MATHAI MATHAI Vs JOSEPH MARY @ MARYKKUTTY JOPSEPH .
Bench: GYAN SUDHA MISRA,V. GOPALA GOWDA
Case number: C.A. No.-004479-004479 / 2007
Diary number: 19948 / 2005
Advocates: M. T. GEORGE Vs
HIMINDER LAL
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4479 of 2007
MATHAI MATHAI ……APPELLANT Vs.
JOSEPH MARY @ MARYKKUTTY JOSEPH & ORS. ……RESPONDENTS
J U D G M E N T
V.Gopala Gowda, J.
This appeal is directed against the impugned
judgment and order dated 1.7.2005 passed by the High
Court of Kerala at Ernakulam in Civil Revision
Petition No. 873 of 1997(C) allowing the Civil
Revision Petition and rejecting the O.A. No. 230 of
1981, urging various facts and legal contentions.
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2. Necessary relevant facts of the case are stated
hereunder:-
The appellant herein filed Original Application
No. 230 of 1981 before the Land Tribunal, Kottayam
claiming to be a deemed tenant under Section 4A of the
Kerala Land Reforms Act, 1963 (hereinafter referred to
as “the K.L.R. Act”) read with Kerala Land Reforms
Tenancy Rules (for short “the Tenancy Rules”) and
stating that his uncle had executed a mortgage deed in
the year 1909-1910 in favour of the appellant’s mother
late Smt. Aley as a collateral security for a sum of
7000 Chakram which was the dowry amount.
3. It is the case of the appellant that his mother
has been in possession of the land involved in the
case as a mortgagee from the date of execution of the
mortgage deed referred to supra and she has been in
continuous possession of the same for more than 50
years as on the date of the commencement of the K.L.R.
Act (substituted by Act 35 of 1969) immediately
preceding the commencement of the Kerala Land Reforms
(Amendment) Act, 1969 which was published in the
Kerala Gazette Extraordinary No. 295 dated 17.12.1969
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w.e.f. 1.1.1970. Therefore, he should be registered as
deemed tenant in respect of the land in question as it
has conferred a statutory right on him to purchase the
mortgaged land in toto to the extent of 2 acres 48
cents. In the said proceedings the father of the
appellant got impleaded and opposed the claim made by
the appellant and further denied that the mother of
the appellant had right as the mortgagee and was in
possession and holding the land as a deemed tenant for
the 50 years immediately preceding the amended
provisions of Section 4A of the K.L.R. Act, which
provision came into effect from 1.1.1970. Therefore,
he has contended that he is not entitled to be
registered as a deemed tenant and cannot obtain
purchase certificate of the land in question as per
Section 72B of the K.L.R. Act. Vide order dated
21.3.1994, the Land Tribunal, after recording the
finding of fact, held that the appellant is a deemed
tenant under Sections 4A of the K.L.R. Act and
therefore, he is entitled to get the purchase
certificate.
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4. Aggrieved by the said order, the first respondent
and others filed an appeal before the Appellate
Authority (Land Reforms) under Section 102 of the
K.L.R. Act questioning the correctness of the order
dated 21.3.1994 passed by the Land Tribunal, Kottayam,
on various factual and legal contentions. The
Appellate Authority has adverted to certain relevant
facts in respect of the previous proceedings in
relation to the same land initiated by the appellant
under Section 72 of the K.L.R. Act in O.A.
No. 531 of 1975, which was allowed by order dated
25.4.1978 which order was challenged by the first
respondent herein before the Land Reforms Appellate
Authority, Ernakulam as L.R.A.S. 534 of 1978 which
appeal came to be allowed and the case was remanded to
the Land Tribunal for reconsideration. In the said
proceedings the Revenue Inspector had filed his Report
dated 23.4.1992 as contemplated under Section 105A of
the K.L.R. Act. The same was marked as Exh.C1, after
examining Revenue Inspector in the proceedings. The
said report was not challenged by the first
respondent’s father and the same was accepted in toto
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by the Land Tribunal. It is further stated that the
objection of the father of the first respondent was
taken in the original application before the Land
Tribunal but he was not examined as a witness in
support of his claim as he died during the pendency of
the case. However, he was examined as a witness before
the Land Tribunal in the previous O.A. No. 531 of
1975. In his deposition he has clearly stated that the
possession and enjoyment of the disputed property was
by the appellant herein. The said deposition is marked
as Exh.A8 before the Land Tribunal.
