TMI Blog1996 (9) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... these two appeals. As identical question arises for our consideration the appeals were heard together and are being disposed of by this common judgment. A short point arises for our consideration in these appeals. The appellants contend that they are entitled to the benefit of Section 4A of the Kerala Land Reforms Act, Act I of 1964 as amended by Act 35 of 1969 (hereinafter referred to as the Act ). The said provision seeks to confer the status of deemed tenancy on mortgagees in possession under circumstances mentioned in the said Section. The appellants who were erstwhile mortgagees in possession of the suit land contend that despite the decree for redemption passed by the Civil Court had become final against them, even during execution proceedings they are entitled to get the benefit of Section 4A of the Act. Therefore, their possession should not be disturbed. The Executing Court as well as the Appellate Court and also the Revisional Court have negatived this common contention. In order to appreciate the grievance of the appellants/judgment-debtors centering round the aforesaid provision a few relevant facts may be noted at the outset. The suit land was mortgaged by pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants] reads as under : 4A. 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 (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement; Provided that a mortgagee or lessee falling under this clause shall not be deened to be a tenant if he, or, where he is a member of family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la Land Reforms (Amendment) Act 1969, is not less than twenty five per cent of the market value of the land on that date; (ii) a land shall be deemed to be waste land notwithstanding the existence of scattered trees thereon. (2) Nothing contained in subsection (1) shall apply to a lessee if the lease was granted on or after the commencement of Act. A mere look at the said provision shows that the said Section will operate notwithsfanding any judgment, decree or order of any court against the concerned morgtagee in possession if the following conditions are satisfied : 1. He must be a mortgagee in possession of the land on the date of the coming into force of that Section which is not retrospective in nature meaning thereby the person who wants the benefit of Section 4A must be a mortgagee in possession of land on 1.1.1970. As we are not concerned with other types of excluded lands we need not refer to them. 2. Such a morgtagee in possession on 1.1.1970 must satisfy the further condition that he was holding the land comprised in the mortgage for a continuous period in the period of not less than fifty years immediately preceding the commencement of the Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been paid. Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. If the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts which he is bound to do under 5.60, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property through court. The same view was reiterated by a later decision of this Court in the case of Parameswaran Govindan v. Krishnan Bhaskaran Ors. 1993 Supp.(1) SCC 572. K. Ramaswamy, J., speaking for the two member Bench of this Court while considering the scope and ambit of Section 4A of this very Act held that from the date of deposit of the decretal amount the possession of the morgtagee respondent would be unlawful. Section 4-A of the Land Reforms Act would not denude the right to re-possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mortgagees in possession for 50 years and more, immediately preceding the commencement of Section 4A meaning thereby that prior to 1.1.1970 for continuous 50 years backwards without a break they must have continued to remain in possession as mortgagees in possession. The words 50 years immediately preceding the commencement of the Amendment Act at 1969 are very significant. In order that continuous period of fifty years can start immediately preceding the coming into force of Section 4A it must start from a day earlier, i.e., from 31st December 1969 backwards upto a period of fifty years meaning thereby stretching back till 31st December 1919. Thus even though the mortgagee in possession may be holding the possession of the land as mortgagee on 1.1.1970 he must further show that he had remained as a mortgagee in possession by himself or through his predecessor in interest continuously at least from 31st December 1919 till 31st December 1969 without any break. On the facts of the present case it cannot be disputed and it is not in dispute that the aapellants were not in possession as mortgagees in possession for this whole period but their status as mortgagees in possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even by the date the suit was filed, fifty years period was over. That may be so. However the requirement of the second condition, as we have shown earlier, is that such a mortgagee in possession who wants to avail of the benefit of Section 4A must show that he continued in possession as mortgagee for fifty years or more continuously at least from 31.12.1919 upto 31.12.1969 which was immediately preceding the commencement of Section 4A with effect from 1.1.1970. Learned senior counsel in this connection submitted that words immediately preceding the commencement may be given more expanded meaning as this is a beneficial provision. It is difficult to agree. In the first place the Section creates a legal fiction. Therefore, the express words of the Section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the Statute has arisen or not in the facts of the case; Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have stood the test if the Section would have been worded differently namely, as follows : such mortgagee was in continuous possession for a period of not less than 50 years prior to the coming into force of the Amending Act. Such words are not found in the Section. In fact learned senior counsel for the appellants wants us to read the Section after omitting the word immediately , advisedly prefixed by the legislature to the word preceding . Such an exercise is not permissible for the Court, We have to keep in view that as per the Section the 50 years period is circumscribed by further requirement that such continuous period of occupation as mortgagee in possession must exist without break or any hiatus till the date of coming into force of the Act and must consist of at least 50 years continuous occupation immediately prior to the coming into force of Section 4A, as such mortgagee in possession. However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4A such fiction can arise only when the express language of the Section laying down the conditions precedent for raising of such a fiction is complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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