Kali Narayani and 2 Others vs Neelakantan Nanu and another

K. Sukumaran, J.—A doubt expressed on the correctness of the decision of our learned brother Pareed Pillay, J. in Anna v. Devasia 1986 KLT 79 led to the reference of the case to the Division Bench. The second appeal arose opt of a suit for redemption and a claim of kudikidappu. The property had been mortgaged under Ext. P2 dated 6-10-1951. The mortgage rights were assigned in favour of the 1st defendant by Ext. p3 dated 13-7-1954. Second defendant was the husband and the 3rd defendant, the son of the assignee-mortgagee. Defendants 2 and 3 were impleaded as persons residing in the suit property. The suit was decreed but subject to the right of kudikidappu of the defendants in the suit property. In appeal, kudikidappu claim was denied on the ground that there was a joint acquisition covered by Ext. P4. and if the share in that property is also reckoned, the assignee-mortgagee will be in possession of an excess over the permissible area to qualify for kudikidappu rights. This view is no longer tenable in the light of the decisions of this Court, including Balammal v. Vasantha Kumari & others, 1984 KLT 137, where joint possession of a property has been held to be not sufficient to destroy a claim of kudikidappu. That contention raised specifically in the second appeal, would ordinarily result in the appeal being allowed and the appellate decree reversed.

The respondents, however, could rightly claim protection of the dictum laid down in 1986 KLT 79 supra, which denied to the assignee-mortgagee the right of kudikidappu. No one other than the mortgagee him-, self could claim it - was the firm declaration of this Court. The dictum, naturally, would have application in large number of cases.

Quite often, when a judicial pronouncement is made causing such a serious impact on the rights of the lowliest of the low in the social strata, the State would seriously consider the question of curative legislation. Such a habit seems to be infrequent in this area in recent times. An authoritative pronouncement on the question is necessary to avoid the potential difficulties confronted by large section of helpless hutment dwellers. Such a pronouncement was felt desirable and necessary by one of us when the reference was made. We shall presently undertake that work.

It is better to start with a reading of the definition of ''kudikidappu''. Omitting portions which are not material or relevant for the consideration of the issue, the section reads:

Explanation IV to S. 2(25) of the Kerala Land Reforms Act Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption-

(a) he has no other kudikidappu or residential building belonging to him, or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead; or

(b) his annual income does not exceed two thousand rupees.

The provision protects persons who were formerly mortgagees. So long as the mortgage subsists and possession continues, the mortgagee will have the land in his possession and possibly a protective roof. The position becomes different when redemption is decreed and eviction is imminent. He gets some little money but not even a square meter of soil. In the light of the inflationary spiral, and the anguish of the diminishing value of money, the eviction-facing mortgagee would virtually be thrown into the open, if not direct into the street at that juncture It is to protect that class of persons who are forced to part with the land in the course of a redemption decree, that the legislature intervened and gave a statutory solace. The scope and ambit of that section had been judicially commented upon by various decisions of this Court. (Vide Lakshmanan v. Ariyayi, 1979 KLT 126 & others).

The further question is whether the right to claim kudikidappu is limited to and available only for, the mortgagee and unavailable to an assignee of the mortgagee. As noted earlier, Pareed Pillay J. confined the protection of the section to the mortgagee, the person so referred to eo nomine in the mortgage deed.

The learned Judge observed:

There is no indication to show that Explanation IV can be availed of by an assignee mortgagee as well. Words in Explanation IV are clear and categoric to include only the mortgagee with possession of the property. It is not possible to read into the above Explanation that assignee mortgagees would also be entitled to its benefit. It appears that the intention of the legislature is only to protect mortgagees who fall within the category enumerated in Explanation IV.

With great respect to the learned Judge, we feel that the above extract only enumerates the conclusions, and not the logical reasons for the conclusions.

The substantial reasons mentioned by the learned Judge in support of that conclusion are:

(1) The definition of a mortgagee as inclusive of his assignee, as introduced u/s 59A of the Transfer of Property Act is confined to the use of that term in Chapter IV of that Act.

(2) Explanation IV requires the election of a homestead for residence by the mortgagee himself; in the alternative the mortgagee himself should have been residing in a hut already in existence. The conditions in clauses (a) (not having any other land of the stipulated extent as referred to therein) and (b) (the only income not exceeding Rs. 2000/-) also have to be satisfied.

