MARIYAKUTTY CHELLAMMA Vs. KESAVAN SREEDHARAN

JUDGEMENT

(1.) The first defendant in a suit for redemption of a mortgage of the year 1095 M.E. is the appellant in the second appeal. A preliminary decree was passed in the suit on 07.10.1966 allowing redemption, after ascertaining the value of improvements. Plaintiffs 2 and 3 later preferred an application for passing of the final decree in the matter. Defendants 1 and 2 raised objection to the said application contending that the value of improvements as determined by the Advocate Commissioner appointed in the suit is inadequate and that they are entitled to fixity in terms of Section 4A(1)(c) of the Kerala Land Reforms Act, 1963 ('the Act') as the land comprised in the mortgage was a waste land at the time of mortgage and they have effected substantial improvements in the mortgage holding before the commencement of the Kerala Land Reforms (Amendment) Act, 1969. The trial court found that the defendants have not demonstrated that the value of improvements as assessed by the Advocate Commissioner does not represent the adequate value of the improvements made by them in the property. The trial court also found that defendants 1 and 2 have not established that they are entitled to fixity in terms of Section 4A(1)(c) of the Act. Accordingly, a final decree was passed allowing the plaintiffs to redeem and recover possession of the mortgaged property on deposit of the value of improvements as assessed by the Advocate Commissioner. Defendants 1 and 2 challenged the decision of the trial court in appeal. The appellate court, on a re-appraisal of the materials on record, affirmed the decision of the trial court. The first defendant is aggrieved by the final decree passed in the suit as affirmed in appeal.

(2.) Heard the learned counsel for the appellant as also the learned counsel for the respondents.

(3.) The learned counsel for the appellant contended that the findings rendered by the courts below that defendants 1 and 2 are not entitled to fixity in terms of Section 4A(1)(c) of the Act are incorrect and unsustainable. According to the learned counsel, the benefit of the aforesaid provision cannot be denied merely for the reason that there were a few trees in the property. It was contended that in the light of Explanation VII to Section 4A(1) of the Act, existence of scattered trees in the mortgage holding is no ground to decline the benefit of the above statutory provision.