- Bookmark
- Share
- CaseIQ
Kolathoor Variath And Another v. Paiaprakottoth Cheriya Kumhahammad Haji .
Factual and Procedural Background
The appellants sued the respondent for recovery of possession of certain land, mesne profits and arrears of purappad (annual paddy payments). They alleged that the land had originally been orally mortgaged for Rs 600 to one Kottah Ahmad, whose mortgagee rights were later purchased at court auction by the respondent. According to the plaint, the mortgage money stood discharged by accumulated purappad and the appellants, as owners (Tavazhi), were entitled to redemption and possession.
The respondent denied any mortgage relationship, asserting instead that he and his predecessor held the land as tenants. The trial court decreed possession in favour of the appellants, holding the respondent to be a mortgagee, not a tenant. The District Judge, as first appellate court, affirmed that finding. In second appeal, however, the High Court of Kerala reversed the decree for possession, ruled that the oral mortgage was legally unenforceable for want of registration, and treated the respondent as a tenant, granting only recovery of purappad. The present appeal challenges that High Court judgment before the Supreme Court.
Legal Issues Presented
- Whether, despite the statutory requirement of registration, the appellants could obtain possession on the strength of their title when an alleged oral mortgage is legally unprovable.
- Whether the respondent was in possession as a tenant or as a mortgagee, and whether the High Court was justified in disturbing concurrent findings of fact to the contrary by the courts below.
- Consequent upon the above, whether the respondent has subsequently acquired tenancy rights under the Kerala Land Reforms Act (an issue reserved for decision on remand).
Arguments of the Parties
Appellants’ Arguments
- The High Court erred in holding that an oral mortgage, made after the Transfer of Property Act came into force, could not be proved; alternatively, even if the mortgage cannot be proved, possession can be sought on the appellants’ pre-existing title.
- The High Court should not have interfered with the concurrent factual finding that the respondent is not a tenant. The lower courts’ finding was neither perverse nor unsupported by evidence.
Respondent’s Arguments
- The respondent and his predecessor were tenants, not mortgagees; hence he is entitled to continue in possession.
- Independently of past status, the respondent has become a tenant under the Kerala Land Reforms Act (raised for the first time before the Supreme Court).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ma Kyi v. Maung Thon, AIR 1935 Rang 230 | A party unable to rely on an unregistered oral mortgage may nonetheless sue for possession on the strength of title. | Used to support the proposition that the appellants could seek possession based on their ownership, even if oral mortgage evidence is inadmissible. |
| Hansia v. Bakhtawarmal, AIR 1958 Raj 102; ILR (1958) 8 Raj 126 | Same principle as above—title is an independent basis for recovery when the mortgage cannot be proved. | Relied upon for the same reason, reinforcing the appellants’ right to sue on title. |
Court's Reasoning and Analysis
1. Right to sue on title. Citing Ma Kyi and Hansia, the Court held that even if an oral mortgage is unenforceable for want of registration, the owner may still recover possession by virtue of title. The plaint expressly pleaded such an alternative ground.
2. Status of possession. The Supreme Court scrutinised the High Court’s interference with factual findings. The trial court and District Judge relied on exhibits A-52 and A-54, in which both the respondent and his predecessor had admitted possession under a mortgage. Those documents, though not admissible to prove mortgage terms, were admissible to show the nature of their claim and contradicted any plea of tenancy.
3. Error in High Court’s approach. The High Court based its conclusion of tenancy on (i) the sale certificate (Ex. B-1) and delivery proceedings (Ex. B-2) to which the appellants were not parties, and (ii) an averment in para 2 of the plaint concerning a proposed increase of mortgage amount and purappad. The Supreme Court found these materials insufficient to discard concurrent factual findings, noting that the respondent himself had not pressed that averment and lower courts had acted on the purappad rate pleaded in para 1.
4. Finding restored. The Court reinstated the lower appellate court’s finding that neither the respondent nor his predecessor was inducted as a tenant.
5. Unexamined statutory defence. Because the respondent newly contended that he had become a tenant under the Kerala Land Reforms Act, the Supreme Court considered it appropriate for the High Court to address that statutory question in the first instance. Accordingly, the matter was remitted.
Holding and Implications
Appeal ALLOWED; judgment and decree of the High Court SET ASIDE; case REMANDED to the High Court.
Implications: The High Court must now determine whether the respondent has acquired tenancy rights under the Kerala Land Reforms Act; if not, the appellants will receive a decree for possession and consequential relief. The decision reiterates (a) that an owner may sue on title when an unregistered oral mortgage is unprovable, and (b) that a High Court in second appeal should not disturb concurrent factual findings absent perversity. No new legal precedent is established beyond reaffirming these settled principles.
