BALAKRISHNA NAIKA Vs. MAHALINGA BHATTA

JUDGEMENT

(1.) This appeal by the mortgagee-defendants against a decree for the redemption of a usufructuary mortgage is confined to the quantum of compensation payable for improvements effected by them. They claimed as much as Rs. 12,000 on this account, but the court below awarded them only Rs. 3087-12-0, and in appeal they asked for Rs. 1652-10. more.

(2.) It is sufficient to state only such of the facts as are necessary for considering the objections taken. Ext. B1, the mortgage in question was of the date 15-11-1932. Although the mortgage was a usufructuary mortgage the mortgagors continued in possession under a contemporaneous lease back, Ext. B17. Subsequently the mortgagee filed a suit in ejectment, and in execution of the decree therein, took possession of the properties from the mortgagors on 14-7-1940. (Thereafter he transferred his rights to the present mortgagees). The court below disallowed the mortgagees claim to compensation in respect of all improvements effected before 14-7-1940 on the patently proper ground that they were improvements effected by the mortgagors and not by the mortgagees. It is nevertheless argued before us that the mortgagors were in possession, not as owners of the property, but as tenants under the mortgagee and that their improvements during the tenancy stand on no different footing from improvements effected by a stranger tenant under a mortgagee in which latter case there can be no doubt that the mortgagee would be entitled to claim compensation from the mortgagor irrespective of whether or not he had, in his turn, paid compensation to his tenant. We are unable to agree. The claim for compensation in this case is founded on the express terms of Ext. B1 and not under the customary law (not that the customary law would countenance the argument advanced) and what Ext. B1 says is that the mortgagee would be entitled to compensation for improvements effected by him. This must be read along with the lease back under which the mortgagors remained in possession so that there could be no question of the mortgagee effecting any improvements until the determination of the lease, and the clause entitling the mortgagee to compensation can only be read as meaning compensation for improvements effected by him after obtaining actual possession and as excluding improvements effected by the mortgagors who remained in possession though in a different character. It could never have been the intention of the parties that, at the time of redemption, the mortgagors should pay for improvements effected by themselves, and driven to its logical conclusion the argument advanced on behalf of the appellants would mean that, even if the mortgagors had continued in possession under the lease right up to the time of redemption, they would nevertheless be liable to pay compensation for the improvements they themselves had effected. It is not the case that the mortgagee effected any improvements while the mortgagors were in possession, and that the parties themselves did not think that the mortgagees could put forward such a claim as is now put forward on their behalf is apparent from the circumstance that no compensation was offered to the mortgagor-tenants or demanded by them when the mortgagee took possession on determination of the lease. The court below was perfectly right in denying compensation to the mortgagees for improvements effected before 14-7-1940.

(3.) The next objection taken is that the arriving at the rate of compensation payable for areca and other trees, the court below relied upon Ext. A8, the report of a commission appointed, not in the present suit, but in a prior proceeding between the parties under S.19 of the Madras Act IV of 1938 and to which report the mortgagees had even then objected on the ground that the rates were too low. Generally speaking the rates in Ext. A8 are lower than the rates allowed in Ext. B13 and Ext. B14 the reports of the commissioner appointed in the present suit, and generally speaking the lower court followed a middle course and adopted rates more or less midway between the two. It is said, and quite rightly, that Ext. A8 is not evidence in the present case, the commissioner who submitted that report not having been examined as a witness. But we find that Ext. A8 was marked by consent and there being no question of proof of the document (Ext. A8 being a certified copy of the original report), it is to be presumed that this marking by consent meant that both parties agreed that the report may be treated as evidence in the present case. Ext. A8 was prepared in January 1951. The present suit was instituted in April 1951, three months later, and Ext. A8 is near enough to the suit to be of value if it can be used as evidence. This apart, the commissioner appointed in the present suit has given no data whatsoever for the rates adopted by him. They are more or less arbitrary, and in the absence of definite data or evidence, one way or the other, we think that the Trial Court was entitled to adopt the rates which it considered reasonable.