- (1.) - This appeal by special leave is against the judgment and order dated April 7, 1976 passed by a learned single Judge of the Kerala High Court in S. A. No. 956 of 1973.
(2.) The parties herein are successors-in-interest of the original set of mortgagors and mortgagees, being plaintiffs-respondents and defendants-appellants respectively. For the sake of convenience we would keep referring to them as mortgagors and mortgagees. It stands established on the record that by means of mortgage deed Exhibit P-1 dated 18-3-1096, (Malayalam year) (1921 of the Gregorian year) the mortgagors mortgaged the suit land in favour of Parameswaran Pillai and his wife Gauri Amma for a total consideration of Fanams 6850/-. Fanam statedly was the currency in the erstwhile Travancore State. Deed Exhibit P-1 embodies an admission that the suit property since the Malayali year 1083 stands mortgaged to Parameswaran Pillai for a sum of Fanams 4750 and adjusting the same at that juncture, the same property was being mortgaged for a sum of Fanams 6850/-, the balance of Fanams 2100/- having been received from Gauri Amma (the added mortgagee). The mortgagors filed a suit for redemption of the mortgage before the Trial Court on 1-1-1969. In the meantime S. 4A(I)(a) of Kerala Land Reforms (Amendment) Act, 1969, (Act 1 of 1964) appearing on the scene with effect from 1-1-1970 gave an ostensible defence to the defendants-mortgagees that they had become deemed tenants and hence possession could not be sought from them on the basis of the mortgage. That provision is set out below: "4A. Certain mortgagees and lessees of mortgagees to be deemed tenants:- 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 a tenant: (a) the mortgagee or lessee as 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..... 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."
(3.) The defence set up by the mortgagees appealed to the Trial Judge, who took the view that a period of fifty years had elapsed, reckoned immediately preceding the amendment of Kerala Land Reforms Act, 1965. The Lower Appellate Court affirmed that view. The High Court, however, upset the view which has given rise to this appeal.;