Judgement

KHALID, J. :- The appellants are the defendants in O.S. 55 of 1952 in the Sub-Court, Mangalore. Their father had obtained sale of the property involved in this appeal by a document dated 28-4-1939, executed by the widowed mother of the respondent-plaintiff who was a minor, aged six years, she acting as his guardian. After he attained majority, he filed a suit for a declaration that the said sale deed was invalid and was not binding upon him and for recovery of possession thereof. The trial Court dismissed the suit. In appeal, the appellate Court confirmed the decree and judgment of the trial Court. In second appeal, the High Court of Kerala, by its judgment, dated 27-11-1969, set aside the judgments of the Courts below, allowed the appeal and decreed the suit. The decree directed recovery of possession of the properties on payment of the sum of Rs. 4,700/- being the sale consideration and a sum of Rs. 4,164/- being the compensation for improvements.

2. On 15-9-1970, the decree-holder, respondent herein, filed R.E.P. 68/70 in the Sub-Court, Kasargod, depositing the amount due under the decree of the High Court and praying for delivery of the properties from the possession of the judgment-debtors, the appellants. Execution was resisted by, the appellants on the ground that no delivery could be ordered without payment of the value of improvements effected by them subsequent to the year 1952. They also filed R.E.A. No. 146/70 for the issue of a commission to re-value the improvements claiming that they had effected improvements to the tune of Rs. 80,000/-. The respondent contested this application, denied that the appellants had made any improvements and contended that the question of improvements had been concluded by the judgment of the High Court in the second appeal. The executing Court dismissed this petition. Aggrieved by this order, the appellants filed an appeal before the District Judge, Tellicherry, who allowed the appeal by his judgment dated 12th April, 1971 and set aside the order of the executing Court. The matter was taken to the High Court by way of Execution Second Appeal. A Division Bench of the Kerala High Court, on a reference from a learned single Judge, set aside the judgment of the District Judge by its judgment dated 7-3-1972 and restored the order of the subordinate Judge and directed recovery of the property. The appellants moved the High Court for grant of certificate of fitness, which prayer was declined and hence have filed this appeal by special leave.

3. The suit was filed by the plaintiff within three years of his attaining majority alleging that the assignee took advantage of the ignorance and helpless condition of the plaintiffs mother, who was a young widow and that there was neither legal necessity nor pressure from the estate for effecting the sale. He averred in the plaint that there was a partition decree in his favour in which he had been allotted these properties with outstanding amounting to Rs. 5,300/- and mesne profits to the extent of Rs. 1,549/- which were sufficient to discharge the debts due by the estate. The entire immovable properties belonging to the plaintiff, including the family residential house, were alienated. The High Court in second appeal on the trial side held that the alienation was not something which a man of ordinary prudence would have effected had the properties been owned by him and thus held it not binding on the plaintiff. The learned Judges of the Division Bench then considered the question of the defendants right for compensation for improvements, if any. effected. This claim was denied. In the written statement filed by the defendant, as noted by the High Court, all that was claimed was that improvements had been effected to the tune of Rs. 4,000/-. But no specific claim was made for compensation in the event of eviction. The High Court also noted that the averment regarding improvements was itself made in the context of denying that the property wou