TaxTMI 
TaxTMI 
2014 (4) TMI 1134
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....y 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 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 ef....
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....ppellant 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 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 unde....
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....n it found that the appellant's mother was a mortgagee and it is further found by both the 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 th....
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.... 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 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 ....
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....ab 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? (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 ....
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....ssions are used in the following senses, unless a contrary intention appears from the context :- (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; (h) An agreement ....
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....ld 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 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. ....
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....on 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 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....
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.... 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 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 af....