the decision of the Supreme Court in Bhinka v. Charan Singh AIR 1959 SC 960 in support of his view. In that case, the Supreme Court quoted with approval the following statement of law from Maxwell on Interpretation of Statutes 10th Edition page 50.
"The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words."
And it said:
"If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt "
After referring to the above decision, Madhavan Nair. J. dealt with S.4A of the Land Reforms Act, and stated as follows:
"Here, the heading to the Section is "Certain mortgagees of waste lands to be deemed tenants". Who those certain mortgagees are is determined by the conditions enumerated in the Section. If those conditions are alternatives, condition (a) "the property comprised in the mortgage was waste land at the time of the mortgage" would make every mortgage of a waste land a tenure within the purview of the Section. The heading shows that the Section is not to apply to all but only to certain (some) mortgagees of waste lands. The other three conditions mentioned in the Section do not refer to the mortgaged land being a waste land, and would therefore apply to all mortgages of landed property. If the conditions mentioned in the Section are alternatives, the Section would make very many mortgagees of arable lands and building sites tenants quite inconsistently with the heading of the section which limits the applicability of the section to 'certain mortgagees of waste lands only. It is clear therefore that if the four conditions enumerated in the section are read as cumulative the Section would be consistent with its heading, and if they are read as alternatives the heading would be inconsistent with the Section and meaningless. The ambiguity, arising from the absence of a conjunctive or disjunctive word between the clauses, must then be resolved in the light of consistency with the heading of the Section. Counsel pointed out that in the subsequent Section, S.6 of the Land Reforms Act, the conjunction 'and' has been used to correlate the several conditions mentioned therein; but that, in my opinion, would not imply that the conjunction proper in S.4A is 'or' and not 'and'."
With great respect, we concur with the above view and the reasons stated in support of it.;