JUDGMENT S. Velu Pillai, J. 1. In this appeal by the second defendant, which arises out of a suit for the redemption of a mortgasge, Ext. A, of the year 1114, executed by the plaintiff and his mother, the second plaintiff, to the mother of the defendants, two questions arise for determination, first relating to the decree for mesne profits, and second relating to the decree for improvements. A transferee of about 43 cents of the mortgaged property from the plaintiffs, has been impleaded on his application as the sixth respondent in this appeal and he has preferred a cross-objection to the decree awarding value of improvements. A preliminary objection, to be disposed of presently, was taken to the competency of the cross-objection by the learned counsel for the third respondent-first-defendant; that, as a transferee, pending suit, he had no right of appeal, except perhaps with the leave of the court, that a cross-objection too cannot be maintained without such leave, and that no leave could be granted in the circumstances of the case. The learned counsel relied upon a number of decided cases, which have held, that a party not on record, cannot prefer an appeal, except with the leave of the court. It is however unnecessary to consider them, in view of the latest pronouncement of the Supreme Court in Sm. Sail Bala Dassi v. Sm. Nirmala Sundari Dassi (A. I. R. 1958 S. C. 394) In that case, the appeal to the High Court was preferred by the second respondent in the Supreme Court against an order, that the execution of the decree was not barred by limitation. Pending the appeal, the second respondent made a settlement of the claim with the first-respondent-decree holder at a stated amount. Before the appeal was preferred, the second respondent had transferred the property under the decree in favour of the appellants in the Supreme Court, who petitioned to the High Court, that she may be substituted in the place of the second respondent as the appellant or in the alternative, be brought on record as additional appellant. Before the appeal was preferred, the second respondent had transferred the property under the decree in favour of the appellants in the Supreme Court, who petitioned to the High Court, that she may be substituted in the place of the second respondent as the appellant or in the alternative, be brought on record as additional appellant. Her petition was dismissed by the High Court, and the matter came up before the Supreme Court, where an objection was taken, that, not having been brought on record in the suit and the transfer in her favour having taken place before the appeal was filed and pending the suit, Order 22, Rule 10, C. P. C., cannot be invoked by her in support of her petition. Their Lordships however considered the matter under section 146, C. P. C. and held, that the appellant was entitled by virtue of section 146 to prefer an appeal, and therefore, also to continue the appeal. They observed: Whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending sit or proceeding would be entitled to prefer an appeal against the decree or order passed therein, if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment This is sufficient authority for me to hold, that the sixth respondent was entitled to prefer an appeal by virtue of Section 146, and no question of leave arises; if so it is not open to doubt, that he is equally entitled to prefer a cross-objection. It was stated, that there is a provision in the document of transfer in favour of the sixth respondent, that his transferors would conduct this litigation and they have provided sufficient indemnity for the purposes, but this does not take away the right of the sixth respondent to prefer an appeal under law. The preliminary objection has therefore to be over-ruled. 2. The plaintiffs have already assigned away their rights in respect of all, but half-an-acre of the mortgaged property, and have possession of only that area. The preliminary objection has therefore to be over-ruled. 2. The plaintiffs have already assigned away their rights in respect of all, but half-an-acre of the mortgaged property, and have possession of only that area. The learned counsel for the sixth respondent pressed before me, that the entire decree may be re-opened or modified at his instance even in favour of the plaintiffs who have not preferred an appeal, and of their alienees who have not chosen to come on record. It is more than doubtful, whether the power of the appellate court can be exercised on behalf of those who are not on record. In any case, granting that there is a discretion in the Court, so to interfere with the decree, I am not convinced, that this is a fit case in which such discretion should be exercised in favour of the plaintiffs and their-alienees. On behalf of the second defendant-appellant, his learned counsel Shri Mathew Muricken has agreed before me, that if the present appeal is confined to the individual rights which the sixth respondent may have in the mortgaged property, the second defendant does not press the appeal with regard to the claim for additional value of improvements and mesne profits. I hold, that the cross-objection preferred by the sixth respondent has to be limited only to his individual rights with reference to the area of 43 cents in which he is interested and these relate to the claim made by the defendants for the value of improvements and for mesne profits. 3. The case of the plaintiffs, that the lease to Rajappa Iyer was really on their behalf, has not been substantiated, and it has to be held, that the buildings were put up by Rajappa Iyer. His rights, if any, had passed to the plaintiffs under the assignment of the lease to him. The defendants have to prove, in order to sustain their claim for improvements, that they advanced fund to Rajappa Iyer for making the improvements. In para 43 of their written statement, they set up the case, that they had advanced funds to Rajappa Iyer for making the improvements, on a receipt passed by him. The averments in paragraph 43 of the written statements were denial was followed by the statement, that no funds were advanced to Rajappa Iyer. In Ext. In para 43 of their written statement, they set up the case, that they had advanced funds to Rajappa Iyer for making the improvements, on a receipt passed by him. The averments in paragraph 43 of the written statements were denial was followed by the statement, that no funds were advanced to Rajappa Iyer. In Ext. H suit instituted on the basis of the lease, a specific issue was raised as to the buildings on the mortgaged property, but it was not pressed to a decision, as the matter was settled otherwise. The third defendant, who was conducting that litigation on behalf of his mother, the mortgagee, had made three statements, Ext. G in Court, in the course of that suit, which do show, that the mortgagee's