Gopalan Nambiyar, J.
1. This Second Appeal by two of the legal representatives of the deceased 1st defendant (impleaded as Defendants 80 & 81) in a suit for redemption together with amounts due by way of damages and otherwise, has come on before a Full Bench as the constitutional validity of Section 4-A of the Kerala Act 1 of 1964 as amended by Act 35 of 1969 was sought to be raised. But as would appear hereinafter, the vires of the section does not really appear to arise,--at any rate not at the present stage,--and the case has to be disposed of, otherwise than by pronouncement on the constitutional issue.
2. The 68 items of plaint properties covering nearly an extent of 130 acres, and comprising wet lands palliyals, forests, parambas and kudiyiruppus belonging to the plaintiff's tarwad, and were allotted on partition, by the decree in O. S. No. 12 of 1936 to her tavazhi. The main tarwad had mortgaged Items 1 to 67 by Ext. B-116 dated 31-3-1905 for a sum of Rs. 5,000/- to one Pankunny Menon. The gross pattom was fixed at 1800 paras, and after deduction of interest on the mortgage amount and certain other expenses, 400 paras of paddy was payable as net purappad to the mortgagor. This was followed by Ext. A-1 dated 10-8-1906, by which the tarwad proceeded to grant a mortgage to Pankunny Menon of the items covered by Ext. 'B-116 and the additional Item 68. The gross pattom was reckoned 2029 paras of paddy, and re. 1-6-4. 700 paras were to be deducted towards the interest on the mortgage amount. 60 paras were to be appropriated for conducting a 'thanneer panthal' (place where drinking water and butter-milk are supplied to wayfarers); and some paddy was to be appropriated by the mortgagee for payment of revenue and michavaram, and for driage. After these deductions a net purappad of 525 paras,6 narayams, and 3 1/4 nazhies of paddy, and 13 annas and 2 paise was payable to the mortgagor. Pankunny Menon assigned his rights to one Sankaran Nair by a document dated 6-11-1907 (not produced). The assignee haying committed default, his mortgage rights were sold in execution of the decree in O. S. No. 54 of 1919 and purchased by the tarwad Itself under Ext. B-113 dated 9-9-1921. Sankaran Nair seems to have assigned his rights to one Sivarama Pattar, Kariakkar by Ext. B-115 dated 4-9-1922 (it is not contended that this assignment conveyed nothing). The tarwad's rights under Ext. B-113 were also assigned to the said Kariakkar by Ext. B-114 dated 20-12-1924. The Kariakkar assigned his rights to the 1st Defendant by Ext. B-112 dated 24-2-1930. A purakadom (further charge), for Rs. 2,500/- was executed by the tarwad in favour of the 1st Defendant for Rs. 2,500/- by Ext. B-117 dated 22-12-1930. After providing for interest on this further advance, the net purappad payable was reduced to 273 and add paras. A second purakadom. Ext. B-118 dated 30-1-1932, for Rs. 2,500/- was also executed in favour of the 1st Defendant, and after adjusting the interest payable on this fresh advance, the net purappad payable to the mortgagor was further reduced to one para and odd.
3. The plaintiff filed O. P. No. 18 of 1951, in Munsiff's Court Walluvanad under Section 83 of the Transfer of Property Act and deposited Rs. 2,500/- being the further charge or mortgage amount payable under Ext. B-118, and prayed for discharge of the same. But as the 1st Defendant disputed the correctness of the deposit, and the right to redeem Ext. B-118 alone, the petition was dismissed. Ext. A-4 is the certified copy of the petition with the orders thereon, and Ext. A-5 is the counter-affidavit filed by the 1st Defendant. Thereafter the present suit was brought for redemption of all the four mortgages, namely Exts. B-116, A-1, B-117 and B-118 and other reliefs. Redemption has been decreed by both the courts below. In the lower appellate court, and in the grounds of second appeal taken before us, no attack is made against the preliminary decree for redemption as such, the complaint being only in respect of the amounts directed to be paid by and between the parties. By C. M. P. No. 1782 of 1970. the appellants have sought to set aside the decrees of the courts below and to dismiss the suit, by claiming the benefits of Section 4-A of the Act referred to supra.
4. Section 4-A, in so far as it is relevant, reads as follows:--
'4-A Certain mortgagees and lessees of mortgagees to be deemed tenants--
(1) Notwithstanding anything to the contrary contained in any law or in nay contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land snail be deemed to be a tenant if--
(a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969.'