5. The Appellate Authority after referring to the
registered mortgage deed which is marked as Exh.A1,
has recorded the finding of fact holding that the
property involved in the original application of the
appellant has been in his possession and enjoyment of
the appellant and he has effected improvements on it
and cultivated the property and that the first
respondent has no title or possession over the
property at any time. To prove the mortgage deed, A1
the appellant herein and independent witnesses were
examined on behalf of the appellant as A2 and A3 and
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documentary evidence produced were marked as Exhs.A1
to A9 in support of his claims. The said evidence has been corroborated by the Revenue Inspector’s report
and the first respondent was examined and she did not
have direct knowledge of the property in dispute and
her evidence was not accepted by the authorities. It
is observed by them that the respondent’s evidence
does not carry any weight and reliance was placed upon
both oral and documentary evidence of the appellant
and the finding recorded by the appellate authority
holding that he is the deemed tenant and the order
passed by the Land Tribunal does not call for
interference as there is no merit in the appeal and
the order of the Land Tribunal was confirmed by
dismissing the appeal of the first respondent with no
cost by its order dated 9.4.1997. This order was
challenged by the first respondent before the High
Court of Kerala under Section 103 of the K.L.R. Act,
urging various legal contentions. The High Court
passed a cryptic order after adverting to certain
rival contentions and examined the correctness of the
same in the Revision Petition. The learned Judge of
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the High Court at para 3 of the impugned order has
recorded the finding of fact holding that the factum
of possession of the appellant cannot be disputed in
view of the concurrent finding of fact. However, he
has further held that mere possession of the disputed
land does not give right of tenancy of the same on the
basis of Exh.A1, the registered mortgage deed, which
is the hypothecation bond and held that no possession
of the disputed land was granted under the said
document. Hence, it is held that Section 4A of the
K.L.R. Act is not attracted to the fact situation of
the case on hand to enable the appellant to get
purchase certificate in respect of the disputed land
under Section 72B of the K.L.R. Act as it was
necessary to prove that he is a cultivating tenant
holding the property in possession as a mortgagee
which is absent in the present case. The learned Judge
of the High Court held that the concurrent finding of
fact by both the appellate authority as well as the
Land Tribunal that Exh. A1 is the deed of mortgage
under which the appellant is claiming possession of
the land in question as the mortgagee, is not
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factually and legally correct and accordingly has
allowed the Revision Petition of the first respondent
and rejected the Original Application No. 230 of 1981
filed by the appellant.