(3) There is a possible misuse which would arise if an assignee mortgagee is also permitted to claim kudikidappu.

The benefit conferred by Explanation IV can be misused if it is held that assignee mortgagee would also be entitled to the benefits under the Explanation. The mortgagee who is really not entitled to the benefit mentioned in Explanation IV can assign his right to a person who may satisfy the conditions to torpedo the claims of the mortgagor even a time when he knows that the suit for redemption is likely to be decreed.

(4) The analogy of Section 106 of the Land Reforms Act where there is a legislative inclusion of the legal representatives or the assignees in the term ''lessee''. The absence of such a specific inclusive definition in relation to Explanation IV, is indicative of a narrower meaning for the term "mortgagee".

We shall examine these reasons in their serial order and with the seriousness they require.

The learned Judge noted Section 59A of the T.P. Act but felt that its operation is within the small complex of Chapter IV of that Act. What would be the position de hors Section 59A? That is a question which will have necessarily to be asked, while considering the question whether the term ''mortgagee'' would, under general law, include the assignee of the mortgagee as well.

The position appears to be well settled that ordinarily the term mortgagee wilt take in his assignee as well. Students of Property Law could pour into the pages of Fischer on Mortgage, or if an Indian author be preferred, Ghosh on Mortgages. This legal position of the pre-1929 period (Section 59A was introduced under Transfer of Property (Amendment) Act of 1929) is lucidly discussed by a Bench of the Madras High Court in the decision V. A. Subba Rao v. Ponnammal Nadathi, AIR 1924 Madras 453. Even ignoring an amendment of the nature brought about u/s 59A of the Transfer of Property Act, the general position is that in the absence of any strong contra indication a mortgagee would include the assignee of a mortgagee.

Our endeavour in the elucidation of this aspect is considerably lightened by a Bench decision in Narayana swami Iyer v. Kutton alias Sankaran Nair, A. S. Nos. 64 and 123 of 1971 (The decision is referred to only in a head note in 1974 KLT 28, Case No. 77-the decision covers many pages The usefulness of the discussion notwithstanding, many such decisions are unavailable in full reports). Paragraphs 5 and 6 furnish useful summary of the legal position and could be profitably extracted as such:

There is no definition of the term mortgagee in the Kerala Land Reforms Act. That, of course, is a term defined in the Transfer of Property Act. There was a controversy at one time as to whether the term mortgagee would refer only to the person who has taken the mortgage or whether, the term could be taken to refer also to assignees of the mortgagee or his legal representatives. In several decisions courts construed the term mortgagee to mean not only the original mortgagee who entered into the transaction but also his successors and assignees. Ultimately Section 59A of the Transfer of Property Act was incorporated into the Parent Act by was of amendment :

59A. Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.

The amendment, it would appear, was intended to set at rest the controversy as to the scope of the term mortgagee. It is not as if prior to such amendment the term mortgagee could not have included the legal representatives and assignees within its scope. That is how we understand the position by reason of the decisions of court prior to the incorporation of Section 59A.

May be the term mortgagee or lessee is employed in a statute in the limited sense of the person who has entered into the mortgage or lease transaction or may be the term is employed in a wider sense as to include his assignees and legal representatives. Where this is not expressed in the statute itself it may have to be gathered from the context and circumstances and particularly the nature of the statute in which such term is employed.

The term mortgagee has been interpreted in other contexts, as in Raghavan Nair v. Daniel. 1959 KLT 1232 and in Kunhappa Kurup v. Madkavi Amma, 1965 KLT 789 Recently, the Supreme Court upheld as sufficient the deposit of arrears by an assignee of a tenant, in the context of a rent control litigation which stipulated deposit of such arrears by the tenant to ward off an eviction. ''

It would then follow that even without the crutch of Section 59A, the assignee of a mortgagee could walk as briskly as the original mortgagee himself to get at and claim whatever is due to his predecessor in interest. This part of the reasoning of the learned Judge is therefore fallacious and that support to the conclusion reached in the decision collapses.

We now come to the case of ''abuse'' as tilting the natural interpretation of the term ''mortgagee'' used in the section.

