Rama Iyer v. Parvathi Ammal — 1961 DIGILAW 292 (KER)

JUDGMENT P. Govinda Menon, J. 1. The main question that arises for determination in his appeal is whether the 1st defendant-appellant is liable to pay mesne profits. 2. The suit which gave rise to this appeal was brought by the respondent for declaration of title for recovery of possession on the plaint schedule properties. Her husband Neelakanta Iyer inherited the property from his father Subramania Iyer, who died in the year 1087 (M. E). Neelakanta Iyer also died in 1102 (M. E). His mother Chinnammal was alive at the time of his death. For Chinnammal's maintenance the plaint schedule properties were allotted under a Nischayapatram. Chinnammal was given the right to lease the properties, and the properties were ultimately given on lease to the appellant by a registered document dated 21-8-1116 for a term of 6 years on a rent of Rs. 200/-. Under the lease deed the appellant could effect improvements. Chinnammal died on 31-1-56. After her death the plaintiff claimed recovery of possession of the properties with mesne profits from the date of Chinnammal's death. 3. First defendant filed a written statement in which he denied the plaintiff's title as reversionary heir, asserted that Chinnammal had an absolute estate and not merely a life estate for maintenance. In the alternative he claimed that Chinnammal having executed the lease deed, he is entitled to continue in possession till he was paid his value of improvements and that he was not liable to pay mesne profits, but need pay only the rent stipulated in the lease deed. 4. The learned subordinate Judge held that the lease granted by Chinnammal terminated with her death, that the appellant not having surrendered possession was bound to pay mesne profits from the date of the plaint and fixed the rate of mesne profits at Rs. 1, 148-4-0 and 124 paras of paddy a year. The learned Judge, however, awarded value of improvements to the appellant amounting to Rs. 2, 212-4-8 5. Learned counsel for the appellant has strenuously argued that an alienation by the mother is not void, but only voidable, that the reversioner can avoid it by choosing to institute a suit for possession, that the alienee could not be held to be in unlawful possession and consequently no mesne profits should have been allowed. 2, 212-4-8 5. Learned counsel for the appellant has strenuously argued that an alienation by the mother is not void, but only voidable, that the reversioner can avoid it by choosing to institute a suit for possession, that the alienee could not be held to be in unlawful possession and consequently no mesne profits should have been allowed. It is also contended that as he has not been paid his value of improvements to which he was legally entitled, the plainiff's right to possession did not accrue and consequently no mesne profits should have been allowed. The respondents learned counsel would have it that there is termination of the tenancy on the death of the grantor who had only a limited interest and h lease is void against the reversioner. 6. The earliest case in which the question whether a lease granted by a limited owner is only voidable had come up for consideration in Modhu Sudan Singh v E. G Rooke (I. L. R.25 Cal. 1- P. C). Sir Richard Couch J. delivering the judgment observed: In considering their effect it must be observed that the putni was not void, it was only voidable; the Raja might elect to assent to it and treat it as valid. It s validity depended on the circumstances in which it was made. The learned Judges of the High Court appear to have fallen into the error of treating the putni as if it absolutely came to an end at the death of the widow. 7. This decision was followed in Bijoy Gopal Mukherji v Krishna Mahishi Debi (I. L. R. 34 Cal. 329 P. C.) Their Lordhsips of the Judicial Committee approved the view taken in I. L. R. 25 Cal. 1 and in describing the nature of a Hindu widow's estate Lord Davey said: A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fir to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. Therefore the law is clear that the lease is not void but is only voidable. 8. If the reversioner elects to treat the lease as a nullity after the death of the limited owner and files a suit for possession, is the tenant bound to surrender is the next question. That would depend on whether the tenant could remain in possession until the value of improvements due to him is fixed and paid. It is true that there was no law in Travancore that the lessee or transferee from a limited owner is entitled to claim value of improvements. But even as early as 1909 in Venkatarama Aiyan v Dewan of Travancore (17 T. L. R. 184) a Division Bench of the Travancore High Court said: The plaintiff having come into possession legally (i.e., not as a trespasser) he was according to the usage of the country entitled to make such improvements as were suited to the nature of the holding, and as the landlord reaps the benefit of the improvements in the shape of higher rents, it is only equitable that if the tenant is to be turned out, he must get the value of the improvements made by himself and those under whom he claims, at such rate as may be established by the usage in the locality. 