6. The correctness of the said order is under
challenge before this Court raising certain questions
of law. Mr. M.T. George, the learned counsel for the
appellant has contended that the High Court exceeded
its jurisdiction under Section 103 of K.L.R. Act in as
much as there is a failure to decide any question of
law and has rendered an erroneous decision on the
question of law framed by the appellate authority. He
further urged another legal contention that the High
Court was not justified in interfering with the orders
of the Land Tribunal and the Appellate Authority, both
on the factual and legal question which was not
agitated by the first respondent before the Land
Tribunal and the Appellate Authority. Further, the
High Court was not justified in reversing the orders
of the Land Tribunal as well as the Appellate
Authority, when it found that the appellant’s mother
was a mortgagee and it is further found by both the
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authorities as well as the High Court the fact that
the appellant’s mother and the appellant were in
possession of the property for the statutory period
prescribed under Section 4A of the K.L.R. Act. The
Land Tribunal and the Appellate Authority recorded the
finding on the contentious issue and held that the
appellant is the deemed tenant of the land in question
under Section 4A of the K.L.R. Act, which order has
been erroneously interfered with by the High Court in
exercise of its revisional jurisdiction. It was urged
on behalf of the appellant that the appellant is
entitled for the relief as he is the deemed tenant
under Section 4A of the K.L.R. Act when his deceased
mother was admittedly the mortgagee of the land in
question and he continued as such and both the fact
finding authorities have found them to be in
possession of the land in question for more than the
statutory period as provided under the above provision
of the Act. It was contended that the High Court in
exercise of its revisional jurisdiction should not
have interfered and annulled the orders of both the
Land Tribunal and the Appellate Authority and it has
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erroneously set aside the concurrent findings of fact
recorded by both the authorities vide the impugned
order passed in the Revision Petition. Therefore, he
submits that the impugned order is liable to be set
aside as it is not only erroneous but also suffers
from error in law. The appellant’s contention is that
the property was mortgaged as a collateral security
for the Stridhan amount given on behalf of the
appellant’s mother at the time of her marriage with
the father of both the appellant and the first
respondent and though the document does not contain
anything regarding delivery of possession of the
property to the deceased mother of the appellant in
the mortgage deed, nonetheless the appellant was put
in possession of the property in question on the date
of the mortgage itself and she continued to be in
possession with the same till her death and
thereafter, the appellant came into possession. The
appellant’s counsel has contended that the conclusion
of the High Court on the contentious issue is
unwarranted and not justified and that both the Land
Tribunal and the appellate authority have correctly
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held on facts that the appellant is the mortgagee and
has been in possession together with his mother for
more than 50 years as on the date the amended
provision has come into force, and therefore, they
have rightly held that he is a deemed tenant of the
land, and hence entitled to get the purchase
certificate in respect of the property in question. He
has further contended that all that the law requires
is that the tenure of the appellant as a mortgagee
must be for a period of not less than 50 years and
Section 4A does not demand that the mortgagee has to
be put in possession under the mortgage deed itself.
Therefore, the finding of the High Court in the
impugned order that ‘no possession of the land in
question was given under the document’ is an
unwarranted finding which is outside the scope of
revisional jurisdiction while examining the
correctness of the concurrent finding on the
contentious issue.
7. This appeal is strongly opposed by the first
respondent’s counsel who sought to justify the
correctness of the finding recorded by the High Court
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in its order in exercise of its revisional
jurisdiction after noticing the pleadings and
documentary evidence on record. The first respondent,
in her counter affidavit and written submissions has
stated that the appellant is bound to prove the fact
that he is the mortgagee and that the possession of
the property has come to him as the mortgagee and that
his deceased mother and the appellant have continued
in possession of the property in dispute for more than
50 years as on 1.1.1970, the date on which the K.L.R.
Act came into force to get the benefit of deemed
tenancy upon the land in question. It is contended by
the learned counsel that there is no recital in the
document of the mortgage deed and that Ex. A1, the
mortgage deed does not stipulate that the mortgagee is
put in possession by virtue of that document. There is no express clause for delivery of possession of the
schedule property in favour of the mortgagee at the
time of registering the document nor impliedly or by
implication which binds the mortgagor to deliver the
possession of the mortgage property to the mortgagee.
The first respondent has further contended that as far
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as the mortgage deed is concerned, the brother of the
appellant’s father is the mortgagor and the claim can
only be made against him and his property but however,
the appellant has not claimed the right against him
but instead against the first respondent and their
father. The mortgagor was not impleaded as a party and
it is the contention of the first respondent that the
appellant is attempting to get the ownership of the
entire property. Further, both the Land Tribunal and
the Appellate Authority have failed to take into
consideration the relevant fact namely, that at the
time of the death of his mother, the appellant was a
minor and therefore, could not have acquired
possession over the property as claimed by him.
