AMMUKUTTY AMMA Vs. VISWANTHA IYER

JUDGEMENT

(1.) The 1st appellant is the widow of Ramanatha Iyer. He and the rest of the members of his family executed Ext. A1 partition deed on 17-12-1932. Among the items allotted to different sharers as per Ext. A1, Ramanatha Iyer got life interest in the suit properties. It is stipulated therein that on the death of Ramanatha Iyer the suit properties would revert to his brother Balakrishna Iyer. On 19-2-1962, as per Ext. A2, the said Balakrishna Iyer assigned his rights in the suit properties in favour of the plaintiff, who is another brother of the above said persons. But during the life time of Ramanatha Iyer, a lease was created on 5-8-1963 (as per Ext. B1) in favour of his wife (the Ist appellant), leasing out the suit properties for a period of one year. Ramanatha Iyer passed away on 19-5-1975. The present suit has been filed after the death of Ramanatha Iyer for recovery of the suit properties with mesne profits from the Ist appellant and her children. The suit is resisted by the Ist appellant contending, inter alia, that she is entitled to fixity of tenure as per the provisions of the Malabar Tenancy Act, 1929 and that she had obtained a certificate of purchase from the Land Tribunal on an application filed by her as O.A. No. 1023 of 1971. Alternatively she contended that if she is liable to be evicted for any reason, she is entitled to the value of improvements effected by her subsequent to the lease in her favour.

(2.) The court below repelled all her contentions except her claim regarding value of improvements. The suit was decreed with mesne profits at the rate of Rs. 8942/40 per annum from the date of suit. However, the learned Sub Judge found that the Ist appellant is entitled to get the value of improvements made by her from 1956 onwards which was fixed by the lower court as Rs. 13,120/-. Set off was allowed for the said amount in the total quantum of mesne profits due from the Ist appellant.

(3.) The learned counsel for the appellants urged the following contentions in this appeal: (i) The tenancy in favour of the 1st appellant, evidenced by Ext. B1, is protected under S.43 of the Malabar Tenancy Act and hence she has fixity of tenure in the suit properties; (ii) she, being a tenant under Act 29 of 1958, is entitled to continue in possession until the entire value of improvements is paid to her. As a corollary, it is contended that until the payment of the value of improvements the question of mesne profits does not arise; and (iii) even otherwise she is not liable to pay any mesne profits since her possession has never been wrongful.