9. 9. In Narayanan Anandan v Raman Anandan (1943 T. L. R. 822) the matter was again considered and Abraham J delivering the judgment of the Full Bench discussed exhaustively the question as to the right of person in possession to claim value of improvements and observed that there was no general rule that trespassers are in every case entitled to get value of improvements effected by them and dealt with a class of tenants coming into possession legally, not as trespassers and thereupon effecting improvements. The head-note of the case reads: A trespasser has no right to claim value of improvements when the trespass is made with the knowledge that he has no right to the property. But one, who in good faith enters upon property believing he has a right to it and effects improvements, has a right to be paid the value thereof, before being evicted, provided the improvements are consistent with the nature of the property and are not unreasonable. When a person, who is in possession lawfully under a bona fide title which is subsequently set aside, is dispossessed, he is entitled to get the value of improvements effected by him provided they are reasonable and consistent with the nature of the property. 10. In P. Chinnakannu Pillai v Ammalu Ammal Gomathi Ammal (A. I. R. 1952 T. C. 125) it is stated that the right of a tenant to retain possession of the holding until payment of the value of improvements has been recognized by usage of high antiquity, that the right of the tenant is not merely to get compensation for his improvements but to retain possession of the holding until such compensation is paid and that right of retention is destroyed and will be lost to the tenant if he is deprived of possession before payment. 11. This customary law to get value of improvements was given statutory recognition by the Travancore-Cochin Compensation for Tenants Improvements Act Act X of 1956, whereby a tenant is entitled to make legitimate improvements up to the date of actual eviction. Act X of 1956 came into force on 31-10-1956, before the suit was decreed. Section 4 of the Act reads 4. Act X of 1956 came into force on 31-10-1956, before the suit was decreed. Section 4 of the Act reads 4. Tenant entitled to compensation for improvements: (1) Every tenant shall, on eviction, be entitled to compensation for improvements which were made by him, his predecessor-in-interest or by any person not in occupation at the time of the eviction who derived title from either of them and for which compensation had not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money or premium, if any, to entitled to remain in possession until eviction in execution of a decree or order of court: Provided that nothing herein contained shall be constructed as affecting the provisions of the Travancore-Cochin Land Conservancy Act, 1951 (XIX of 1951). (2) A tenant so continuing in possession shall, during such continuance, hold as a tenant subject to the terms of his lease or mortgage, if any. This was followed by the Kerala Compensation for Tenants Improvements Act-Act XXIX of 1958 where also there are similar provisions. 12. That a person who has to receive value of improvements continues to be legally inpossession and is a statutory tenant has been laid down in a number of decisions of the Madras High Court arising under the corresponding provisions of the Malabar Compensation for Tenants Improvements Act Act 1 of 1900. In Chowakkaram Keloth Makki Keyi v Karuvalote Parkum Ponnambath Koomulli Madhavi Amma (A. I. R. 1916 Mad. 975), Oldfield and Tyabji JJ.held: Though compensation for improvements was awarded by the previous decree the learned Subordinate Judge did not keep in mind the provisions of S. 5 of Act 1 of 1900, and the fact that a tenant continuing in possession pending receipt of compensation holds subject to the terms of his previous lease, that is hold as tenant. (Kummatha Vittil Kunhi Kuthalai Haji b Antom Goveas 19 I. C. 563). It follows that the 1st defendant must have held as a tenant after the decree against him, and that the learned Subordinate Judge's conclusion to the contrary, based only on the absence of payments of rent, is unsustainable. 13. Again in C. S. Parameswara Ayyan v Kittunni Valia Mannadiar (A. I. R. 1918 Mad. It follows that the 1st defendant must have held as a tenant after the decree against him, and that the learned Subordinate Judge's conclusion to the contrary, based only on the absence of payments of rent, is unsustainable. 