R KANNIAH NAIDU Vs. K VIJAYAKUMAR

JUDGEMENT

(1.) THE above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Kancheepuram, dated 21.12.1982, in A.S. No.11 of 1982, by the defendant in the trial court reversing the judgment and decree of the learned District Munsif at Kancheepuram, dated 20.3.1981 in O.S. No.241 of 1979.

(2.) THE respondent/ plaintiff has filed the suit for redemption of mortgage on payment of Rs.2,016.66 and for recovery of possession. THE plea of the plaintiff in the trial court was that one Kuppusamy Naidu executed a usufructuary mortgage deed for good and valuable consideration of Rs.5,500 in favour of the defendant on 2.4.1960 in respect of the plaint schedule properties and put the defendant in possession of the same in lieu of interest, that the plaintiff is the only and sole legal heir of Kuppusamy Naidu entitled to redeem the suit properties, that he is a debtor within the meaning of Tamil Nadu Act 4 of 1938 and Act 8 of 1973 and in view of the same the plaintiff filed O.P. No.3 of 1976 on the file of the Sub Court, Kancheepuram for determination of the principal amount under Secs.94 and 19-A of the Tamil Nadu Act 4 of 1938, as amended, and that the learned Subordinate Judge scaled down the mortgage debt as per the provisions of the Act and held that the plaintiff is liable to pay a sum of Rs.2,016.66 to redeem the properties, and on receipt of the same defendant herein in C.M.A. No. 141 of 1976 before the District Court and admittedly the said appeal failed. THEreafter there were no further proceedings and the order of the learned Subordinate Judge became final. It is in these circumstances the present suit came to be filed. THE main and substantial objection on behalf of the defendant was that the defendant, as mortgagee, has effected certain improvements of the value of Rs.15,000 but he restricts it to Rs.7,000 and according to Sec.63A of the Transfer of Property Act a mortgagee is entitled for the improvements made by him and the properties can be allowed to be redeemed only after paying the said value. On the said claims and counter-claims the parties adduced oral and documentary evidence. THE learned trial judge was of the view that the defendant is entitled to get back Rs.7,000 for the improvements to the lands from the plaintiffs and to execute the decree for recovery of possession only after paying the said amount and paying the necessary stamp duty. Aggrieved, the plaintiff filed an appeal before the Sub Court. THE learned Subordinate Judge, as noticed earlier, has chosen to disagree with the conclusions and findings of the learned trial judge in so far as it relates to the payment of amount for improvements and confirmed the judgment in other respects. Hence, the above appeal by the defendant.

(3.) I have carefully considered the submissions of the learned counsel appearing on either side. In my view, the challenge made to the judgment and decree of the first appellate court does not merit my acceptance. As for the improvements, the mode and extent of proof required in such cases has been dealt with in a Division Bench Judgment, cited supra, and at page 620 the Division Bench has held as follows: "Mr.Govindarajachari attacks the finding of the learned Subordinate Judge on the factum of the execution of the improvements and the finding as to their value. It may be mentioned that the third defendant produced certain account books in proof of the expenses which he incurred for the improvements, but the learned Subordinate Judge was not prepared to believe them. We have only got the oral evidence on behalf of the third defendant in support of his claim. We think that in a case where a mortgagee seeks to make the mortgagor liable for the amount as cost of improvements, it is the duty of the mortgagee to establish by indubitable evidence the fact of the execution of such improvements and the actual expenses incurred by him for effecting them. The third defendant has failed to do that in this case. So far as the claim for reclamation is concerned it is not clear exactly what lands were reclaimed after the execution, of the mortgage and at what cost. If it were necessary to find, we have no hesitation in finding that the third defendant has not established what improvements were effected by him and the expenses which he incurred for effecting them. We therefore hold that the third defendant is not entitled to any amount on this account." In my view, the observations of the Division Bench squarely applies to the case on hand and, as a matter of fact, though no reference has been made to the said judgment, I find in substance, the first appellate court has really given effect to the ratio of the judgment. In this case also, as in the other case, excepting the notebook and the testimony of the defendant, there was no other evidence clinching the point relating to the improvements and, therefore, the factual finding recorded by the first appellate court on an elaborate consideration of the evidence on record that the defendant has failed to substantiate the claim relating to the improvements by proving the factum of such improvements do not call for any interference in this second appeal. The said finding is a pure question of fact and finding recorded on mere appreciation of evidence.