claim was limited only to the mortgage amount and arrears of rent which had accrued for different periods. The point is, that no claim was ever made by the third defendant on account of improvements alleged to have been made with funds advanced to Rajappa Iyer. As Ext. H itself states, the third defendant was acting on behalf of his mother, and it is impossible to accept the suggestion that he was acting beyond his authority. In fact, the second defendant as witness in the present case has affirmed the correctness of the statements in Ext. G. In a later suit on the lease, evidenced by Ext. 1, judgments, the present plaintiffs set up a claim for value of improvements, to the extent of Rs. 1, 200; it may be taken, that the averments in the written statements were denied in the replication. The question was not gone into, and a decree for eviction of the present plaintiffs was passed, without any provision for the payment of the value of improvements to them. It was however to be noted, that the present suit for the redemption of the mortgage right itself, had been instituted in the year 1951, and an issue about improvements had been raised in it and was being gone into, by the District Court. Ext. 1 judgment was rendered in the year 1954, when this suit had already made some headway. So the circumstances, that the plaintiffs preferred no appeal against Ext. I is not conclusive. The defendants case is also, that after putting up the buildings, an additional rent of Re. Ext. 1 judgment was rendered in the year 1954, when this suit had already made some headway. So the circumstances, that the plaintiffs preferred no appeal against Ext. I is not conclusive. The defendants case is also, that after putting up the buildings, an additional rent of Re. 20 per mensem, was stipulated as payable to them, Rajappa Iyer bing entrusted with the duty to collect it. Neither in Ext. H nor Ext I suit, was any claim made for additional rent and Dw. I explained with reference to Ext. H, that this was so, for the reason, that the term of the lease had not expired. 4. The strongest piece of evidence, that the defendants had relied on, was Ext. II a letter of the year 1116, stated to have been written by the first plaintiff and signed by Rajappa Iyer, and in which there is an admission, that the defendants had advanced funds for the construction of the buildings. Although, as noticed, the written statement had referred to a receipt as having been passed by Rajappa Iyer and this had been denied in the replication, Ext. A was not put into Court until December 15, 1955. Afterwards, in cross-examination when confronted with Ext. II, the first plaintiff admitted, his having written it and Rajappa Iyer having signed it, but he still maintained, that the building were put up by the plaintiffs and not by the mortgagee or by Rajappa Iyer, explaining in re-examination that Ext. II was written under some sort of coercion practiced by the mortgagee. The plea of coercion being unsustainable, Ext. II, as an admission, may be binding on the plaintiffs, but not on the sixth respondent, whose assignment was earlier than the plaintiffs, admission. The broad circumstances pointed out above do show, that Ext. II must have been brought into existence in collusion by the plaintiffs and defendants. The burden of proof is on the mortgagee to establish, that she advanced funds to Rajappa Iyer for making the improvements, even if the plaintiffs case, that they were in possession under the lease is rejected. Motive for collusion cannot always be proved by direct evidence but may be inferred from facts and circumstances. The burden of proof is on the mortgagee to establish, that she advanced funds to Rajappa Iyer for making the improvements, even if the plaintiffs case, that they were in possession under the lease is rejected. Motive for collusion cannot always be proved by direct evidence but may be inferred from facts and circumstances. The personal undertaking said to have been given by the plaintiffs in the assignment to the sixth respondent, to indemnify him against any possible loss on account of this litigation is not sufficient to rule out the possibility of collusion in bringing about Ext. II. I therefore come to the conclusion, that Ext. II cannot be relied on against the sixth respondent, and the claim of the mortgagee for the value of improvements has not been established against him. 5. It is seen, that in pursuance of the decree, the sixth respondent has deposited in Court the value of the improvements and mesne profits decreed; this relates to the improvements on the mortgaged property. In awarding the value of improvements the Court below has reduced the Commissioner's estimate proportionately, and it will be possible for the execution Court, to determine how much of such value as decreed, is properly chargeable to the area of 43 cents in the possession of the sixth respondent. This will be ascertained and the amount so found, may be withdrawn by the sixth respondent from the amount deposited. The sixth respondent's property will of course be liable for the proportionate mortgage amount deposited by the plaintiffs. 6. As for mesne profits, the mortgage and the lease being not parts of the same transaction, the sixth respondent could not be liable, although the decree has become final even in this respect as against the plaintiffs. The decree for mesne profits having to be re-opened at the instance of the sixth respondent, the learned counsel for the appellant, and for the third defendant agreed before me, that the sixth respondent may be exonerated from liability for mesne profits to the extent of 1/5th of 22 ? rupees per mensem, that is, of 4 ? rupees per mensem, and the learned counsel for the sixth respondent also agreed to this. The sixth respondent will be entitled to withdraw one fifth share of the amount deposited by him towards mesne profits. 7. rupees per mensem, that is, of 4 ? rupees per mensem, and the learned counsel for the sixth respondent also agreed to this. The sixth respondent will be entitled to withdraw one fifth share of the amount deposited by him towards mesne profits. 7. The mortgage amount having been deposited by the plaintiffs, and the value of improvements and mesne profits decreed having been deposited by the sixth respondent, and the sixth respondent's learned counsel having agreed, that all but his share of the value of improvements to be determined and mesne profits, as stated above may remain in Court and be available for the defendants, the mortgage will be deemed to be extinguished. The decree under appeal is modified to give effect to the directions made above, so far as the sixth respondent is concerned, but is otherwise final as regards the other parties to the decree. The appeal and the cross-objection are disposed of as above, but I make no order as to the costs of this Court.