13. Again in C. S. Parameswara Ayyan v Kittunni Valia Mannadiar (A. I. R. 1918 Mad. 381) dissenting from the view taken in an earlier case in Chami v Ana Pattar (1916) 32 I. C. 861) it was held: Under S. 5 of the Malabar Compensation for Tenants Improvements Act (1 of 1900) the mortgagee notwithstanding a valid tender, remains in possession as a mortgagee and not as trespasser or trustee, till compensation is actually paid. A mere tender of the amount by deposit into court, even where it is found sufficient to cover the compensation for improvements, will not render the mortgagee-tenant liable for mesne profits from the date of the tender. 14. In Kunhumalu v Gopalakrishna Iyer (1952-1 M. L. J. 831) the question that arose for decision in the second appeal wa whether the appellant was liable to pay mesne profits. The Execution Officer of the Devasthanam sued the defendant for possession of the suit properties and for mesne profits. The learned Munsiff held that the mortgage deed was supported by consideration, that he was a bona fide creditor, that he is entitled to value of improvements, bit as the mortgage was in valid, having been executed in contravention of the provisions of Section 76 of the Madras Hindu Religious Endowments Act, mesne profits have to be paid. The contention that was raised was that the appellant was not liable for mesne profits as he was a statutory tenant under the Act and therefore not in wrongful possession, in which case alone mesne profits could have been ordered. Referring to the relevant provisions of Act 1 of 1900 His Lordship, Subba Rao J. observed: From the aforesaid provisions it is clear that for the purpose of the Act the word tenantis given a very wide connotation as to take in even a trespasser who cultivates a land intending to pay the customary rent. It includes also a person in possession of land in good faith believing himself to be a mortgage. Under Section 5 such a tenant is entitled to be in possession until he is evicted in execution of the decree. It includes also a person in possession of land in good faith believing himself to be a mortgage. Under Section 5 such a tenant is entitled to be in possession until he is evicted in execution of the decree. Under Section 5(2) till he is evicted he will be subject to the terms of the lease or mortgage as the case may be. It will follow that a person in possession in good faith believing himself to be a mortgagee will be a statutory tenant under the provisions of the Act and his rights and liabilities will have to be worked out as per the terms of the said provisions. So understood, I find it very difficult to hold that such a person is in wrongful possession of the mortgage properties notwithstanding the fact that the mortgage deed was invalid. The Legislature designedly conferred certain right on such a person and legalised his possession till he is duly, evicted under Section 6(1) of the Act. Sadasiva Iyer J. had occasion to consider the scope of section 5 and Section 6 of the Malabar Tenancy Act in Parameswara v Valla Mannadiar (33 M. L. J. 591). There, a suit was filed for ejectment and the question was whether the mortgagee was bound to pay mesne profits from the date of the tender of the amount due under the mortgage into court when it was found that the money tendered sufficiently covered the compensation for improvements also. The learned Judge held that till compensation was actually paid, the mortgagee remained in possession as mortgagee despite the valid tender. The learned Judge sitting with Napier J. said in Manager Sankunni Variar v Kunji Nangayaramma (37 M. L. J. 206) that the mortgagee in Malabar has right to remain in possession till he is actually paid or till he is ejected by a decree of court and hence he is not accountable for mesne profits till either of these events happens. We are in respectful agreement with the view expressed in these cases. 15. The learned counsel for the respondent brought to our notice the decision of the Supreme Court in Mummareddi Nagi Reddi v Pitti Durairaja Naidu (A. I. R. 1952 S. C. 109) where their Lordship say: There is no rule of law that no mesne profits can be allowed in a case where the alienaton cannot be described as absolutely void. The learned counsel for the respondent brought to our notice the decision of the Supreme Court in Mummareddi Nagi Reddi v Pitti Durairaja Naidu (A. I. R. 1952 S. C. 109) where their Lordship say: There is no rule of law that no mesne profits can be allowed in a case where the alienaton cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal v Debi Dayal (35 Ind. App. 48. P. C.) and Satgur Prasad v Harnarain Singh (59 Ind. App. 147, P. C.) may be cited as illustrations where mesne profits were allowed in transactions which are only voidable. The decision has no application to the facts of this case where the tenant is entitled to remain in possession of the property until the value of improvements effected by him has been ascertained, fixed and paid to him through court. 