S.N Dwivedi, J.— The dispute is about some land. The appellants instituted a suit against the respondent for possession over the land and for certain amount and mesne profits. In outline, the plaint allegations were that the land was mortgaged with possession to one Kottah Ahmad for Rs 600 subject to payment of purappad of 291 paras of paddy per annum after deducting interest on the mortgage amount. The mortgage was oral. The mortgagee's right was purchased in a court auction by the respondent. Since then the respondent is in possession as a mortgagee. The mortgage amount is fully paid up by the arrears of purappad. The appellants are entitled to regain possession. The respondent contested the claim. He denied that he and his predecessor-in-interest have been in possession as a mortgagee. The oral mortgage cannot be proved in a court. According to him, his predecessor-in-interest was a tenant, and so he also is a tenant. The trial court decreed the suit. The trial court held that the respondent was in possession as a mortgagee and not as a tenant. His appeal was dismissed by the District Judge. The District Judge held that he was in possession as a mortgagee and not as a tenant. He then filed a second appeal in the High Court of Kerala. The High Court allowed the appeal and set aside the decree for possession passed by the trial court and the District Judge in favour of the appellants. The High Court granted a decree for the recovery of purappad. In support of its judgment the High Court gave two reasons. Firstly, the alleged mortgage was made sometime after 1895 when the Transfer of Property Act was in force. A mortgage could be made only by a registered instrument, not by word of mouth. So no evidence could be led to prove an oral mortgage. The claim of the appellants based on an oral mortgage was accordingly rejected. Secondly, the respondent was a tenant.
2. Counsel for the appellant has strenuously contended before us that the first reason is plainly erroneous. He had endeavoured to draw support from certain decisions. He has also urged that the High Court should not have upset the finding of fact recorded by the Courts below as regards tenancy. In any case, this finding of the High Court is plainly wrong. For the reasons to be stated presently, we do not think that it is necessary to examine the first submission of Counsel for the appellants. It appears to us that they are entitled to the relief of possession on another short ground.
3. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a Court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon AIR 1935 Rang 230 and Hansia v. Bakhtawarmal AIR 1958 Raj 102, ILR (1958) 8 Raj 126). Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A(1) in the plaint:
“That in case the Court is of opinion that the plaintiffs are not entitled to sue on the strength of mortgage as there is no mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hence the Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant.”
In para 1 of the plaint they set up their title to the disputed land. In para 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant.
4. So the crucial question is whether the respondent is a tenant. The lower appellate court, after discussing the oral and documentary evidence held that the respondent “had failed to prove that he was in possession of the property as a lessee”. It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Court's intervention in second appeal. Ex. A-52 is an admission by the predecessor-in-interest of the respondent. He has admitted that he was in possession under a usufrutuary mortgage for Rs 600. Ex. A-54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor his predecessor-in-interest was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent, Ex. B-1 and Ex. B-2. Exhibit B-1 is the sale certificate issued to him on May 29, 1943. Exhibit B-2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex. B-1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex. B-2 the right of the judgment-debtor is shown as the Munpattom right for Rs 600. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondent's predecessor-in-interest. The High Court has also relied on an averment in the plaint. In para 2 of the plaint the appellants have stated that the respondent said the Purappad in 1127 (1951-52), when one of the appellants demanded that the mortgage amount should be increased to Rs 2000 and the Purappad should be enhanced to 300 paras. The respondent agreed to pay Rs 1400 in addition to Rs 600 and raised the mortgage amount to Rs 2000. He also agreed to enhance Purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent. The High Court says:
“They say therein that in 1127 (the appellants) made a demand to increase the mortgage amount to Rs 2000 and to increase the Purappad to 300 paras of paddy per year, which was not complied with by the (respondent). If the property were given to the transferee as security for the amount advanced by him, what can be expected is that out of the income derivable from the property, after deducting the interest on the mortgage money and probably the cultivation expenses, the rest has to be paid to the mortgagor as excess profits derived from the property. The consequence is that if a further amount of Rs 1400 was also taken as mortgage money, what can reasonably be expected is a proportionate reduction in the Purappad payable. What I find, on the other hand, was a demand for an increase of dues from 291 paras of paddy to 300 paras per year even after taking an additional amount of 1,400. This is tell tale that the (appellants) were trying to get an increased pattern from the (respondent), which means that the arrangement was only a lease arrangement.”
5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants' plaint, which, at worst, may be echoing two voices. More, over the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in para 1 of their plaint and not as claimed in para 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor his predecessor-in-interest was inducted to the property in dispute as a tenant.
6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court, for decision of this question and for disposal of the second appeal accordingly.
7. The appeal is allowed. The Judgment and Decree of the High Court are set aside. The case is remanded to the High Court for rehearing and deciding the second appeal in the light of the finding on the question whether the respondent has become a tenant under the Kerala Land Reforms Act. If it is found that the respondent has not become a tenant under the said Act, the appellants should be given a decree for possession with other consequential reliefs. Parties shall bear their own costs.
Alert