DAYANANDAN Vs. PARAMESWARA PANICKER

JUDGEMENT

(1.) IN this appeal by the 16th defendant, the legal representative of the deceased 3rd defendant, arising out of a final decree for redemption of a mortgage Ext. B of the year 1086, two questions were urged, first relating to the value of improvements in respect of coconut trees assessed by the lower court at Rs. 3833/-and second, whether improvements from the year 1074, and up to the date of Ext. B ought not to be valued and paid for.

(2.) ON the first question, the District Judge held that the commissioner had valued the coconut trees as prescribed by Act 29 of 1958 on the basis of the average price of coconuts for a period of ten years immediately preceding the institution of the suit, as ascertained from the nirak rates published in the Government Gazette from time to time during the relevant period. The correctness of the rate as so ascertained, is not in dispute. During the pendency of this appeal, a table of prices has been prepared and published under S. 13 (1) (a) of the Act, showing the price of coconuts in ambalapuzha Taluk, where the land is situated, to be Rs. 173/- per 1000. By s. 13 (2) of the Act, the rate specified in the table has to be presumed to be the "proper rate" until the contrary is proved. The proviso to s. 13 (2) reads: "provided that, in so far as such tables prescribe prices, of products, the presumption shall not be rebuttable except by proof of the average price as provided in S. 14". Reading Ss. 13 (2) and 14, the term "proper rate" occurring in S. 13 (2) has reference to "the average price, as nearly as may be ascertainable in the taluk where the land is situated, for a period of ten years immediately preceding the institution of the suit", which under s. 14, has to be adopted as the "money value for the purpose of awarding compensation under sub-section (1) of S. 7. The presumption as to such "proper rate" is rebuttable only on proof of "the average price" and if there is such proof, the presumption will stand rebutted. In this case after enquiry, the judge held as remarked earlier, that the commissioner has ascertained the average price correctly, on the basis of the nirak rates for the ten years, and rejected the contention, that the nirak rates did not correspond to the actuals. The average price so ascertained was rs. 5. 84 per hundred coconuts. It may he noted that the suit was instituted in the year 1121. So the presumption has been rebutted.