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1992 Supreme(Ker) 86
Kerala High Court
K.JOHN MATHEW,T.V.RAMAKRISHNAN
Damodaran - Appellant
Versus
Shekharan - Respondent
Decided On : 03/20/1992
M/s. Lekha Suresh and A. R. Sreenivasan, for Appellants; Mr. M. C. Sen, and Mr. K. P. Dandapani, for Respondents.
The main legal point established in the judgment is that the defendants were not entitled to the benefits under S. 53A of the Transfer of Property Act and were not entitled to claim value of improvements.
Headnote:
Redemption and Recovery of Possession - Transfer of Property Act - S. 53A
Fact of the Case:
The plaintiff filed a suit for redemption and recovery of possession. The defendants contended that there was only an agreement to mortgage and so the suit for redemption was not maintainable. The trial court granted a decree for recovery of possession of the plaint schedule properties. The defendants appealed against this judgment.
Finding of the Court:
The court found that the defendants were not entitled to the benefits under S. 53A of the Transfer of Property Act and were not entitled to claim value of improvements. The court confirmed the judgment and decree of the trial court.
Issues: (i) Whether the defendants are entitled to the benefit of S. 53A of the Transfer of Property Act? (ii) Are the defendants entitled to value of improvements?
Ratio Decidendi: The court held that the defendants were not entitled to defend their possession under S. 53A of the T.P. Act as they were not entitled to any right higher than what was provided in the ultimate document agreed to be executed. The court also found that the defendants were not entitled to claim value of improvements as they were not made in the bona fide belief that they were entitled to make such improvements.
Final Decision: The appeal was dismissed and parties were directed to bear their respective costs.
JOHN MATHEW, J. :- Defendants 1 to 11 in O.S. No. 273/81, Sub Court, Kozhikode are the appellants. This suit was originally filed as O. S. No. 191/78 before the Munsiff Court, Kozhikode as one for redemption and recovery of possession. The defendants contended that there was only an agreement to mortgage and so the suit for redemption was not maintainable. Thereupon the plaint was amended as one for recovery of possession. When the valuation was accordingly amended, the valuation exceeded the pecuniary jurisdiction of the Munsiff Court, Accordingly the plaint was returned to the plaintiff, who presented it before the Sub Court. That court granted a decree for recovery of possession of the plaint schedule properties. That decree was confirmed by a learned Judge of this Court in A.S. No. 355/88. This appeal is directed against the said judgement.
2. The plaintiff executed Ext. A18 (which is same as Ext. B12) agreement dated 19-7-1968 in favour of the 1st defendant and others agreeing to execute a usufructuary mortgage in respect of the plaint schedule property for a consideration of Rs. 2000/- in favour of the 1st defendant for six years and a simple mortgage in favour of the 2nd defendant, who is the wife of the 1st defendant for a consideration of Rs. 8000/- for a term of three years. On the date of Ext. A18 plaintiff received Rs. 2700/-. The balance amount of Rs. 300/- was to be paid within two months of the agreement. The plaintiff schedule properties were put in the possession of the 1st defendant on the date of agreement itself.
3. Defendants 3 to 11 are the children of defendants 1 and 2. Defendants 12 and 13 are the tenants in a shop building in the plaint schedule properties. Defendants 1 to 11 are residing in the building in the plaint schedule property. According to the plaintiff, he had not received the full amount mentioned in the agreement. However, to avoid unnecessary disputes he is conceding the receipt of the amount. Defendants are not entitled to retain possession of the properties. Accordingly the suit was filed for recovery of possession and for other reliefs.
4. Defendants 1 to 11 filed a joint written statement. According to them, in addition to Rs. 2,000/- paid by the 1st defendant, there is a total payment of Rs. 11,700.26 to the plaintiff. The defendants have effected valuable improvements in the property. They are also entitled to the benefit of S. 53A of the Transfer of Property Act. It was further contended that in 1971 there was an agreement for sale of the plaint schedule properties to the defendants for a total consideration of Rs. 15,000/-. The defendants are prepared to pay the balance amount. The plaintiff is not entitled to a decree for recovery of possession. In case recovery is ordered, the defendants are entitled to value of improvements as well as the amounts they have paid.
5. Plaintiff was examined as P.W. 1. The 3rd defendant was examined as D.W. 1. Plaintiff produced Exts. A1 to A28. Defendants produced Exts. B1 to 814. Exts. C1 to C3 are the Commissioner's reports and plan.
6. The trial court passed a decree in favour of the plaintiff for recovery of possession of the plaint schedule properties on deposit of Rs. 11,700.26. Mesne profits at the rate of Rs. 1,076/- per annum from the date of deposit was also allowed. The prayer of the defendants for a decree of specific performance was disallowed. In appeal a learned Judge of this Court confirmed the judgement and decree of the trial court. The points that arise in this appeal are the following : (i) Whether the defendants are entitled to the benefit of S. 53A of the Transfer of Property Act ? If so, what is the extent of that right ? (ii) Are the defendants entitled to value of improvements ?
7. To claim the benefits under S. 53A of the Transfer of Property Act, the defendants will have to satisfy the following conditions.
(1) That the plaintiff has contracted to transfer for consideration any immovable property by writing
