HIGH COURT OF KERALA
MOIDEEN,MOIDEEN AND OTHERS
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(1.) Judgment in the above Second Appeal was delivered by a Division Bench of this Court on 27th October, 1970. C. M. P. No. 4525 of 1974 was moved for review of judgment. This was allowed by us yesterday on the ground that the petitioner did not, and could not, earlier have an opportunity of urging his claim for relief under S.7 and 7B of the Kerala Land Reforms Act, Act I of 1964. It is this claim that has been urged before us at the rehearing of the Second Appeal which was proceeded with yesterday, immediately after allowing the application for review.
(2.) The suit out of which the Second Appeal arises was one for redemption of a mortgage and recovery of possession. The 6th defendant in the suit is the appellant in the Second Appeal. The mortgage sought to be redeemed was Ext. B1 dated 18-7-1946. By Ext. B8 dated 10-8-1952 the Ist defendant assigned his mortgage right to the 3rd defendant. The 3rd defendant assigned his rights to the 5th defendant, whose legal representatives are defendants 7 to 9. By Ext. B16 dated 3-11-1952 the 3rd defendant leased the property to the 4th defendant. By that time the suit for redemption of Ext.B1 mortgage had been instituted on 26-6-1952 in a Court, which was eventually found to have no jurisdiction to entertain the suit, and the suit for that reason, was directed to be presented in the proper court. The present suit was accordingly filed only in 1955. After the suit was instituted in the proper court, the 4th defendant assigned his leasehold rights to the 6th defendant by Ext.B127 dated 26-6- 1957. In the suit, the 8th defendant, as the assignee of the rights of the 4th defendant, claimed that he is entitled to fixity of tenure under S.45 of the Malabar Tenancy Act. Both the courts below held that Ext. B16 lease was not a prudent transaction, which was within the power of the mortgagee to grant. They also expressed themselves that the transaction was collusive and entered into for preventing the plaintiffs from recovering possession. This is found stated in Para.33 of the Trial Court's judgment, and in Para.44 and 45 of the lower appellate court's judgment. When this matter was dealt with by the Division Bench of this Court on the earlier occasion, this Court also found that the transaction was fraudulent and collusive.
(3.) As we are rehearing the matter, we have gone into the matter afresh. We think there is enough to sustain the observations made by the Trial Court and by the lower appellate court that Ext. B16 lease, which, by assignment vested in the 6th defendant, was a collusive transaction. We are inclined to gather this from the circumstance that the lease was executed, as noticed earlier, subsequent to the institution of the suit for redemption and recovery of possession, although in the wrong court , on 26-6-1952. Added to this, are certain other circumstances. The 5th defendant, who was the assignee of the rights of the 3rd defendant, is the father inlaw of the 6th defendant, the assignee of the leasehold rights under the 4th defendant. The 4th defendant himself is the uncle's son of the 3rd defendant. The relationship between the parties has been noticed in Para.44 of the lower appellate court's judgment. As a result of the assignments and transfers, we find that while the father inlaw retained the interest of the mortgagee, the son inlaw, the 6th defendant, became entitled to the rights of the lessee under the mortgagee. We also notice that the property was of a fairly extensive area, nearly six acres in extent, with 499 bearing coconut trees and 97 arecanut trees, besides other fruit bearing trees. The rent stipulated under the lease deed was only Rs. 120/- which has been found by the courts below to be low. In view of these considerations and circumstances, we think that the courts below were justified in finding that the transaction evidenced by Ext. B16, assigned by Ext. B127 to the 6th defendant, after the institution of the suit in the proper court was a collusive transaction.;
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