- (1.) This appeal by special leave arises against the order dated November 17,1977 made in C.R.P. No. 2341 of 1977 of the Kerala High Court which granted the decree that the respondent is a tenant under S.4A of the Kerala Land Reforms Act, 1963 (1 of 1964), for short 'the Act' and is not liable to ejectment pursuant to the decree in O.S. No. 6/64 on the file of the Munsif Magistrate, Attingal. The facts relevant are as under: The appellant is the mortgagor. The respondent is one of the mortgagees/4th defendant. The appellant's suit for redemption of the mortgage was decreed on December 23, 1965 (sic). The decree provides payment of Rs. 500/-, and Rs. 943/9.2 towards improvements as a condition for redemption. On appeal, the appellate Court enhanced the improvements by Rs. 256/8.4. In the execution application filed by the appellant the respondent filed another application under the Kerala Compensation for Tenants Improvements Act, 1958 (Act 29 of 1958), for short 'the Improvements Act' claiming a further sum for improvements. Pending application, the appellant deposited on June 21, 1961 the decretal amount including the sum decreed by the appellate Court. Under the Improvements Act, in 1975 the respondents' application was allowed and total amount of Rs. 4,149.66 paise inclusive of decretal amount was directed to be paid, which became final. Then the respondents filed yet another I.A. No. 2340/ 75 to reopen the decree under S. 132(3) of the Act, contending that he is a tenant under S. 4A of the Act, having been continuously in possession for over 50 years and that, therefore, the decree of eviction cannot be executed against the' respondents, The executing Court dismissed it, but on revision, the High Court declared that the respondent is a 'deemed tenant' under S. 4A. Assailing the legality thereof this appeal has been filed.
(2.) Section 132 is a repealing and saving section under the Act and sub-sec. 3(a) postulates thus: "Notwithstanding the repeal of the enactments mentioned in sub-see. (2), (a) any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which., eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of the this Act." The other sub-sections are not relevant. Hence omitted. Sub-sec. (2) thereto provides that "The following enactments as in force in any part of the State of Kerala are hereby repealed, namely: (i) The Cochin Verumpattamdars Act, VII of 1118. (ii) The Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955. (iii) The Malabar Tenancy Act, 1929. (iv) The Madras Cultivating , Tenants (Payment of Fair Rent) Act, 1956." A bare reading of both sub-sections would demonstrate that, if there is a decree passed in one of the four Acts enumerated in subsee. (2) of S. 132 -and the decree remained unexecuted and pursuant to which possession was not effected, then on the commencement of the Act a tenant or landlord may make an application upon which the decree would be reopened and be disposed of in accordance with the provisions of the Act. Undoubtedly decree in question is only a redemption decree pursuant to which the mortgagor is entitled to possession, on redemption of mortgage, under S. 60 of T.P. Act. Therefore, the very application to reopen the decree itself is misconceived, without, jurisdiction and authority of law. But this question was not gone into by either of the courts. Therefore, we do not propose to allow the appeal on this short ground.
(3.) The controversy is whether the respondent is a tenant under the Act. S. 2(57) of rs the Act defined 'tenant' means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land. A reading would indicate that there should exist jural relationship of landlord and tenant and pursuant to a lease for consideration possession was given and the lessee remained in possession enjoying the land on payment of rent or other consideration. Therefore, the main part of S. 2(57) does not apply to a mortgagor and mortgagee and the mortgagee cannot be treated to be a tenant. But by Amending Act 35 of 1969, S. 4A was introduced on the statute. Admittedly, it is prospective in operation. It reads thus: "Certain mortgagees and lessees of mortgagees 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 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 tenant if- (a) the mortgagee or lessee was 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 Other clauses are not necessary. Hence omitted. It would manifest that the mortgagee in possession of the hypotheca for a continuous period of not less than 50 years' immediately preceding the commencement of the Amending Act 35 of 1969 is deemed to be a tenant under the Act. Admittedly the respondents had not had continuous minimum of 50 years possession immediately preceding Act 35/69 came into force. The mortgage amount of Rs. 500/ - together with the improvements determined in the said appeal were admittedly deposited on June 21, 1961. A conjoint reading of S. 60, S. 76(h) read with S. 83 of Transfer of Property Act ,would amplify that on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. This Court in Prithi Nath Singh v. Suraj Ahir, (1963) 3 SCR 302: (AIR 1963 SC 1041) held that when the mortgage money is paid by the mortgagor to the mortgagee, there does not remain anv debt from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money is paid. Therefore, on the payment of mortgage money or deposited thereof in the Court by the mortgagor, the mortgage comes to an end and the right of the mortgagee to remain in possession also conterminous. Thereafter, the mortgagee continues in unlawful possession.;