X X X X X X
5. As noticed, the scope of this Second Appeal concerns only the correctness of the amounts, directed to be paid by and between the parties. Act 35 of 1969 which introduced Section 4-A is, to a limited extent, retrospective. Section 108, Clauses (2) and (3) of the said Act which enacts certain transitory provisions reads as follows.--
'108. Transitory provisions.--
(1) x x x x x
(2) Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursuant to which dispossession has not been effected, may, on the application of such person, be reopened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act.
(3) All suits, applications, appeals, revisions, reviews, proceedings in execution of decrees and other proceedings with respect to any matter arising under and provided for by the principal Act pending before courts, tribunals officers or other authorities at the commencement of this section, shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.'
A decree for dispossession has not yet been passed, but only a preliminary decree for redemption. Clause (2) is therefore inapplicable. Clause (3) applies only in respect of appeals with respect to any matter 'arising under and provided for by' the principal Act, viz. Act I of 1964. The scope of the appeals being such as we have defined we see nothing in the subject-matter of the appeal, which can be said to 'arise under and be provided for by' the principal Act. Therefore we find that Section 4-A is unavailable to the appellants, at any rate, at this stage, and no question of its constitutional validity falls for consideration.
6. Even if Section 4-A be available to the appellants, all that it provides is that a mortgagee who remained in possession for the requisite period 'shall be deemed' to be a tenant. This in our opinion, can only be, from the date of the commencement of Act 35 of 1969, namely 1-1-1970. As we understand the section, there is only a super-imposition of the character of a tenant on a mortgagee, not any transmutation of the character of the mortgagee to that of a tenant so as to take effect from the very inception of the transaction. The words of the section itself seem to lend support to this conclusion; for, while it positively says 'shall be deemed to be a tenant' it does not negatively provide 'shall be deemed not to be, or never to have been, a mortgagee.' The antecedent obligations of the mortgagee prior to the superimposition of the status of a tenant have not been jettisoned or got rid of. These therefore continue to be alive and can well be enforced. Limiting the scope of the fiction of deemed tenancy created by the section to the purpose of the enactment, it was meant only to confer fixity of tenure under Section 13 and to enable the purchase of the landlord's rights under Section 72, et seq. Section 25-A of the Act, which enacts a provision for payment of rent in respect of a deemed tenancy, and Section 111-A which provides that the mortgagor shall not be liable to return the mortgage money to such mortgagee or person, afford indication that certain specific obligations have been created or destroyed.
7. But It was said that the relief of accounting as between the mortgagor and mortgagee under Section 76(h) of the Transfer of Property Act is inextricably bound up with the remedy of redemption, and that if this latter be unavailable, as at present by reason of Section 4-A, the relief for accounting must also fall with it. There appears to be several answers to this contention. The mortgagor has, so to say, two remedies, redemption and accounting which may be enforced in one action. If the former becomes unenforceable or cannot be granted from any supervening cause, it does not necessarily follow that the latter also becomes non est. We may refer to the decision in Kanakku Raman Pillai v. Sultan Rowthar, (AIR 1956 Trav-Co 49), where despite the mortgaged property having been lost by revenue sale, a suit for accounting against the mortgagee in respect of the period for which he was in possession was held to be maintainable. The decision in Parukutty Amma v. Naha Haji. (1961 Ker LT 573), which recognised that future rent pendente lite could still be decreed despite the relief for recovery of possession, having become impossibleby reason of supervening statutory provisions since the commencement of the litigation, also proceeds on the same principle.
8. It was then said that the suit, in so far as it relates to the accounting was barred by limitation. But the plea of limitation was never raised at any stage; nor was there any plea, that the defendant is not liable to account. The decisions are indeed numerous which have recognised that there can be no limitation in such cases.
9. Next it was contended that the mortgagee is relieved from accounting under Section 76(h) of the Transfer of Property Act by reason of the provisions of Section 77 thereof. This latter section precludes accounting provided for only under Clauses (b), (d), (g) and (h) of Section 76. Clause (h) thereof provides for an account in respect of gross-receipts but the suit here in question is not on account which has not been settled or for amounts due on taking an unsettled account as in Order VII, Rule 2 of the Civil P. C., but for specified ascertain-able amounts due under the contract between the parties. The specific items covered by the contract which are claimed are enumerated in paragraphs 7 to 10 of the plaint. It is also to be noted that the bar of Section 77 of the Transfer of Property Act applied to the case was not raised at any stage, and should not be allowed to be raised at this stage.
