LexMATHAI MATHAI versus JOSEPH MARY @ MARYKKUTIY JOSEPH & ORS.
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[2014] 5 S.C.R. 621 MATHAI MATHAI v. JOSEPH MARY @ MARYKKUTIY JOSEPH & ORS. (Civil Appeal No. 4479 of 2007) · APRIL 25, 2014 [GYAN SUDHA MISRA AND V. GOPALA GOWDA, JJ.] Kera/a Land Reforms Act, 1963: · A B s.4A - O.A. by appellant claiming himself entitled to get c purchase certificate, as a deemed tenant - Possession of land claimed by appellant through mortgage-deed executed in favour of his deceased mother - Mortgage deed stated to have been executed as a collateral security for dowry amount - Held: The mortgage deed relied upon by appellant is not a o valid mortgage deed in respect of the property covered in the said document as mortgagee at the 'time of execution and registration of the document was a minor, aged 15 years, and she was not represented by her natural guardian to constitute the document as valid - Concurrent finding of fact of the E appellate authority that the appellant has proved his claim as a deemed tenant uls 4A of K.L.R. Act and he is entitled to get purchase certificate in respect of the property in question is not only an erroneous finding but suffers from error in law and it has been rightly set aside by High Court by recording a finding that appellant's possession is not that of a mortgagee F under the mortgage deed - It is open to parties to litigate before appropriate court with regard to ownership rights of the property under the relevant provisions of law - Contract Act, · 1872 - s.11. Mortgage: Mortgage in the name of a minor - Held: An agreement to become a contract, the parties must be competent to · . . G 621 H 622 SUPREME COURT REPORTS (2014) 5 S.C.R. A contract; wherein age of majority is a condition for competency - A deed of mortgage is a contract and it cannot be held 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 - B Therefore, the mortgage deed is void ab initio in law and appellant cannot claim any rights under it- Contract Act, 1872 - s.11. Mortgage - Deed of mortgage executed as a collateral C security for dowry amount - Held: From recitals_ of mortgage deed it is evident that it is a simple mortgage and not usufructuary mortgage - Merely the fact that mortgagee happened to be in possession of mortgaged property will not make it sufficient to rule that he/she was a mortgagee in possession under the deed - Further, there is no recital in the D \deed inqicating delivery of possession of the land to the mortgagee - Transfer of Property Act, 1882 - s. 53(b) and (d) . . The appellant filed O.A No. 230 of 1981 before the Land Tribunal, claiming to be a deemed tenant u/s 4A of E the Kerala Land Reforms Act, 1963 "the K.L.R. Act" read with Kerala Land Reforms Tenancy Rules and stating that a mortgage deed in favour of his mother by his uncle was executed in the year 1909-1910 as a collateral security for the dowry amount. The appellant's case was that hrs F mother was in continuous possession of the suit land as a mortgagee from the date of execution of the mortgage deed for more than 50 years as on the date of the commencement of the K.L.R. Act immediately preceding the commencement of the Kerala Land Reforms G (Amendment) Act, 1969. He claimed that he should be regis.tered as deemed tenant in respect of the suit land. The father of the appellant opposed the claim. The Land Tribunal held that the appellant was a deemed tenant u/s 4A of the K.L.R. Act and therefore, he was entitled to get H the purchase certificate. The appeal fjled by the first £·'._. ~ ,,, .. _ '.·' MATHAI MATHAI v. JOSEPH. MARY @ MARYKKUTTY 623 JOSEPH respondent and others was dismissed by the appellate A authority. However, the High Court allowed the revision petition filed by the first respondent and rejected O.A No. 230 of 1981 filed by the appellant. In the instant appeal, the following points arose for 8 consideration of the Court:- (1) "Whether Ext.A 1, the mortgage deed dated 1909-1910 is a valid mortgage deed andeven if it is so, whether it is a simple or usufructuary mortgage in terms of Sections 58(b) and 58(d) C 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 0 on record and in accordance with law? (3) Whether the finding recorded in t
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