Makky Govindan v. Velayudhan Nair — 1971 DIGILAW 177 (KER)

JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. First defendant is the appellant and the only dispute relates to the quantum of the value of improvements in the property which he is entitled to claim. In allowing the plaintiff to recover possession of item No. 1 in the plaint schedule from the defendants the lower Court allowed the latter to remove the two buildings and also the non bearing trees in the property. No value of improvements was given to him. The learned judge confirmed this decree. 2. The claim of the first defendant before us is that he is a tenant under Act 29 of 1958 and is, therefore, entitled to claim value of improvements before the plaintiff is allowed recovery of possession of the property. 3. Plaint schedule property was the subject matter of Ex. P1 partition of the 1100, and it was given for enjoyment to one Velayudhan Nair. After his death the property was set apart to the tavazhi to whom A Schedule property is to devolve under the provisions of Ex. P1. Ex. P1 contained a provision restraining Velayudhan Nair from encumbering or alienating the plaint property. Velayudhan Nair executed Ex. D1 mortgage in the year 1116 in favour of Raman Madhavan who assigned the mortgage right in favour of the first defendant. O. S. No. 726 of 1121 was instituted to set aside Ex. D1 being in contravention of the terms of Ex. P1. Though the assignment in favour of the first defendant by Raman Madhavan was prior to O. S. No. 726 of 1121, Raman Madhavan alone was impleaded in that suit and the first defendant was not a party. It was subsequent to the institution of the suit, on 14-12-1121, that the first defendant was impleaded. Ex. P2 is the judgment whereby Ex. P1 was set aside and the decree prevented the first defendant from making further improvements upon the property. Ex. P2 is dated 31-5-1952. In A. S. No. 123 of 1954 filed by the plaintiff in O. S. No. 736 of 1121 the decree of the Trial Court fixing the value of improvements due was set aside for the reason that there was no decree for recovery of possession of the property. Ex. P2 is dated 31-5-1952. In A. S. No. 123 of 1954 filed by the plaintiff in O. S. No. 736 of 1121 the decree of the Trial Court fixing the value of improvements due was set aside for the reason that there was no decree for recovery of possession of the property. The suit giving rise to this appeal has been instituted subsequent to the death of Velayudhan Nair on 21-12-1961 by the plaintiff in whose favour the property was allotted under the Sakha Partition of 1962. The Trial Court found that the first defendant has effected improvements in the property and valued the same at Rs. 1050-80. The improvements were effected prior and subsequent to the date of Ex. P2. The question is whether Rs. 1050-80 can be claimed by the first defendant before the plaintiff is allowed to recover possession of the plaint property. 4. S.2(d) of Act 29 of 1958 contains an inclusive definition of the term 'tenant'. S.2(d)(iii) reads: "(d) 'tenant' with its grammatical variations and cognate expressions includes:- (ii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements". The Court below denied the first defendant relief regarding the recovery of improvements based on the decision in Kochunni Kartha v. Balaraman ( 1956 KLT 719 ). There the right of a life tenant to claim value of improvements both under S.51 of the Transfer of Property Act and Act 29 of 1958 has been considered. With reference to S.2(d)(iii) of Act 29 of 1958 it was held that when a life tenant makes improvements in the property in his possession he is doing it on a property belonging to him and not belonging to another. Therefore, he cannot be a tenant within the meaning of Act 29 of 1958. The said decision has no application to the case before us for the reason that the first defendant improved the property only in his capacity as a mortgagee of the life tenant and not in a property belonging to him. Therefore, he cannot be a tenant within the meaning of Act 29 of 1958. The said decision has no application to the case before us for the reason that the first defendant improved the property only in his capacity as a mortgagee of the life tenant and not in a property belonging to him. It was contended by counsel for the respondent that in order that S.2(d) (iii) may apply he must have made the improvements in the bona fide belief that he is entitled to make such improvements against the remainder man and in support of his position he relied on the decision in Abdul Rahiman & another v. Kunhan & another ( 1963 KLJ 567 ). We cannot accept this submission of counsel for the respondent. What is required under S.2(d)(iii) of Act 29 of 1958 is only a bona fide belief on the part of the person making such improvements in the property of another person that he is entitled to make the same. To apply S.2(d)(iii) of Act 29 of 1958 it is not necessary that he should have the bona fide belief that he can claim the value of improvements against the ultimate owner of the property. It cannot be denied that the life tenant can encumber or alienate the property which will be good during his life time, though it may not be ultimately binding against the remainder man. 5. But by Ex. P2 judgment the first defendant has been restrained from making improvements in the property. On the basis of that the claim of the first defendant to get value of improvements effected subsequent to Ex. P2 date cannot be recognised. The two buildings which have been valued were constructed in the property subsequent to the date of Ex. P2 and all the coconut trees below the age of 18 will also come only under that category. 6. We, therefore, modify the decree and judgment of the court below and make the decree for recovery of possession in favour of the plaintiff subject to the payment of Rs. 559-74 to the first defendant towards value of improvements. The direction given by the Courts below allowing the first defendant to remove the two buildings and also the trees for which value of improvements is not awarded will stand. 7. The second appeal is allowed to the extent indicated above and dismissed otherwise. 559-74 to the first defendant towards value of improvements. The direction given by the Courts below allowing the first defendant to remove the two buildings and also the trees for which value of improvements is not awarded will stand. 7. The second appeal is allowed to the extent indicated above and dismissed otherwise. The parties will bear their costs in this Court.