RAMACHANDRA IYER Vs. HARIHARASUBRAMANIA IYER

JUDGEMENT

(1.) IN this appeal by the second defendant,which arises out of a suit for the redemption of a mortgasge,Ext.A,of the year 1114,executed by the plaintiff and his mother,the second plaintiff,to the mother of the defendants,two questions arise for determination,first relating to the decree for mesne profits,and second relating to the decree for improvements.A transferee of about 43 cents of the mortgaged property from the plaintiffs,has been impleaded on his application as the sixth respondent in this appeal and he has preferred a cross -objection to the decree awarding value of improvements.A preliminary objection,to be disposed of presently,was taken to the competency of the cross -objection by the learned counsel for the third respondent -first -defendant;that,as a transferee,pending suit,he had no right of appeal,except perhaps with the leave of the court,that a cross -objection too cannot be maintained without such leave,and that no leave could be granted in the circumstances of the case.The learned counsel relied upon a number of decided cases,which have held,that a party not on record,cannot prefer an appeal,except with the leave of the court.It is however unnecessary to consider them,in view of the latest pronouncement of the Supreme Court in Sm.Sail Bala Dassi v Sm.Nirmala Sundari Dassi(A.I.R.1958 S.C.394)In that case,the appeal to the High Court was preferred by the second respondent in the Supreme Court against an order,that the execution of the decree was not barred by limitation.Pending the appeal,the second respondent made a settlement of the claim with the first -respondent -decree holder at a stated amount.Before the appeal was preferred,the second respondent had transferred the property under the decree in favour of the appellants in the Supreme Court,who petitioned to the High Court,that she may be substituted in the place of the second respondent as the appellant or in the alternative,be brought on record as additional appellant.Her petition was dismissed by the High Court,and the matter came up before the Supreme Court,where an objection was taken,that,not having been brought on record in the suit and the transfer in her favour having taken place before the appeal was filed and pending the suit,Order 22,Rule 10,C.P.C .,cannot be invoked by her in support of her petition.Their Lordships however considered the matter under section 146,C.P.C.and held,that the appellant was entitled by virtue of section 146 to prefer an appeal,and therefore,also to continue the appeal.They observed: â € Whoever is entitled to be but has not been brought on record under Order 22,Rule 10 in a pending sit or proceeding would be entitled to prefer an appeal against the decree or order passed therein,if his assignor could have filed such an appeal,there being no prohibition against it in the Code,and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgmentâ € ¦Ã¢ € ¦.. â €  This is sufficient authority for me to hold,that the sixth respondent was entitled to prefer an appeal by virtue of Section 146,and no question of leave arises;if so it is not open to doubt,that he is equally entitled to prefer a cross -objection.It was stated,that there is a provision in the document of transfer in favour of the sixth respondent,that his transferors would conduct this litigation and they have provided sufficient indemnity for the purposes,but this does not take away the right of the sixth respondent to prefer an appeal under law.The preliminary objection has therefore to be over -ruled.

(2.) THE plaintiffs have already assigned away their rights in respect of all,but half -an -acre of the mortgaged property,and have possession of only that area.The learned counsel for the sixth respondent pressed before me,that the entire decree may be re -opened or modified at his instance even in favour of the plaintiffs who have not preferred an appeal,and of their alienees who have not chosen to come on record.It is more than doubtful,whether the power of the appellate court can be exercised on behalf of those who are not on record.In any case,granting that there is a discretion in the Court,so to interfere with the decree,I am not convinced,that this is a fit case in which such discretion should be exercised in favour of the plaintiffs and their -alienees.On behalf of the second defendant -appellant,his learned counsel Shri Mathew Muricken has agreed before me,that if the present appeal is confined to the individual rights which the sixth respondent may have in the mortgaged property,the second defendant does not press the appeal with regard to the claim for additional value of improvements and mesne profits.I hold,that the cross -objection preferred by the sixth respondent has to be limited only to his individual rights with reference to the area of 43 cents in which he is interested and these relate to the claim made by the defendants for the value of improvements and for mesne profits.

(3.) THE strongest piece of evidence,that the defendants had relied on,was Ext.II a letter of the year 1116,stated to have been written by the first plaintiff and signed by Rajappa Iyer,and in which there is an admission,that the defendants had advanced funds for the construction of the buildings.Although,as noticed,the written statement had referred to a receipt as having been passed by Rajappa Iyer and this had been denied in the replication,Ext.A was not put into Court until December 15,1955.Afterwards,in cross -examination when confronted with Ext.II,the first plaintiff admitted,his having written it and Rajappa Iyer having signed it,but he still maintained,that the building were put up by the plaintiffs and not by the mortgagee or by Rajappa Iyer,explaining in re -examination that Ext.II was written under some sort of coercion practiced by the mortgagee.The plea of coercion being unsustainable,Ext.II,as an admission,may be binding on the plaintiffs,but not on the sixth respondent,whose assignment was earlier than the plaintiffs,admission.The broad circumstances pointed out above do show,that Ext.II must have been brought into existence in collusion by the plaintiffs and defendants.The burden of proof is on the mortgagee to establish,that she advanced funds to Rajappa Iyer for making the improvements,even if the plaintiffsâ € ™ case,that they were in possession under the lease is rejected.Motive for collusion cannot always be proved by direct evidence but may be inferred from facts and circumstances.The personal undertaking said to have been given by the plaintiffs in the assignment to the sixth respondent,to indemnify him against any possible loss on account of this litigation is not sufficient to rule out the possibility of collusion in bringing about Ext.II.I therefore come to the conclusion,that Ext.II cannot be relied on against the sixth respondent,and the claim of the mortgagee for the value of improvements has not been established against him.