CHEMPAKA PILLAI Vs. NADARAJ A PILLAI

JUDGEMENT

(1.) By the preliminary decree for partition, of the properties of a tarwad", as settled by the judgment of the Travancore - Cochin High Court in S. A. No. 690 of 1124, the purchase made by the deceased 43rd defendant of an item of property in execution of the decree in O. S.1239 of 1102 was set aside, subject to a charge in her favour over the property, for the sale amount and for the value of improvements effected by her, and to her right to be in possession till the payment of the amount due to her. In execution of the partition decree, when the 62nd defendant, to whom apart of the property was allotted on partition, attempted to obtain possession, a dispute arose between him and the 68th defendant who was impleaded as the legal representative of the 43rd defendant, and is the appellant here, as to the value of improvements payable to the latter. A commission which Was issued, assessed the value of improvements according to the customary method, i. e., irrespective of the provisions of the Kerala Compensation for Tenants Improvements Act, Act XXIX of 1958, or shortly the Act. The appellant however claimed to be a "tenant" within the meaning of the definition of the term in S.2 (d) of the Act, and insisted, that the improvements ought to be valued pursuant to the provisions of the Act. The courts below have negatived the claim.

(2.) The only point to be decided in the appeal is, whether the 43rd defendant was a "tenant" under the Act. In the courts below, this contention was founded on S.2 (d) (iii) of the Act, which runs as follows:

(3.) The basic facts have to be kept in view. The hypothecation bond on which the 43rd defendant sued and obtained the decree in 0. S.1239 of 1102 was found to be supported by consideration and necessity, but the purchase by her in execution was held to be invalid, by the judgment in S. A- 690 of 1124. The purchase by the 43rd defendant was evidenced by Ext. V certificate dated the 17th Karkadakam 1106. She thereby became the owner, and reduced the property to her possession, through court delivery, on the 29th Karkadakam, 1107. The judgment in S. A. 690 of 1124 was pronounced several years later, on the 20th October 1953.