UMMINI VASAVAN Vs. VAIRAVAN SARASWATHI

JUDGEMENT

(1.) THE appellant is the 2nd defendant in a decree for redemption, which relegated assessment of compensation for improvements to execution. The decree -holder, applying for execution, moved for a commission to assess improvements. Two items only in the commissioner's report form the subject matter of this appeal: the first is a drain across the mortgaged property, of which the cost is estimated by the commissioner at Rs. 500/ -, But the time of opening could not be assessed by him; and the second 94 coconut palms and 10 jack -trees extant at the time of the mortgage for which the Commissioner assessed compensation under Section 11 of the Kerala Compensation for Tenants Improvements Act, XXIX of 1958 - -hereinafter 'the Act' - -read along with the table published by the Government under Section 13(1)(b)(iii) of the Act (Vide 1961 K.L.T. (Rules & Notifications) 138). The Courts below concurred to negative compensation for both these items. Hence this second appeal. The primary burden to prove existence of improvement on the property in possession of the mortgagee, for which compensation is due to him, is on the mortgagee. Mere presence of a drain across the land, without proof that it is a work of the mortgagee beneficial to the property, will not show it to be an item of improvement. The mortgagee has given no evidence in this regard. As observed by the Privy Council in Radha Krishnan v. Khrushed Hossein (A.I.R. 1920 P.C. 81, 83), "of things that do not appear and things that do not exist the reckoning in a Court of law is the same". Things not proved have therefore to be taken as non -existent for purposes of adjudication. Further, the observation of the Courts below, that the name of the property as "Ovuthalachal purayidom" - -'Ovu' and 'Chal' both denote a channel in vernacular - - is indicative of a drainage channel in the property even before the land registration, appears right. The Courts below were therefore justified in not awarding cost of the drain to the mortgagee.

(2.) AS regards the coconut palms and jack trees extant on the property at the time of the mortgage: The following sections of the Act have to be read:

(3.) COUNSEL stressed the presumption embodied in Section 3 and urged that protection and maintenance of fruit trees has always to be reckoned as improvement for which compensation is payable, unless the redeemer proves the contrary. This construction of Section 3 does not appear correct. "It is a well -settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them" (Sanjeevayya v. Election Tribunal, Andhra Pradesh - -A.I.R. 1967 S.C. 1211, (sic)). Section 3 has therefore to be read along and consistently with Section 2(b) of the Act; it cannot be read in such a way as to render the exclusion of ordinary operations of husbandry meaningless. Section 2(b) defines improvement as "any work or the product of a work", and Section 3 enumerates several items of "works or the products of such works" that may presumably be improvements. Section 3 is thus a clarification or clarificatory categorisation, and not a supersession of the definition in Section 2(b). Reading Section 3 in harmony with Section 2(b), it is clear that a work enumerated in Section 3 cannot be reckoned as an improvement if it amounts only to an "ordinary operation of husbandry". Of course, the burden of showing any work mentioned in Section 3 and seen done in the mortgaged property to be 'ordinary operation of husbandry' is laid on the person seeking redemption; but if the nature of the work done, is self -evident on the point that burden may well be taken as discharged. Thus, the construction of boundary bunds on the four sides of a paddy field to keep water for the wet cultivation therein, which is an ordinary operation of husbandry, cannot be an improvement within the meaning of Section 3(b) "the construction of other works for the storage of water for agricultural purposes". I am afraid that such a construction would be ridiculous. A mere transfer of possession under a mortgage of land -with -fruit -trees for appropriation of its yield cannot impose an obligation on the mortgagor to pay for the normal maintenance of the fruit trees thereon. It is not claimed that if mortgaged property is a paddy field the mortgagor has to pay the cultivation expenses incurred from season to season. Normal acts of protection -and -maintenance of the coconut palms and jack -trees in bearing stage are the clearest equivalent to normal acts of planting -and -maintenance of paddy plants in a field. In the words of Friedmann "words and concepts have no pre -established meaning. It varies according to context and purpose". (Legal Theory, 5th Edn., page 274). Ogden and Richards in The Meaning of Meaning have characterised words as "a special class of symbols used in thinking and communication" and said "Words receive meaning only by reference to an object or a situation in the real world" (which they called 'referent'). Pertinent then is the observation of the Supreme Court in Shahdara (Delhi) Saharanpur Light Railway Company, Ltd., v. Upper Doab Sugar Mills, Ltd. (A.I.R. 1960 S.C. 695, 701), "It is well -settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the Legislature should be presumed not to have intended the same". In the context of Section 11 the words "the protection and maintenance" have to bear a limited interpretation, limited by Section 2(b) of the Act itself.