Therefore, they have not taken into consideration the
fact that after the death of the mortgagee, the mother
of the appellant, possession of the land came to the
father of the appellant and the first respondent and
therefore, the appellant is not entitled to claim
continuous possession of the same to get the benefit
under Section 4A of the K.L.R. Act, even assuming
without conceding that the appellant’s mother acquired
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a right under Exh.A1, the mortgage deed. Both the Land
Tribunal and the Appellate Authority should have
noticed the fact that the mortgagee-mother of the
appellant was not at all in possession of the property
but it was in the exclusive possession of his father.
As per family settlement of the year 1965, 94 cents of
property covered under Exh. A1 was allotted to the
first respondent. Again as per the sale deed of 1975,
1 acre 68 cents of land covered under Exh. A1 was
given to first respondent and ever since she is in
exclusive possession and enjoyment of that extent of
the property which was originally covered under Ex.
A1-mortgage deed. Therefore, it is seen that the
property covered by Ex. A1-mortgage deed was in the
exclusive possession and enjoyment of the appellant’s
father. It was contended by the learned counsel that
this aspect of the matter has not been considered by
the Land Tribunal and the Appellate Authority.
Further, it is urged that the appellant and the first
respondent are children of the deceased Mathai Mathai,
though they are only half-brother and sister being
born to two different mothers. Therefore, the first
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respondent is also one of the legal heirs and entitled
to inherit the property of her father but the
appellant utilizing or misusing the position as a
mighty man with muscle power managed to get oral
evidence in his favour though there was no documentary
evidence supporting his claim and he has tried to grab
the entire property left behind by their father in
exclusion of the first respondent and therefore, she
requested this Court not to interfere with the
impugned order.
8. We have heard the learned counsel for the parties
and with reference to the above factual and rival
legal contentions urged on behalf of the parties the
following points would arise for our consideration :-
(1) Whether Exh.A1, the mortgage deed dated
1909-1910 is a valid mortgage deed and
even if it is so, whether it is a simple
or usufructuary mortgage in terms of
Sections 58(b) and 58(d) of the Transfer
of Property Act, 1882?
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(2) Whether the concurrent finding of the
Appellate Authority in its judgment
passed in AA No. 216 of 1994 is based on
legal evidence on record and in
accordance with law?
(3) Whether the finding recorded in the
impugned judgment by the High Court in
exercise of its revisional jurisdiction
with regard to possession of the property
holding that the appellant is not in
possession under the document Exh. A1-
mortgage deed, and therefore, he is not
the deemed tenant of the land in question
under Section 4A of the K.L.R. Act, is
legal and valid?
(4) What order?
Answer to Point No. 1 9. The first point is required to be answered against
the appellant for the following reasons:-
It is an undisputed fact that Exh. A1 is the
mortgage deed executed by the uncle of the appellant
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and the first respondent in favour of the deceased
mother of the appellant as collateral security towards
the dowry amount. At the time of execution and
registration of the document, it is an undisputed fact
that the age of the mortgagee, the deceased mother of
the appellant was 15 years as mentioned in the
mortgage deed itself. Therefore, she had not attained
the majority under the Indian Majority Act, 1875. To
acquire the competency to enter into a contract with
the uncle of both the appellant and the first
respondent the parties should have been of age of
majority as required under Section 11 of the Indian
Contract Act, 1872. The aforesaid aspect fell for
interpretation before the Privy Council in the case of
Mohori Bibee v. Dharmodas Ghose1, wherein the Privy
Council after interpretations of relevant provisions
of Section 11 of the Indian Contract Act, 1872, has
held that the contracting parties should be competent
to contract as per the above provision and the minor’s
contract was held to be void as he cannot be the
mortgagor, the relevant paragraphs referred to in the
aforesaid decision are extracted hereunder :- 1 (1903) I.L.R. 30 Calc. 539
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“Looking at these sections their Lordships are satisfied that the Act makes it essential that all contracting parties should be “competent to contract,” and expressly provides that a person, who by reason of infancy is incompetent to contract, cannot make a contract within the meaning of the Act”
In the later part of the same paragraph, it is stated,
“The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant. Their Lordships are therefore of opinion that in the present case there is not any such voidable contract as is dealt with in section 64.”
