MARKOSE Vs. PONNAMMA

JUDGEMENT

(1.) This Second appeal by the first defendant arises in a suit for redemption and raises the only question, whether the cost of reconverting the suitproperty which is now a paddy land into a garden can be allowed. The mortgage deed Ext. A contained a clear stipulation for the enjoyment of the property by the mortgagee by planting trees thereon. The evidence has disclosed, that there were 22 cocoanut trees at or about the time of mortgage. The mortgagee subsequently converted the property into wet land, and now he claims the conversion to be an act of improvement.

(2.) His learned counsel relied on the provisions of the Kerala Compensation for Tenants Improvements Act, 1958 (Act XXIX of 1958) and contended that even the value of improvements is liable to be paid though no such claim has been put forward in the appeal. But the very definition in S.2(b) says that an improvement is a work, which not only adds to the value of the holding and is suitable to it, but it must also be consistent with the purpose for which the holding is mortgaged. On an interpretation of Ext. A, I agree with the lower appellate court in thinking, that the above purpose was for enjoyment of the property by the mortgagee as a garden. If so, the provisions of the Improvements Act cannot be attracted and the case has to be decided on other grounds.

(3.) It was then contended that the conversion must be deemed to be an act of ameliorative waste. Whether this is so or not, it cannot be overlooked that the conversion was contrary to the stipulation in the mortgage. The conversion was an unauthorised act, and the mortgagor has a right to call upon the mortgagee to surrender the mortgaged property in the condition in which he received it. So he can insist upon reconversion. A similar view has been taken by a learned Judge of this Court in Sankaran v. Sankaran Channar ( 1959 KLT 1259 =1960 KLJ 104) in which the matter was considered elaborately both on principle and authority. The learned counsel drew my attention to the decision of the Travancore High Court in Narayani Amma v. Madhavi Amma (IX TLJ 60) where conversion of paddy land into garden was considered to be an act of ameliorative waste. This case was distinguished on various grounds by the same court in the later decision in Kunjan v. Nethran Bhattathiripad (XVIII TLJ 95) in which the costs of reconversion was decreed. It is enough to point out that in the earlier Travancore Case, there was no stipulation in the document as here, as to the nature of the enjoyment by the mortgagee. This in my opinion makes all the difference. For the same reason, it is unnecessary to consider the argument addressed to me based on certain English decisions as to the duty of a tenant to surrender the premises let to him in the state in which he came into possession.