President, S.N.D.P. Sakha Yogam No. 756, Moolamattam and Secretary SNDP, Saktha Yogam, 756 Moolamattom vs Lalithambika

Thomas. P. Joseph, J.—Defendants in O.S. No. 360 of 2006 of the court of learned Munsiff, Thodupuzha challenge the judgment and decree for redemption of mortgage granted by that court and confirmed by the IInd Additional District Court, Thodupuzha in A.S. No. 56 of 2009. It is not in dispute that one Parameswara Panickar executed usufructury mortgage in favour of the first appellant (Ext. A1, dated 12, Makaram 1118) for a period of 48 years with a provision that interest is to be adjusted in the rent payable. First appellant was permitted to construct building and other structures for it''s purposes. The mortgagor died in the year, 1993. The period of mortgage expired. Thereon, notice was issued by the legal heirs of Parameswara Panickar, the mortgagor on 25-10-2006 asking the first appellant to execute release deed. The legal heirs of the mortgagor executed Ext. A2, release deed in favour of respondent/ plaintiff, on the strength of which she filed the suit for redemption of mortgage acknowledging the right of first appellant to get value of improvements.

Second appellant/second defendant contended that first appellant/ first defendant is a pattakudiyan as it constructed buildings in the suit property about 20 years before 1969 and since then the Secretary of first appellant was residing in the building. Trial court rejected that contention and granted decree in favour of respondent. First appellate court confirmed that decree.

Learned counsel for appellants contends that in the light of the decision in Muhammadunni vs. Mundikutty (1977 KLT 901), first appellant, the S.N.D.P Sakha Yogam can be treated as a "person" as defined in Section 2(42) of Kerala Land Reforms Act (for short "the Act" herein). It is also contended by the learned counsel that since evidence revealed that first appellant constructed building for its purpose as permitted by Ext. A1, mortgage deed and it''s Secretary was residing in the said building, first appellant is entitled to the protection of Section 4A(1)(b) of the Act.

So far as the said contention is concerned, it is necessary to refer to Section 4(A)(1)(b) of the Act. The said provision says that where 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 commencement of the Amendment Act, 1969, he is entitled to the protection u/s 4 A(1).

Ext. A1 enables the first appellant to construct building for its purposes. I must notice that first appellant is the S.N.D.P Sakha Yogam. Ext. A1 does not authorize the first appellant to construct building for the residence of its staff or office bearers. If in the building constructed by the first appellant for its purposes, its Secretary has stayed for sometime, that cannot be understood as coming u/s 4 A(1) (b) of the Act as if the building was constructed by the first appellant for the residence of its office bearers and staff. The object sought to be achieved by Section 4 A(1) (b) is to give protection to the mortgagee or lessee, who has constructed the building for his own "residence". Such a provision cannot be extended to a case of this nature where an institution in whose favour a mortgage was created was permitted to construct building for its purposes and comes up with a case that its Secretary stayed in a room in the building for some time and hence should get the protection u/s 4 A(1) (b) of the Act. I must also notice the evidence of DW1, the present Secretary of first appellant that he has only hearsay information about construction of the building in the year, 1943 and that records regarding construction are not available with the first appellant. He would say that there is no record to show that the then Secretary of first appellant stayed in the building in the suit property. DW 2 examined by the appellants would go a step further and say that there is no record to show that Narayanan, referred to in the written statement as the former Secretary who allegedly stayed in the building in the suit property was actually the Secretary during the relevant time. In such a situation courts below rightly refused protection of Section 4 A(1) (b) of the Act to the first appellant. Respondent has not denied the right of appellants to get value of improvements. Value of improvements was assessed with assistance of PW2, the Assistant Engineer, P.W.D. Exts. C1 and C1(a) are the report and plan. The value is assessed as Rs. 1,48,4,76/- . Appellants did not prefer any objection to Exts. C1 and C1 (a). Hence, there could be no complaint against assessment of value of improvements as well.

On hearing learned counsel and going through the judgments under challenge, I find that the decision is based on evidence. No substantial question of law is involved in this appeal. Appeal is dismissed.