KARUNAKARAN NAIR Vs. ANNAMMA

JUDGEMENT

(1.) This appeal filed by plaintiffs 1 to 3 and continued after the death of the 2nd plaintiff by his legal representative impleaded as the 4th appellant, is directed against the final judgment in a suit for the redemption of a mortgage. The suit comprised two items of properties, survey No. 904/1, 32 acres in extent and survey No. 904/2, 3 and odd acres in extent. The preliminary decree for redemption passed by the Second Judge on the 19th March, 1951, allowed redemption of both items; in appeal, the High Court allowed redemption of only survey No. 904/1. A commissioner assessed the value of improvements in survey No. 904/1 by two reports at Rs. 197849-1-5. This has now been decreed by the Subordinate Judge to be the value of improvements payable for redemption. The correctness of this amount and the liability to pay it in the event of redemption, were not challenged before me by the plaintiffs. In the lower court the plaintiffs had taken a point under S.51 of the Transfer or Property Act, that they may be allowed to exercise the option of selling their interest in the property to the mortgagee, the 6th defendant, at the market value thereof irrespective of the value of improvements. The point was overruled as not warranted by the terms of the preliminary decree. In this appeal, it was argued for the plaintiffs, that after the preliminary decree, improvements to the value of Rs. 96980/- as estimated by the commissioner have been made on the property and that thereby the plaintiffs have virtually been improved out of the mortgaged property, and that they may therefore be permitted to exercise the option under S.51, and the reliefs moulded, in view of the altered circumstances. In answer to this, for the 6th defendant two objections were raised, first that the provisions of the Kerala Compensation for Tenants Improvements Act, 1958, Act 29 of 1958 and S.51 of the Transfer of Property Act, cannot stand together and that the former must prevail over the latter, the plaintiffs being therefore liable to pay the value of all improvements, and second, that in view of the preliminary decree allowing redemption and directing the assessment of the value of improvements, the plaintiff's, are barred from agitating the point.

(2.) I see no conflict between the provisions in Act 29 of 1958 and S.51 of the Transfer of Property Act. I say so for two reasons. The first is, that the provisions in Act 29 of 1958 are intended to regulate the rights of parties in respect of the value of improvements in the event of eviction being ordered, while by S.51 of the other Act, an option for the sale of the property is conferred as an alternative to and in substitution of the relief of redemption. The second reason is that the concerned provisions in Act 29 of 1958 and S.51 in the Transfer of Property Act operate in different fields, for S.51 applies to a transferee of property who makes improvements on the property, believing in good faith that he is absolutely entitled thereto, while the definition of a tenant in S.2(d) of Act 29 of 1958 whose rights are governed by this Act, excluding those parts of the definition which are not germane to the present purpose, includes, in the latter part of clause (i) a person who in good faith believes himself to be a mortgagee, and in clause (iii) "a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements." A person who believes that he is absolutely entitled to the property is not a tenant within the meaning of Act 29 of 1958. For the above reasons, I cannot find my way to accept the contention of the learned counsel for the 6th defendant, that the provisions of Act 29 of 1958 must be held to supersede the provision in S.51 of the Transfer of Property Act.

(3.) The preliminary decree can be held to have adjudged only the right of the plaintiffs to redeem, or in other words, the liability of the 6th defendant to be redeemed. More than this cannot be read into it. The mortgage is not extinguished thereby and even if it becomes merged in the final decree, a second suit for redemption is not barred. It is however unnecessary to go to this length. The suit did not terminate with the passing of the preliminary decree and continued to be pending till the final decree was passed. In a proper case the plaintiff may be allowed to amend his pleading after the preliminary decree and to avail himself of an additional right within the framework of the suit. An event subsequent to the institution of the suit may be taken note of in moulding the reliefs. The making of improvements to the tune of over Rs. 96000/- may be held to be an event subsequent to the passing of the preliminary decree. In my view, by adjudging the right of the plaintiffs to redeem in the preliminary decree, they are not precluded from taking the point under S.51 before the final decree is passed. The finding on issue 14 was only that the value of improvements may be assessed before passing the final decree. This too does not conclude the plaintiffs. I overrule the two objections.