Thus, it was held that a minor cannot be a contracting
party, as a minor is not competent to contract as per
Section 11 of the Indian Contract Act. At this
juncture, it is also necessary to extract Sections 2
and 11 of the Indian Contract Act, 1872 which read as
under:-
“2.Interpretation-clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context :-
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(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; (c) The person making the proposal is called the “promisor” and the person accepting the proposal is called the “promisee”; (d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;
(e) Every promise and every set of promises, forming the consideration for each other, is an agreement; (f) Promises, which form the consideration or part of the consideration for each other, are called reciprocal promises; (g) An agreement not enforceable by law is said to be void;
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(h) An agreement enforceable by law is a contract; (i) An agreement which is enforceable by law at the option of one or more of the parties- thereto, but not at the option of the other or others, is a voidable contract; (j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.
11. Who are competent to contract- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”
This important factual and legal aspect has been
conveniently ignored by the authorities including the
High Court while adverting to Exh.A1, the mortgage
deed. A strong reliance was placed upon it by both the
Land Tribunal and the Appellate Authority in allowing
the claim application of the appellant holding that he
is a deemed tenant under Section 4A of the K.L.R. Act
without noticing the aforesaid relevant factual aspect
of the matter. Therefore, we have to hold that the
mortgage deed-Ex. A1 executed by the uncle of the
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appellant and the first respondent, in favour of the
deceased mother of the appellant, is not a valid
mortgage deed in respect of the property covered in
the said document for the reason that the deceased
mother at the time of execution and registration of
the document was a minor, aged 15 years, and she was
not represented by her natural guardian to constitute
the document as valid as she has not attained majority
according to law. Many courts have held that a minor
can be a mortgagee as it is transfer of property in
the interest of the minor. We feel that this is an
erroneous application of the law keeping in mind the
decision of the Privy Council in Mohori Bibee’s case
(supra).
10. As per the Indian Contract Act,1872 it is clearly
stated that for an agreement to become a contract, the
parties must be competent to contract, wherein age of
majority is a condition for competency. A deed of
mortgage is a contract and we cannot hold that a
mortgage in the name of a minor is valid, simply
because it is in the interests of the minor unless she
is represented by her natural guardian or guardian
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appointed by the court. The law cannot be read
differently for a minor who is a mortgagor and a minor
who is a mortgagee as there are rights and liabilities
in respect of the immovable property would flow out of
such a contract on both of them. Therefore, this Court
has to hold that the mortgage deed-Ex.A1 is void ab
initio in law and the appellant cannot claim any
rights under it. Accordingly, the first part of first
point is answered against the appellant.
11. As regards to the later portion of the first
point, even if we assume that it is a valid mortgage
deed as per recitals of the documents, it is evident
that it is a simple mortgage in terms of Section 58(b)
of the Transfer of Property Act, 1882, but not a
usufructuary mortgage as defined under Section 58(d)
of the Transfer of Property Act. The relevant
provisions of the same are extracted hereunder :-
“58.(b)-Simple mortgage - Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a
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right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(d) Usufructuary mortgage - Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.”
On a careful reading of the recitals in Exh.A1, the
mortgage deed and the aforesaid provisions of the
Transfer of Property Act, i.e. the definitions of
simple mortgage and usufructuary mortgage, wherein
simple mortgage is defined as the mortgage where
property is mortgaged without delivering possession of
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the mortgaged property to the mortgagee whereas
usufructuary mortgage is defined as the mortgage where
the mortgagor delivers possession or expressly or by
implication binds himself to deliver possession of
the mortgaged property to the mortgagee and further
authorises him to retain such possession until payment
of the mortgage- money, and to receive the rents and
profits accruing from the property or any part of such
rents and profits and to appropriate the same in lieu
of interest, or in payment of the mortgage-money, or
partly in lieu of interest or partly in payment of the
mortgage-money. It is clear that in the present case,
it is a simple mortgage and not a usufructuary
mortgage. Here, it is relevant to mention the case of
Pratap Singh @ Babu Ram & Anr. v. Deputy Director of
Consolidation, Mainpuri & Ors.2, wherein this Court
held as under :- “In the case of possessory or usufructuary mortgage, possession is delivered to the mortgagee. Delivery of possession to the mortgagee is a sine qua non of such a mortgage. It is delivered in terms of the mortgage by the mortgagor of his own volition to the mortgagee. The mortgagee gets possession over the land only because
2 (2000) 4 SCC 614
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it has been delivered to him in terms of the mortgage deed which equally binds him.”
