VARU Vs. SANKARAN NAMBOODIRI AND ORS.

JUDGEMENT

(1.) THE 1st Defendant is the Appellant. The suit was to set aside Ext. I mortgage executed by Defendant 3 in favour of Defendant 1 and to recover possession of the plaint property with mesne profits on behalf of the Plaintiff's 'Illom'. The trial Court found that Ext. I contravenes the provisions of Section 9, Cochin Nambudri Act (17 of 1114) and that it is not supported by necessity binding on the 'Illom'. It was, however, of the view that Defendant 1 has effected improvements in the property to the value of Rs. 961 -0 -10. Therefore a decree was given to the Plaintiff to recover possession of the plaint property with mesne profits at the rate of 20 'paras' of paddy per annum as prayed for in the plaint on payment of Rs. 961 -0 -10 to Defendant 1 towards the value of improvements.

(2.) THE Courts below have concurrently found that Ext. I is not valid and binding on the Plaintiff's 'Illom'. Admittedly, Ext. I was executed by Defendant 3 only. He was not the 'karnavan' though it is seen that he was in management of the 'Illom'. The 'karnavan' is not a party to the document. Nor is there anything to show that the document has the written consent of the majority of the major members of the 'Illom'. The document, therefore, clearly contravenes the provisions of Section 9 of Act 17 of 1114. The evidence in the case also shows that it was not executed for any necessity binding on the 'Illom'. In these circumstances the document is not valid and binding on the 'Illom' and it has been rightly set aside by the Courts below.

(3.) IN regard to the question of Defendant 1's right to get value of improvements, we are unable to agree with the views of the lower appellate Court. The improvements claimed are in respect of the reclamation and levelling up of the land and also in respect of the walls put up on two sides of the property. The property is a narrow stretch of paddy land lying adjacent to a public road. It is not denied that in order to ward off the cattle from trespassing into the field a strong fencing or a mud -wall is necessary. The Plaintiff's case is that there was no need to erect permanent walls with stone and mortar. It is, therefore, contended that the walls in question cannot be considered as improvements for which the Plaintiff has to pay. The evidence shows that the walls put up have added to the value of the holding. The construction is consistent with the purpose for which the land was mortgaged, viz., cultivation of paddy.