CHEERAMMA Vs. KARTHIYANI

JUDGEMENT

(1.) THE plaintiff obtained a decree for redemption of a mortgage in the court of first instance on 29-2-1952. THE mortgage deed, Ext. A, recited a contract between the parties negativing the mortgagees' right to claim compensation, at redemption for any improvements on the properties mortgaged. Accepting the contract as binding the parties, the trial court disallowed compensation for mortgagees' improvements on the properties though it found improvements worth Rs. 177/ -. THE defendants appealed to the District court, Alleppey, on the question of their right to compensation for improvements effected on the properties, but did not challenge the decree for possession to the plaintiff. While the appeal was pending in the lower appellate court, the plaintiff executed the decree of the trial court and entered possession of the properties evicting the mortgagees therefrom. Before disposal of the appeal in the District Court, the Travancore-Cochin compensation for Tenants' Improvements Act, X of 1956, came into force on 31-10-1956; and the mortgagee moved a petition on 13-2-1957 claiming compensation under the provisions of that Act. It was contested by the plaintiff, but was allowed by the Additional District Judge. Hence this second appeal by the plaintiff.

(2.) BEFORE the enactment of Act X of 1956, the right to compensation for improvements was recognised in the Travancore area as an equitable right of a person to be compensated for his special exertions which have increased the value of the property permanently. In Govinda Menon v. The dewan (19 T. L. J. 589, 595) it is declared: "the right to compensation for valuable improvements effected on property is an equitable right based upon the maxim that he who will have equity must do equity. " And, in Avira Tharakan v. Nilakantan (28 Trav. L. R. 129,133) Muthunayagam Pillai, J. explained the underlying principle in the words of Jessel M. R. in Sheperd v. Jones (21 Ch. D. 469, 478) "it is plain, on ordinary principles of justice, that the increase should not go into the pocket of the mortgagor without his paying the sum of money which caused the increase. "

(3.) THE argument is that the expression "nothing in any contract. . . shall take away the right" should be taken disjunctively with both the expressions "to make improvements" and "to claim compensation for them", and therefore the mortgagee is now entitled to claim compensation for improvements effected though in contravention of the covenant in the mortgage deed. I do not accept this interpretation of the section. THE Section envisages a primary right, and a remedial right. THE primary right is the right to make improvements and the remedial right is the right to claim compensation for them. THE verbal sense in which the word "claim" is used in the section indicates that it is only used in the remedial sense. THE remedial right to claim compensation for improvements must necessarily depend on the primary right of the party to make improvements on the land, and cannot have an independent existence. Only on establishing the primary right can a question of any remedial right based on such primary right arise; and it is only then that the latter clause in the section would come to any application. THE expression "nothing in any contract entered into before the commencement of this Act shall take away or limit the right" is, by its very terms, an emancipatory provision releasing the tenant or mortgagee from the bondage of the contract and affects the primary right of the tenant "to make improvements" and not the remedial right which has no independent existence apart from the other. THE contention that the expression should be applied disjunctively to each right has therefore no force.