10. We shall now proceed to consider the merits of the claims made by the appellants. They first attacked the finding of the lower appellate court, disagreeing with the trial court that the tender in O. P. No. 18 of 1951 was proper and valid, that interest on the amount of Rs. 2,500/- tendered in court ceased from the date of deposit, and that the pattom payable after the said date would be the enhanced residual rent provided in Ext. B-117, viz. 273 paras and odd, and not one para and odd, as provided in Ext. B-118. Secondly they attacked the remand made by the lower appellate court for the purpose of finding out whether the 'thanneer panthal' had been conducted by the 1st Defendant; and if not, whether he would not be liable to make good for the deduction directed for this purpose from the total pattom at the rate of 60 paras of paddy from the date of default. Thirdly, they objected again, to the remand directed by the lower appellate court for the purpose of finding, as to whether the revenue had been enhanced since the date of Ext. B-118, and if so, whether the enhanced revenue had been paid by the 1st Defendant, or the appellants, so as to entitle them to deductions of theamounts so paid, from the pattom payable. Fourthly and lastly they objected to the finding of the lower appellate court that there was an error in reckoning the net pattom payable under Ext. A-1 which was carried over into the subsequent documents, and on which basis the plaintiff was entitled to relief by claiming an additional 10 paras from the date of the assignment to the 1st Defendant, namely, Ext. B-112 dated 24-2-1930.
11. The right of the plaintiff to enhanced residual pattom at 273 paras and odd, and of the appellants to interest on the mortgage amount of Rupees 2,500/- due under Ext. B-118 which was deposited in O. P. No. 18 of 1951, would both depend upon the correctness and the propriety of the deposit. If the same was proper and valid, and the 1st Defendant was wrong in not accepting the deposit, it follows that from the date of deposit, Ext. B-118 would stand discharged, and the plaintiff would be entitled to the enhanced residual rent under Ext. B-117; and equally, that the defendant would lose interest on the amount deposited. This is precisely what the lower appellate court, disagreeing with the trial court, held; and we think that it was right. We have carefully scanned the recitals in the two purakadom documents Exts. B-117, and B-118. In the first of these, there seems to be a provision in paragraph 11 that all the mortgage amounts should be paid together and that the value of improvements will also be paid along with the mortgage amount. Paragraph 12 of Ext. B-118, has been extracted by the lower appellate court, and we think that the effect of the provisions contained therein have been correctly appreciated. The provision is to the effect that the parties were agreed that the mortgagor may redeem each mortgage separately, or all of them together. This surely does not import any obligation to redeem all mortgages together. Section 61 of the Transfer of Property Act gives the mortgagor the right, in the absence of any contract to the contrary, to redeem any one or more mortgages separately or all of them together. There appears to be such a contract in paragraph 11 of Ext. B-117 but we certainly see none in para-graph 12, of Ext. D-118. On the other hand, the provision therein is specific that the mortgagor had a right of paying off that particular purakadom separately or along with other mortgage amounts, The deposit made in O. P. 18/1951 was therefore correct and proper and the finding of the lower appellate court that from that date interest on the amount deposited ceased and the plaintiff wasentitled to the higher residual rent under Ext B-117, is also correct.
12. The liability of the Defendant to account for the deduction of sixty paras allowed for conducting the 'thanneer panthal' and for paying the enhanced revenue, may next be considered, the net residual rent is arrived at in Ext. B-118 after taking into account this deduction also. The provision is thus really for a mode of discharge of what would otherwise be payable as residual rent to the plaintiff; and if that mode of discharge is not followed, the amount given credit to for that purpose is certainly payable to the plaintiff. As to whether the amount set apart by the document had been applied for that purpose, was a fact specially within the knowledge of the 1st Defendant, and it was for him to establish that fact. The plaintiff summoned production of the 1st Defendant's account books to show whether expenses for conducting the 'thanneer panthal' had been incurred or not. The defendant countered, vaguely alleging that the accounts had been produced in 'other proceedings'. On the ground that there is no specific direction to produce the accounts the lower appellate court held that the defendant should be afforded a further opportunity of producing the same and of substantiating his plea, for which purpose, it directed a remand. The same was the position in regard to the enhanced revenue, (for the revenue payable at the time, certain deductions were allowed to the mortgagee from the gross purappad). The burden of establishing that revenue had been enhanced and that the enhanced revenue had actually been paid, was on the defendant. Of this again, no proof was attempted; and the lower appellate court afforded the 1st defendant another opportunity to do so. Whatever may be the correctness and the propriety of the remand thus directed, we are certain that the appellants can have no grievance at all against the same. And, as for the forcible, but belated plea made by the plaintiff-respondent, that we should invoke our powers under Order 41, Rule 33, of the Civil P. C. and interfere with the order of remand, and hold that the Defendant's claim under these heads had not been substantiated, is enough to say that the plaintiff not having chosen to appeal against order of remand, we do not think the interests of justice dictate such a course.
