ASSANKUTTY Vs. CHINDAN

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption of a mortgage. By Ext. A1 dated 22-7-1943 plaintiff mortgaged to the defendants three items of properties of which he handed over possession of one to the mortgagees retaining possession of the other two with him. After the expiry of the term of the mortgage he deposited the mortgage amount in O.P. No. 42 of 1948 of the District Munsiffs Court, Taliparamba, and sought redemption of the mortgage but the defendants declined to accept the amount contending that they were entitled to fixity of tenure and value of certain improvements effected by them. The O. P. was, therefore, dismissed; and so, the plaintiff brought the suit, which has given rise to this second appeal, for redemption of the mortgage and recovery of possession of the property of which possession had been given to the mortgagees. This was the third item in Ext. Al and the plaint schedule. It is a shop building and the premises appurtenant thereto, the site of the building and the premises together measuring 14 x 4 1/2 koles (the length of the kole is given as 6 feet at the top of the column in the schedule in Ext. Al for measurements)

(2.) The defendants main contention in the suit was that they were entitled to get value of improvements, and they claimed Rs. 1000/- on account of the improvements to the building made by them. These alleged improvements consist of certain alterations made and amenities added to the shop building. A commissioner deputed by the first court assessed the value of improvements at Rs. 345-9-10, Ext. Cl being his report. Deducting a sum of Rs. 9/- from this amount the first court awarded Rs. 336-9-10 to the defendants as value of improvements and directed the plaintiff to deposit in court that amount also in addition to the amount of Rs. 3000/- which he had already deposited on account of the mortgage amount.

(3.) Against the first courts decree defendants 2 to 4 filed an appeal in the District Court of North Malabar claiming enhancement of the value of improvements. Since his case in regard to the value of improvements was that the mortgagees were not entitled to any value of improvements under law, plaintiff also filed a memorandum of objections. The learned District Judge at first dismissed the appeal and the memorandum of objections holding that they had abated. In second appeal the High Court of Madras set aside the decision of the District Judge and remanded the case to the District Court for hearing and fresh disposal; and after the remand, the District Judge dismissed the defendants appeal and allowed the plaintiffs memorandum of objections holding that the improvements in question would not fall under S.63A(2) of the Transfer of Property Act and were not such as to make the mortgagor liable to pay, or the mortgagees entitled to get, the costs of the same under S.63A(1) and (2). The case of the defendants was that they were entitled to get value of improvements not only under the Transfer of Property Act but also under the Malabar Compensation for Tenants Improvements Act, I of 1900, and that the parties had further entered into an agreement by which the mortgagees were authorised to effect the improvements in question. At the time of hearing in the District Court it was conceded by the appellants counsel that the provisions of the Malabar Compensation for Tenants Improvements Act would not apply to the case. So far as the agreement alleged was concerned, the learned District Judge found that there was no agreement as contended by the defendants. He held further that the deposit of the mortgage amount made by the plaintiff was proper and the refusal of the defendants to accept the same improper and that they were therefore liable to the plaintiff for the mesne profits of plaint item 3 and also to pay his costs. Defendants have, therefore, filed this second appeal.