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TMI Blog2014 (4) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the impugned judgment and order dated 1.7.2005 passed by the High Court of Kerala at Ernakulam in Civil Revision Petition No. 873 of 1997(C) allowing the Civil Revision Petition and rejecting the O.A. No. 230 of 1981, urging various facts and legal contentions. 2. Necessary relevant facts of the case are stated hereunder:- The appellant herein filed Original Application No. 230 of 1981 before the Land Tribunal, Kottayam claiming to be a deemed tenant under Section 4A of the Kerala Land Reforms Act, 1963 (hereinafter referred to as the K.L.R. Act ) read with Kerala Land Reforms Tenancy Rules (for short the Tenancy Rules ) and stating that his uncle had executed a mortgage deed in the year 1909-1910 in favour of the appellant s mother late Smt. Aley 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection of the father of the first respondent was taken in the original application before the Land Tribunal but he was not examined as a witness in support of his claim as he died during the pendency of the case. However, he was examined as a witness before the Land Tribunal in the previous O.A. No. 531 of 1975. In his deposition he has clearly stated that the possession and enjoyment of the disputed property was by the appellant herein. The said deposition is marked as Exh.A8 before the Land Tribunal. 5. The Appellate Authority after referring to the registered mortgage deed which is marked as Exh.A1, has recorded the finding of fact holding that the property involved in the original application of the appellant has been in his possession and enjoyment of the appellant 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 corroborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court raising certain questions of law. Mr. M.T. George, the learned counsel for the appellant has contended that the High Court exceeded its jurisdiction under Section 103 of K.L.R. Act in as much as there is a failure to decide any question of law and has rendered an erroneous decision on the question of law framed by the appellate authority. He further urged another legal contention that the High Court was not justified in interfering with the orders of the Land Tribunal and the Appellate Authority, both on the factual and legal question which was not agitated by the first respondent before the Land Tribunal and the Appellate Authority. Further, the High Court was not justified in reversing the orders of the Land Tribunal as well as the Appellate Authority, when 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be for a period of not less than 50 years and Section 4A does not demand that the mortgagee has to be put in possession under the mortgage deed itself. Therefore, the finding of the High Court in the impugned order that no possession of the land in question was given under the document is an unwarranted finding which is outside the scope of revisional jurisdiction while examining the correctness of the concurrent finding on the contentious issue. 7. This appeal is strongly opposed by the first respondent s counsel who sought to justify the correctness of the finding recorded by the High Court in its order in exercise of its revisional jurisdiction after noticing the pleadings and documentary evidence on record. The first respondent, in her counter affidavit and 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 lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the property covered by Ex. A1-mortgage deed was in the exclusive possession and enjoyment of the appellant s father. It was contended by the learned counsel that this aspect of the matter has not been considered by the Land Tribunal and the Appellate Authority. Further, it is urged that the appellant and the first respondent are children of the deceased Mathai Mathai, though they are only half-brother and sister being born to two different mothers. Therefore, the first respondent is also one of the legal heirs and entitled to inherit the property of her father but the appellant utilizing or misusing the position as a mighty man with muscle power managed to get oral evidence in his favour though there was no documentary evidence supporting his claim and he has tried to grab 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.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of infancy is incompetent to contract, cannot make a contract within the meaning of the Act In the later part of the same paragraph, it is stated, The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant. Their Lordships are therefore of opinion that in the present case there is not any such voidable contract as is dealt with in section 64. Thus, it was held that a minor cannot be a contracting party, as a minor is not competent to contract as per Section 11 of the Indian Contract Act. At this juncture, it is also necessary to extract Sections 2 and 11 of the Indian Contract Act, 1872 which read as under:- 2.Interpretation-clause. In this Act the following words and expressions 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 sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts have held that a minor can be a mortgagee as it is transfer of property in the interest of the minor. We feel that this is an erroneous application of the law keeping in mind the decision of the Privy Council in Mohori Bibee s case (supra). 10. As per the Indian Contract Act,1872 it is clearly stated that for an agreement to become a contract, the parties must be competent to contract, wherein age of majority is a condition for competency. A deed of mortgage is a contract and we cannot hold that a mortgage in the name of a minor is valid, simply because it is in the interests of the minor unless she is represented by her natural guardian or guardian appointed by the court. The law cannot be read differently for a minor who is a mortgagor and a minor who is a mortgagee as there are rights and liabilities in respect of the immovable property would 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age-money. It is clear that in the present case, it is a simple mortgage and not a usufructuary mortgage. Here, it is relevant to mention the case of Pratap Singh @ Babu Ram Anr. v. Deputy Director of Consolidation, Mainpuri Ors.(2000) 4 SCC 614, wherein this Court held as under :- In the case of possessory or usufructuary mortgage, possession is delivered to the mortgagee. Delivery of possession to the mortgagee is a sine qua non of such a mortgage. It is delivered in terms of the mortgage by the mortgagor of his own volition to the mortgagee. The mortgagee gets possession over the land only because it has been delivered to him in terms of the mortgage deed which equally binds him. Thus, it is apparent that if a mortgage needs to be a usufructuary mortgage, possession has to be delivered under the aegis of the mortgage deed itself. Further, as per section 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 documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the fact that after Exh.A1-mortgage deed was executed by the mortgagor in the name of the deceased mother of the appellant, her name was entered in the revenue records as the mortgagee in possession of the mortgagor s property covered in Exh. A1, and in this regard no piece of evidence has been produced to establish this fact which would have been material documentary evidence. But on the other hand, the Land Tribunal and the Appellate Authority have preferred to simply rely on the Revenue Inspector s report as well as the deposition of the father of the first respondent and the appellant as per Exh.A8 in the proceedings in O.A. No. 531 of 1975 in order to hold that the appellant was in possession as the mortgagee. Even assuming the said document Exh.A8 deposition of the father is taken on record as evidence under Section 80 of the Evidence Act, the said document at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, we cannot adjudicate upon the ownership of the property. We can only hold that the appellant cannot claim to be a deemed tenant of the land in question under the K.L.R Act and it is open to the parties to litigate on the question of ownership of the property in question before the appropriate authority. We hold that the impugned judgment of the High Court is perfectly legal and valid, and that the orders of the Land Tribunal and Appellate Authority are erroneous for the reason that the facts and legal evidence have been wrongly appreciated and held in favour of the appellant, although it is contrary to the recitals of Exh.A1, as well as the provisions of the Indian Contract Act and the provisions of the Transfer of Property Act. Therefore, the findings and reasons recorded by both the Land Tribunal and the Appellate Authority are erroneous and suffer from error in law for the reasons referred to supra. We answer the point Nos. 2 and 3 against the appellant. Answer to Point No. 4 14. In view of our findings on the point Nos. 1 to 3 against the appellant, we hereby dismiss this appeal and uphold the impugned judgment of the High Court passed in the Civil Revision Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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