KESAVA PILLAI NARAYANA PILLAI Vs. PANKI AMMA LAKSHMI AMMA
LAWS(KER)-1968-5-17
HIGH COURT OF KERALA
Decided on May 23,1968

Kesava Pillai Narayana Pillai Appellant
VERSUS
Panki Amma Lakshmi Amma Respondents

JUDGEMENT

T. C. Raghavan, J. - (1.) WHETHER all the four conditions mentioned in the four classes to section 4A (1) of Act 1 of 1964 added by section 10 of Act 9 of 1967 are to be taken cumulatively or it is enough if any one of the conditions exists is the question to be decided in the second appeal. By the mere reading of the section, I feel satisfied the there is no scope for any doubt regarding the intention of the legislature that all the four conditions must coexist. Because of the absence of the cumulative or conjunctive word 'and' or the disjunctive word 'or' even if it is possible to argue that there may be some doubt regarding the intention of the legislature, that doubt will dissolve and disappear like thin mist at the approach of the bright morning sun if the following things are noted. I f there is doubt regarding the meaning of a section, the heading or the caption of the section can be considered to dissolve that doubt. The caption of section 4A indicates that it applies only to certain mortgagees of waste lands and not to all mortgagees of waste lands. If the clauses have to be construed disjunctively, the condition mentioned in any one of the clauses will be sufficient, which means that if the condition mentioned in clause (a) is present, the mortgagee is to be deemed to be a tenant. The result will be that every mortgagee of land which was waste land at the time of the mortgagee will be a tenant. This goes directly against the caption of the section, which says that the section applies only to 'certain mortgagee' of waste lands. Secondly, as pointed out by Madhavan Nair J. in Naraydhan Asari Raghavan Asari v Velayuclhan Nair Krishnan Nair (1968 K.L.T. 11), if the disjunctive construction is accepted, the section will apply to mortgagees of arablelands as well, which is again against the heading of the section. Therefore, I am in agreement with the view expressed by Madhavan Nair J. in the decision above mentioned and with the view expressed by Raman Nayar J. in Muhammedkutty v Gopaia Panicker (1968 K. L. T. 74) that all the conditions in all the clauses of the section should co -exist. An order of reference to a Division Bench in Velayudhan Nair Vasudevan Naur v Maria (C. R. P. No. 1689 of 1967) by Sadasivan J. has been brought to my notice. The learned Judge seems to have taken a contrary view in that case. In his opinion, the absence of the conjunctive word 'and' or the disjunctive word 'or' creates a doubt (which I do not however entertain) in interpreting the section. Sadasivan J. also observes that it is almost difficult to conceive of a case where all the four conditions are satisfied cumulatively, wherein also I find it difficult to agree with him. The intention of the legislature was to treat mortgages of waste lands in certain cases as tenants or deemed tenants: and it is inconceivable that the legislature would have enacted the section in such wide terms as to bring so many cases within its ambit - all mortgages of waste lands, all mortgages where the mortgage money is less than forty per cent of the market value of the mortgaged land, all mortgages where the mortgagees or the members of their families or tarwads were in possession for thirty years and all mortgages where the mortgagees or members of their families or tarwads have effected substantial improvements!
(2.) THEREFORE , I have no doubt that the clauses have to be construed cumulatively. Both the lower courts have found that the mortgage money in the present case (Rs. 300/ -) must have been more than 40 per cent of the market value of the mortgaged property at the time of the mortgage (1105). The lower courts have come to this conclusion after taking evidence; and I do not find any reason for taking a different view on the matter. The property was admittedly uncultivated property having an extent of only 2 acres and 47 cents. Evidently, the amount of Rs. 300/ - must have been more than 40 per cent of the market value of the property in 1105.
(3.) THE second appeal is consequently dismissed with costs. Since one learned Judge of this Court has entertained some doubt regarding the interpretation of the section, I grant leave to appeal to a Division Bench.;


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