16. Reference may be made to the decision of the Supreme court in Mahabir Gope v Harbans Narin Singh (A. I. R. 1952 S. C. 2025) while discussing the general rule that a person cannot by transfer or otherwise confer a better title on another than he himself has and that a mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee; their Lordships observe: A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether. It is an exception to the general rule. The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage. He may become an occupancy raiyain some cases and a non-occupancy raiyatin other cases. But the settlement of the tenant by the mortgagee must have been a bona fideone. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication. So the Supreme Court has not expressed themselves against the principles enunciated in the cases referred to by us earlier. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication. So the Supreme Court has not expressed themselves against the principles enunciated in the cases referred to by us earlier. It follows that the appellate is notliable to pay mesne profits and that he holds subject to the terms of his lease and is liable only to pay the annual rent of Rs. 200/- as fixed in his lease deed. 17. The next question is whether the improvements awarded to the appellant should be re-assessed. Since Act X of 1956 and Act XXIX of 1958 became law before the decree of the trial court, that court would have been not merely competent, but was also bound to apply the Act in fixing the value of improvements, Clause (3) to Sections 5 of Act XXIX of 1958 reads: (3) The amount of compensation for improvements made subsequent to the date up to which compensation for improvements has been adjudged in the decree and the revaluation of an improvement, for which compensation has been so adjudged, when and in so far as such revaluation may be necessary with reference to the condition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the court executing the decree and the decree shall be varied in accordance with such order. 18. Compensation to be paid to the tenant on eviction is not only the compensation adjudged by the decree, but will include additional amount of compensation that may be fixed by the order of the executing court under cl.3 of Section 5. It is also stated in that clause that when an order is passed by the executing court determining the tenant's claim for additional compensation the decree in the case shall be varied in accordance with that order. 19. The question of improvements in this case has been dealt with by the learned Judge in paragraph 14 of the judgment. The contention of the plaintiff that the defendant is not entitled to the value of improvements was negative and has not been seriously challenged by the respondent in this court. Ext. 19. The question of improvements in this case has been dealt with by the learned Judge in paragraph 14 of the judgment. The contention of the plaintiff that the defendant is not entitled to the value of improvements was negative and has not been seriously challenged by the respondent in this court. Ext. D 10 is the report of the Commissioner. He has shown the various trees planted by the defendant for which he is entitled to be compensated. The appellant has not disputed the quantum or the number of trees in the memorandum of appeal filed by him, his only grievance being that it has not been properly valued under the provisions of Act XXIX of 1958. The appellant, will, therefore, be entitled only for a re-assessment of their value in accordance with the provisions of the Act, and also for the value of improvements effected after the date of the Commissioner's report. In other respects the Commissioner's valuation will stand. We wish to make it clear that such re-valation will be confined to the trees in item No. 1 as the value of improvements in other items do not call for modification in the light of the new Act. 20. In the result, the decree awarding mesne profits is set aside. The plaintiff will be entitled only to the rent as fixed in the lease deed, namely, Rs. 200/- a year from the date of the plaint and the decree will be modified accordingly. The improvements will be re-valued under Section 5(3) and no eviction will be ordered until the court is satisfied that the entire compensation due under Sections 4(10 and 5(3) of Act XXIX of 1958 has been paid or deposited into court to the credit the appellant. The appeal will stand allowed to the above extend. In view of the circumstances of the case, the parties will bear their own costs in both the courts. The Memorandum of cross-objection is also dismissed, but without costs.