Thus, it is apparent that if a mortgage needs to be a
usufructuary mortgage, possession has to be delivered
under the aegis of the mortgage deed itself. Further,
as per section 58(d) of the Act, in a usufructuary
mortgage, the mortgagor authorises the mortgagee to
receive the rents and profits accruing from the
property in order to pay off the loan and in the
present case, there is nothing to show that this was
happening and it is not substantiated by the appellant
by producing documentary evidence. Further, the
mortgagor has agreed to pay interest at the rate of
‘half chakram per year for every hundred’ towards
repayment of the loan amount and this is detailed in
the mortgage deed itself and hence we can infer that
there was no intention on the part of the parties to
allow the mortgagee to appropriate the rents and
profits accruing out of the mortgaged property. It is
also stated in the mortgage deed that, on payment of
the principal, this mortgage deed will be redeemed,
and if the principal and interest are not repaid, then
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it was agreed ‘to realize it charged upon the security
property and on me’, meaning the mortgagor. Thus, it
is very clear that the mortgage deed only purports to
be that of a simple mortgage. Merely the fact that the
mortgagee herein happened to be in possession of the
mortgaged property will not make it sufficient to rule
that he/she was a mortgagee in possession under the
deed. Further, the argument that possession of the
property was delivered immediately after the deed was
executed also cannot be a ground to hold that
mortgagee was in possession of the land in question
as per the deed as there is no recital in the deed
which delivers possession of the land to the mortgagee
under the deed. In the case of Ramkishorelal & Anr. v.
Kamal Narayan3, it was held that the course of conduct
of the parties is of no relevance for the construction
of a document which is in itself, unambiguous. In the
present case, the mortgage deed is unambiguous and it
is patently clear that the mortgagor did not intend to
deliver possession of the mortgaged property as he has
clearly mentioned that he is paying interest but there
is no delivery of possession of land as per the deed. 3 AIR 1963 SC 890
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12. By perusing the recitals of the mortgage deed, it
is seen that it neither expressly or by implication
binds the mortgagor, the uncle of the first respondent
to deliver possession of the property and for the
mortgagee to retain such possession of the same until
payment of the mortgage money but on the other hand
the mortgage is a simple mortgage as the recitals fall
within the definition of simple mortgage and there is
no express recital in the deed to deliver possession
of the mortgaged property.
By a careful reading of the orders passed by the
authorities, it is clear that the appellant has not
produced any revenue records to evidence the fact that
after Exh.A1-mortgage deed was executed by the
mortgagor in the name of the deceased mother of the
appellant, her name was entered in the revenue records
as the mortgagee in possession of the mortgagor’s
property covered in Exh. A1, and in this regard no
piece of evidence has been produced to establish this
fact which would have been material documentary
evidence. But on the other hand, the Land Tribunal and
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the Appellate Authority have preferred to simply rely
on the Revenue Inspector’s report as well as the
deposition of the father of the first respondent and
the appellant as per Exh.A8 in the proceedings in O.A.