It is elementary that legislative draftsmanship, even when endowed with the highest skill and the greatest concentration, cannot conceive of all situations to be within the sweep of the enacted provisions. Innovative imagination could certainly abuse a provision intended for the promotion of the most laudable objectives. Frustration of the legislature''s desire is more frequently seen in the area of taxing legislation. An activism by which abuses are checked and administrative ambition achieved, is the right-answer - something which is sadly wanting in this country in very many areas. The mere fact that a section could be subjected to a perverse use is no compelling reason to whittle down its natural effect. If abuses be noticed, and if their proportion be so oppressive, the Government endowed and equipped with better administrative acumen, could step into the field by taking remedial steps. That is an area of concern for the State and not for the Court When, normally, the term ''mortgagee'' occurring in a statutory provision would take in the assignee as well, it requires much more than an argument of potential abuse, to strain and strangle the natural meaning.

We may pause over this possibility of abuse and ponder about it in somewhat greater detail. In that context, certain features of a mortgagee kudikidappukaran have to be noted and emphasized. The claim of kudikidappu becomes relevant not at the time of the institution of the suit for redemption. The crucial time is the time of eviction. That presupposes a decree for redemption which has assumed finality, having passed through the hierarchy of the courts empowered to consider that question. When, at long last, a decree for redemption is well poised and well insulated to catalyse the eviction process, the situation gets not for the mortgagee. It is then that he can, and only then that he need put forward the case of kudikidappu. In the mean time, during the pendency of the suit for eviction in the various stages and courts, or even: in the initial stages of the execution, it will be open to him to off-load handicaps which would otherwise preclude him from claiming the status of a kudikidappukaran. He can denude himself of the property which he had at the time of the institution of the suit. He can forsake the income yielding - avocations or avenues so as to bring it within the less - than poverty''-line of Rs.. 2,000/- per year. That would, in a sense, mean an abuse of the legal provision. For the only reason that the relevant time for claiming the kudikidappu status is the time of eviction, the deliberate exercises which do not have a holy halo could be resorted to with impunity. Thus, abuse is a weapon - anasty one to honest minds - which could be wielded by the original mortgagee himself. Yet, for that reason, the original mortgagee is not deprived of the statutory protection. If that be so, it does not stand to reason that the assignee of the mortgagee should be holier than the mortgagee himself.

Who is the person, who by such ''abuse'', gets an unmeritted advantage? The answer can be better obtained by a more useful, and if need be, more halting consideration of the relevant aspects. The assignee mortgagee, cannot get a statutory protection of the kudikidappukaran, whatever be his character. In addition to his having the mortgage interest, he has to fulfil, just like the original mortgagee, two serious and rigorous conditions, regarding the possession of a less than prescribed area of land and/or but and a condition regarding the meagre annual income. If the protection be intended to those who do not have a roof above them the protection is not abused in that sense when the assignee mortgagee who claims it, and establishes it, would himself a member of that destitute class of persons without the requisite land or without the requisite income. In that view also, it is difficult to posit an objectionable abuse of the statutory provision at the hands of an assignee mortgagee.

The third and final reason is the contrast picture presented by Section 106 of the Land Reforms Act. Though at times such a tool is a helpful key to the interpretation of a statute, it need not always be so. That method therefore, is not always safe and sure for the interpretation of the section. At any rate, in a situation like the present one, it is inadequate to displace the natural meaning the section has to be given.

Section 106 was originally couched in a different form. Its earlier mould had been subjected to judicial gaze, in the decision reported in Mamoo v. Asya, 1965 KLT 126. The court therein started with the general proposition about the absence of a privity of contract between the landlord and sub-tenant. Then the court proceeded on the specific wording of section 106 of the Act as it stood then. The term lessee had not been defined in the Act. Yet, a provision therein-that the lessee shall be one liable to pay rent under the contract of tenancy was held to be a clear indication about the intention of the legislature, as insisting on a "direct relationship with the person who can ask for eviction and whose claim for eviction can be resisted under S. 106". Paragraph 23 of the judgment specifically mentions about the significance of that term. The legislature possibly noted the decision and reacted to it. The inclusive definition of lessee as incorporated under Act 35/69, is easily understandable in that background. Such a statutory exercise, however, is insufficient to alter the ordinary purport and effect, while interpreting Explanation IV. Let it also be noted that Explanation IV does not contain any limiting phrase or provision constricting the plenitude of the substantial provision. We shall conclude our discussion by a brief reference to the role of Courts in the construction of statutes, statutes intended to bring about social transfer action.

