Sulaikha Ummal v. Sumathi — 1961 DIGILAW 442 (KER)

Judgment :- 1. In this second appeal, arising in execution, the only question for determination is whether the tables published by the Government under S.13 of the Kerala Compensation for Tenants Improvements Act (XXIX of 1958) are to be applied. The tables were published by the Government on 25th April, 1961, when the case was pending in appeal before the lower appellate Court. The lower appellate Court held that the tables were not applicable and in that view confirmed the decision of the first court. The defendant judgment-debtor contends in second appeal that the tables are applicable. 2. The suit was for the redemption of a mortgage, wherein a decree was passed for redemption on payment of the value of improvements to the mortgagees. The Court reserved the valuation of the improvements to be done in execution. In execution a commission was taken, who submitted his report, Ext. D1, on 6th November 1958 and in slight modification of that report the first Court fixed the value of the building at Rs. 1984-11 nP. Regarding the other improvements like coconut trees, arecanut trees, pepper wines etc., the executing court accepted the valuation of the commissioner. In appeal these valuations have been confirmed by the lower appellate Court. In second appeal it is argued by the learned advocate of the appellant that the valuation regarding the building as well as the trees has to be reopened and re-assessed. Regarding the building no convincing reason has been urged by the learned advocate as to how the valuation accepted by the lower Courts is wrong and therefore„ the valuation of the building by the lower Courts will stand. 3. Regarding the coconut and arecanut trees, jack trees and pepper vines it has been urged before me that the lower appellate Court should have modified the valuation of these items on the basis of the tables published under S.13 of the Tenants Improvements Act. The learned advocate of the respondents objects and contends that the tables, which were published after the valuation was done by the commissioner, should not be looked into for fixing the value of the improvements. This contention, I do not think, is correct. At the time when the appeal was decided by the lower appellate Court the tables had already been published and therefore, the lower appellate Court should have applied the tables. This contention, I do not think, is correct. At the time when the appeal was decided by the lower appellate Court the tables had already been published and therefore, the lower appellate Court should have applied the tables. It is established that the power of the appellate Court is not limited to determining the question whether the original court was right according to the law in force at the time of its judgment; but it may pass such decree as is in accordance with any later enactment which came into operation subsequent to such date. For this proposition a Division Bench ruling of this Court in Nani Kunjukrishnan v. Padmanabha Pillai Krishna Pillai (1958 KLT. 645) gives support. Therefore, I am inclined to accept the contention of the learned advocate of the appellant that the lower appellate court should have applied the tables published under S.13 of the Act in valuing the improvements. 4. Having reached this conclusion, to avoid a remand, I have directed the learned advocates on both sides to file lists of valuation regarding the cocoanut and arecanut trees and also the pepper vines shown in the commissioner's list on the basis of the tables under S.13 and both the learned advocates have filed such lists. These lists do not tally. By a comparison of the lists with the commissioner's report I find that the list submitted by the learned advocate of the appellant has to be accepted regarding the items of improvements. He gives ,42 non-bearing cocoanut trees, 18 non-bearing arecanut trees, 4 non-bearing jack trees and 7 non-bearing pepper vines. These figures appear to be correct. But regarding the valuation of these items adopted by the learned advocate of the appellant there is serious dispute by the learned advocate of the respondents. These items have been valued by the former under table III. Table III shows the costs of planting, protecting and maintaining a cocoanut tree, an arecanut tree, a jack tree and a pepper vine until the tree or vine is in bearing in the different taluks of the State. The property in dispute in this case is in the Chirayinkil Taluk, Trivandrum District, and the table shows the cost of planting, protecting and maintaining a cocoanut tree until the tree is in bearing as Rs. 15/-. Similarly the cost of planting, protecting etc. The property in dispute in this case is in the Chirayinkil Taluk, Trivandrum District, and the table shows the cost of planting, protecting and maintaining a cocoanut tree until the tree is in bearing as Rs. 15/-. Similarly the cost of planting, protecting etc. of an arecanut tree until it is in bearing is shown as Rs. 6/-, the cost of so planting, protecting etc. of a jack tree is shown as Rs. 3/- and a pepper vine as Rs. 6/-. The learned advocate of the appellant has valued all the 42 non-bearing cocoanut trees at Rs. 15/'- each, all the 18 non-bearing arecanut trees at the rate of Rs. 6/- each, all the 4 jack trees at Rs. 3/- each and the 7 non-bearing pepper vines at Rs. 6/- each. The objection of the learned advocate of the respondents is that this valuation is wrong. His contention is that the cost, for instance, of Rs. 15/-, of planting, protecting and maintaining a cocoanut tree until the tree is in heaping is Rs. 15/- which means that the sum of Rs. 15/- is the total cost of planting, protecting and maintaining the tree from the stage of planting until it reaches the stage of bearing and the compensation for each tree has to be worked out according to the age etc. of the tree, taking the amount given in the table as the total cost for the whole period. To illustrate his meaning the learned advocate points out that a cocoanut tree which is only a few days old and a cocoanut tree which has only a few weeks more to start bearing cannot be valued at the same Rs. 15/-. The same contention he urges regarding arecanut trees, jack trees and pepper vines. This contention appears to be quite reasonable. As rightly pointed out by the learned advocate a cocoanut tree or an arecanut