No. 531 of 1975 in order to hold that the appellant
was in possession as the mortgagee. Even assuming the
said document Exh.A8 deposition of the father is taken
on record as evidence under Section 80 of the Evidence
Act, the said document at best will disclose the fact
that the appellant is in possession of the property
but not as a successor of the deceased mother, the
mortgagee of the property. He also could not have
claimed that he has succeeded in possession of the
land in question of the deceased mother for the reason
undisputedly as stated by the first respondent that at
the time of death of the deceased mother-mortgagee,
the appellant was a minor and therefore, he could not
have come into possession and continued as such after
the death of the deceased mortgagee and so the
possession of the land falls to the father of the
appellant. The appellant has failed to produce and
establish the fact in the absence of recital in the
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mortgage deed Exh.A1 as to how the mortgagee has come
into the possession and how he continued possession as
successor of the mortgagee. The aforesaid factual and
legal aspect has not been taken into consideration by
both the authorities while coming to the conclusion on
the basis of Exh.A1 and instead, accepted the oral
testimony of the appellant, and the finding is
erroneously recorded by them in his favour holding
that the deceased mortgagee was in possession of the
land in question and after her death he continued in
possession as a mortgagee. Therefore, the concurrent
finding of fact of the appellate authority that he has
proved this claim as a deemed tenant under Section 4A
of the K.L.R. Act and he is entitled to get the
purchase certificate of the owner of the property is
not only an erroneous finding but suffers from error
in law and it has been rightly set aside by the High
Court in exercise of its wider civil jurisdiction by
recording a finding that the appellant’s possession of
the property is not that of a mortgagee under the
mortgage deed.
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Answer to Point Nos. 2 and 3
13. Even in the absence of the reasons which we have
given in this judgment, the conclusion and the
concurrent finding of fact arrived at by the Land
Tribunal and the First Appellate Authority is not only
an erroneous finding but suffers from error in law.
Further, another important aspect of the case that has
been ignored by both the authorities and the High
Court is that the mortgagor (or his legal heirs) have
not been impleaded as a party to the original claim or
to subsequent proceedings. There is also no mention
whatsoever of the status of the original dowry amount
for which the property was mortgaged in the first
place. Was the obligation discharged? What is the
mortgagor’s stand on the issue? Nothing is clear.
Further, the first respondent’s claim of ownership
through her father is also highly curious as it is not
stated how the father is claiming ownership over the
property. In the absence of this important evidence,
we cannot adjudicate upon the ownership of the
property. We can only hold that the appellant cannot
claim to be a deemed tenant of the land in question
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under the K.L.R Act and it is open to the parties to
litigate on the question of ownership of the property
in question before the appropriate authority. We hold
that the impugned judgment of the High Court is
perfectly legal and valid, and that the orders of the
Land Tribunal and Appellate Authority are erroneous
for the reason that the facts and legal evidence have
been wrongly appreciated and held in favour of the
appellant, although it is contrary to the recitals of
Exh.A1, as well as the provisions of the Indian
Contract Act and the provisions of the Transfer of
Property Act. Therefore, the findings and reasons
recorded by both the Land Tribunal and the Appellate
Authority are erroneous and suffer from error in law
for the reasons referred to supra. We answer the point
Nos. 2 and 3 against the appellant.
Answer to Point No. 4
14. In view of our findings on the point Nos. 1 to 3
against the appellant, we hereby dismiss this appeal
and uphold the impugned judgment of the High Court
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passed in the Civil Revision Petition. It is open to
the parties to litigate before the appropriate court
with regard to the ownership rights of the property
under the relevant provisions of law to get their
rights settled upon the property in question. No
costs.
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA] New Delhi, April 25, 2014
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ITEM NO.1C COURT NO.13 SECTION XIA FOR JUDGMENT
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 4479 OF 2007
MATHAI MATHAI Appellant (s)
VERSUS
JOSEPH MARY @ MARYKKUTTY JOPSEPH & ORS. Respondent(s)
Date: 25/04/2014 This Appeal was called on for judgment today.
For Appellant(s) Mr. M.T. George,Adv.
For Respondent(s) Mr. Roy Abraham, Adv.
Hon'ble Mr. Justice V. Gopala Gowda pronounced the judgment of the Bench comprising Hon'ble Mrs. Justice Gyan Sudha Misra and His Lordship.
Civil Appeal is dismissed in terms of signed reportable judgment. No costs.
(Pardeep Kumar) AR-cum-PS
(Renu Diwan) Court Master
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
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