Toil in the soil had greater appeal than that one gets from other income-earning-ventures. He who shall sow, shall reap the crop-was a message surcharged with justice. Exploitation of that little man wed to the sod, created problems Sufferings of such sections have continued for ages. Latterly, they sought liberation from their chains and pains. Struggles in some countries contributed much to the development of law and literature, such as in Ireland. Evert an unwilling upper class adjusted itself to appeasing land reforms when pressure was too high to be resisted. Even before the Great Revolution, Stolepin, the Russian Minister, effected a great land reform. India, with an interwined social and economic oppression, had added problems, which the Constitution had to take care of. The thrust and trust in land reforms, evident from very many constitutional amendments, including the 66th one, reflects the care and concern of the Supreme will of India in the larger weal of Indians. Courts have an added responsibility in that context. In the specific Indian situation, one may not readily see a maxim in Maxwell or in the more critical book of Craies. Judges have necessarily to adapt their interpretational'' technique to meet the challenges of their own country and their own social set up. Even in the context of the land reforms, the Supreme Court of India have made such attempts. (See State of Haryana and Others Vs. Sampuran Singh and Others, ). If need be, even a departure from the plain meaning is permissible to give effect to the true intent of legislation. (See the further step taken by that court in Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others, . That Court, rightly deprecated a backward looking'' approach in interpretational exercises, as in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, . Some of these aspects have been considered while interpreting a kudikidappukaran''s claim under Sec. 75(1) (iv) in Kunhambu v. Krishna 1987(2) KLT 604. For the little man, the hutment dweller :

A hut to live in, a little space to move around is substantial gain.

for, until then, he "had only the sky above as his roof, and an unending search for fresh habitat when driven away from the land". (See Kunhambu''s case supra).

In Pappupius v. St. George Church, 1984 KLT 1032, this Court observed :

A narrow interpretation which restricts the rights of hutment dwellers would be farthest from the intention of the Legislature

The Supreme Court declined to disturb the decision by dismissing the SLP filed against it.

We shall necessarily to keep in mind, the guide lines and the sign posts so furnished, while laying down a principle of general application and far reaching implication.

The Courts have necessarily to remind themselves that they are not to act as obstinate obstacles in the smooth progress of a progressive social reform. Revolution by process of law-Cobden''s fiery message-is not to be an empty slogan. Resistance, and sometimes even revolt, surface when existing luxuries privileges or rights are taken away by any such legislation. The lack of wisdom in that negative attitude had been elucidated by a powerful Prime Minister while emotionally dealing with the remedial reaction of Parliament to a judicial decision on the scope and ambit of Article 31 of the Constitution of India. (Vide Jawaharlal Nehru''s Speeches 1949-1953, Volume IT, Page 479). A propelling force is quite often given by the interpretational process of the Courts of Law. That was how a Speaker of the House of Commons - one who served as such for about seven years and under different party regimes-when he stated that whatever be the intention of Parliament, it is the Court''s verdict, that is the final say. (See "Mr. Speaker" by Viscount Tonypandy, page 222). An enlightened Parliament recognises the curial pronouncement. The force of courts is thus a well recognised one. It is better that the force is applied not to a window but to a wheel, for, in the one case there is movement but no progress; in the other, both movement and progress. In relation to social legislations offering solace, though in a limited measure to the lowest in the social strata, that interpretation which subserves the poor man''s good, has necessary priority and preference. Viewed from that broader background of curial course of interpretation also, the limiting factor as contained in the single Judge''s decision has to be removed without hesitation. For all these reasons as discussed above, we hold that the case, Arina v. Devasia, 1986 KLT 79 has been wrongly decided; that the term mortgagee as contained in Explanation IV to Section 2 (25) of the Kerala Land Reforms Act, would take in the assignee mortgagee as well, subject, of course, to his satisfying other conditions indicated in the section.

The appellants are declared to be kudikidappukars and therefore immune from eviction under the provisions of the Land Reforms Act. The Second Appeal is accordingly allowed. We decline to award costs.