13. Lastly, we shall deal with the case of relief on the ground of mistake in reckoning the net profits or residual rent, payable under Ext. A-1, which is stated to have been carried over to the other documents. The positionarises this way. In Ext. A-1 the gross pattom is fixed at 2029 paras of paddy. 700 paras were to be deducted as interest on the mortgage amount leaving a balance of 1329 paras. A margin of 92 paras, 7 marayams and 1 1/2 nazhies of paddy was allowed to the mortgagee for driage of paddy at the rate of three fourth para for every ten paras; 520 paras, 6 narayams and 1 1/2 nazhies were allowed to be deducted for payment of cess; 120 paras, for payment of michavaram to jenmi and sixty paras were to be deducted for the 'Thanneer panthal'. The total of these deductions is stated in the document to be 803 paras, 3 narayams and 2? nazhies and on that basis the residual rent is fixed at 525 and odd paras. But it is pointed out that the deductions would total only to 793 and odd paras and not 803 and odd, as stated, and on this basis the correct residual rent should be 535 and odd, and not 525 and odd. This figure for residual rent was carried over to Ext. B-117, and the consequential figure to B-118 and the mistake was perpetuated. In other words while the steps leading to the calculation of residual rent were correct, the ultimate figure arrived at alone was wrong. Counsel for the mortgagee, argued just the other way, viz. that the parties were ad idem with regard to the quantum of residual rent; and so long as that was so, what does it matter to the mortgage whether the mistake occurred at any of the steps in the calculation? In other words, the ultimate figure shown for residual rent was correct, and the mistake if at all, lay in all or any of the steps leading upto it. This was reinforced by pointing out that if the driage were to be reckoned at the rate of three fourth paras per 10 as provided in EXT. A-1, the deduction on this account would come to more than 92 and odd paras stated in the document; and the further fact that the ultimate residual rent in Ext. A-1 was made the basis of reckoning in Ext. B-117. The ultimate residual rent was also being paid and accepted for long, without demur. We are not satisfied as to whether there was any mistake at all in regard to the terms of Ext. A-1 and if so where it lay. For, to uphold this claim, evidence, if admissible at all, should, within the meaning of the first proviso to Section 92 of the Indian Evidence Act, be of any fact 'which would entitle any person to any decree or order' relating to the document (a) in question. That, in turn, would attract Section 31 of the Specific Relief Act 1877 wherein the court has to find it 'clearly proved' that there has been a mistake in framing the instrument. Borrowing the language of Lord Chalmsford in Fowler v. Fowler, ((1859) 45 ER 97) this, 'ought only to be permitted upon evidence of a different intention of the clearest and most satisfactory description'. Lord Thurlow in an earlier English Case of Shelborne v. Inchiquin, ((1784) 1 Bro CC 338) was inclined to use stronger language and to characterise the evidence needed as 'strong' irrefragable evidence'. Lord Chelmsford, in the case noticed, thought that if the word 'irrefragable' was used in its ordinary meaning to describe evidence which cannot be refuted or overthrown, the language would require some qualification, and that it was probable that the expression meant only that the mistake must be proved by something more than the highest degree of probability, and that it must be such as to leave no reasonable doubt upon the mind that the deed does not embody the final intention of the parties. The principle stated by Lord Chelmsford has been applied in a number of Indian decisions (see for instance Rajaram v. Manik, AIR 1952 Nag 90). Whether we go by the principle of the English decisions, or by the language of the Indian Statute, we are satisfied that the requisite proof is wanting, of the mistake pleaded. That relieves us from the duty of considering and pronouncing upon the questions debated at length at the Bar as to whether Sections 91 and 92 are supplementary to each other, whether the one has to be read into the other, whether the first proviso to Section 92 has to be read into Section 91 also, and whether, if a suit for rectification under the Specific Relief Act on the basis of mistake be barred, the same mistake can still be successfully proved under the 1st proviso to Section 92 of the Evidence Act, and so on. We express no opinion on these questions. On the short ground that the mistake has not been satisfactorily proved, we would disallow any relief to the plaintiff on this part of the claim and to that extent, disagree with the finding of the lower appellate court.
14. In the result we modify the judgment and decree of the lower appellate court to the limited extent of holding that the mortgagee is not bound to account for 10 paras of paddy from 24-2-1930 till the date of putting the plaintiff in possession of the properties, as found in paragraph 9 of the appellate court's judgment. Subject to the above modification, we dismiss this Second Appeal. As the appellants have substantially failed in their contentions, they will pay the costs of the contesting respondent and suffer their own.