VARKEY PAILY Vs. KURIAN AUGUSTHY

JUDGEMENT

(1.) On 14 2 1953, the appellant obtained a preliminary decree for partition, redemption, and separate possession of his half share of the mortgaged property from the hands of his coowner, the predecessor of the respondents who, having redeemed the mortgage, was in possession. The decree determined the appellant's share of the mortgage money at Rs. 31/- and odd and required him to deposit this amount before seeking possession. It also provided that he would be entitled to mesne profits in respect of his half share at a specified rate from the date of the deposit until delivery of possession or until three years after the passing of the final decree, whichever event happened earlier. The appellant made the deposit on 23 10 54, and, that being the price of redemption fixed by the court, the mortgage came to an end see Prithi Nath v. Suraj Ahir AIR 1963 SC 1041 . Therefore, the possession of the respondents' predecessor, in so far as the appellant's half share was concerned, was thereafter in his capacity as coowner and not in his capacity as a mortgagee by subrogation. On 29 8 1956, the court passed a final decree in the appellant's favour, and, in terms of the preliminary decree, awarded him mesne profits from 23 10 1954 until delivery of possession, or until three years from the date of the final decree, whichever was earlier. Sometime after the deposit on 23 10 1.954 it is not clear whether it was before or after the passing of the final decree on 29 8 1956. but that is of no consequence the predecessor of the respondents effected an improvement in the property in the shape of a bund, and, when, on 23 9 1957, the appellant applied to the executing court for delivery, he came forward with an application under S.5(3) of (T. C.) Act 10 of 1956 for a variation of the decree by awarding his compensation for this improvement. (He died pending the application and the respondents came on record as his legal representatives). This application was allowed on 20 8 1959 by which date (Kerala) Act 29 of 1958 had replaced (T. C.) Act 10 of 1956. The improvement was valued at Rs. 103.62 and the final decree was varied by requiring the appellant to make a further deposit of this sum before taking possession. The provision for mesne profits from 23 10 1954 made in the final decree was, however, left untouched. On 4 9 1959 the appellant made the further deposit, and, on 18 9 1959, he obtained delivery. Then, in execution of his decree for mesne profits, he attached the amount in deposit whereupon the respondents brought the application out of which this appeal arises. They prayed for a raising of the attachment on the ground that, by reason of the provisions of Act 29 of 1958, they could be under no liability for mesne profits until the further deposit was mad e on 4 9 1959, their possession (and that of their predecessor) until then not being wrongful possession but possession authorised by the Act. (Of course, if that be so, nothing would be due under the decree since the decree awards mesne profits only upto 29 8 1959 at the most). The first court dismissed the application principally on the ground that an improvement effected after a decree for possession has been passed cannot have the effect of making possession prior to the improvement rightful possession. The appellate court thought otherwise and allowed the respondents' application. Hence this second appeal which has come up before us because doubt was cast on the correctness of the Full Bench ruling of this court in Mathai v. Narayana Pillai 1960 KLT 1192 (F. B.).

(2.) The provisions of Act 10 of 1956 are the same as those of Act 29 of 1958 and it is necessary to refer only to the provisions of the latter Act. The relevant provisions are:

(3.) It will be seen that although for the sake of convenience clause (a) of S.2 (like, for example, Art.67 of the Limitation Act, 1963) uses the word, "tenant" to mean a person in possession after his tenancy has determined, in other words, a quondam tenant, a tenant as defined by clause (d) is a person in possession as a tenant, whether the tenancy be a true tenancy or lease, or what we might call a mortgage tenancy, or what might be described as a constructive or quasi contractual tenancy which are also tenancies within the definition. But the definition, it is important to note, does not take in a quondam tenant.