tree which has been planted yesterday and a similar tree which has been maintained for four or five years and which is to start bearing tomorrow cannot be given the same compensation. Evidently the intention of the legislature is only to fix the total cost of planting, protecting and maintaining a cocoanut or arecanut tree etc. from its planting up to the point of its starting bearing. Such total cost for a cocoanut tree is given at Rs. 15/- arecanut tree at Rs. 6/- etc. Evidently the intention of the legislature is only to fix the total cost of planting, protecting and maintaining a cocoanut or arecanut tree etc. from its planting up to the point of its starting bearing. Such total cost for a cocoanut tree is given at Rs. 15/- arecanut tree at Rs. 6/- etc. These amounts have to be apportioned on the basis of the time during which the tree has been protected and maintained in relation to the total time required for the tree to start bearing and other considerations like the cost of planting etc. Therefore, the flat rate of Rs. 15/- for each of the 42 non-bearing cocoanut trees, of Rs. 6/- for each of the 18 non-bearing arecanut trees, of Rs. 3/- for each of the 4 jack trees and of Rs. 6/- for each of the 7 pepper vines cannot be accepted. These amounts have to be appropriately apportioned on the basis of the age etc. of the trees and the vines and the cost of planting them. In the case before me there is no clear indication regarding the ages of these trees and therefore, the matter perforce has to be remitted to the trial Court. 5. Regarding the bearing pepper vines the learned advocate of the appellant has given a valuation in Para.2 of his statement. Therein he has capitalised the value of pepper vines at 20 times as contemplated by S.7 of the Act. On this question also the learned advocate of the respondents contends that the mode of capitalisation is not quite correct. Both parties agree that the valuation has to be done under S.7. S.7 enacts that when the improvement has caused an increase in the value of the annual net produce of the holding, the court shall determine, as nearly as may be, the average net money value of such increase and shall award as compensation for the improvement three-fourths of the amount arrived at by capitalising such net money value at 20 times. Explanation.) and 2 to the section deal with the question as to how the money value of the net produce has to be calculated. Explanation.2 lays down that in determining the net money value of the increase, regard shall also be had to the condition of the improvement, the probable duration of its effects and the labour and capital required to make such improvement. Explanation.2 lays down that in determining the net money value of the increase, regard shall also be had to the condition of the improvement, the probable duration of its effects and the labour and capital required to make such improvement. On the basis of this explanation the learned advocate of the respondents contends that the same mode of valuing for instance", a cocoanut tree and a pepper vine should not be adopted. His contention is that the probable duration of the effects of a cocoanut tree is much longer than the probable duration of the effects of a pepper vine and this difference in the probable durations of the effects must be taken into consideration in determining the net money value of the increase in the value of the annual net produce of the holding. Similarity the condition of the improvements and the labour and capital required to make them should also be taken into consideration. 6. Scrutinising S.7(1) closely what appears is that the capitalisation of the net money value at 20 times is fixed by the section. First of all the court has to find out the average net money value of the increase in the annual net produce due to the improvements. For that the first step is to find out the increase in the annual net produce and the second step is to determine as nearly as possible the average net money value of such increase. Thereafter the court has to capitalise such net money value at 20 times. In determining the average net money value of the increase in the annual net produce of the holding the court has to take into consideration the condition of the improvement, the probable duration of its effects and the labour and capital required for making such improvement as laid down by Explanation.2, though the capitalisation is at 20 times. The average net money value of the increase in the annual net produce of a cocoanut tree, which has a probable duration of its effects for about 40 or 50 years cannot be the same as the average net money value of the increase in the annual net produce of a pepper vine, whose probable duration of effects will be very much less. This factor has to be borne in mind in determining the net money value of the increase in the annual net produce and the lower Court will bear this aspect of the matter also in mind in valuing the pepper vines, which have started bearing and the cocoanut and other trees which have also started bearing. 7. The learned advocate of the respondents then invites my attention to portions of the commissioner's report, which indicate that there is over-plantation in the property. If so, he contends, S.16 of the Act grants power to the Court either to refuse to grant any compensation or to grant compensation at a lower rate for such over-plantation. There appears some force in this contention and the lower Court will bear this also in mind. 8. The second appeal is thus allowed and the case is remitted to the trial Court for re-valuation of the improvements. The building need not be re-valued and the value fixed for it already will stand. Regarding the cocoanut, arecanut and jack trees and the pepper vines re-valuation will be effected on the basis of the tables published under S.13 of the Act and in the light of this judgment taking into consideration the question of over-plantation as well. The lower Court will if necessary, issue a fresh commission or send out the old commissioner again with a direction to re-value the improvements as indicated in this Judgment.' Both the parties are directed to bear their respective costs throughout. 9. The lower Court will dispose of the matter before it closes for the midsummer recess in 1962. The High Court office will send back the records within a week. Allowed.