The main legal point established in the judgment is that under the Malabar Compensation for Tenants Improvements Act, the mortgagee remains in possession as a mortgagee until compensation is actually paid, even if tendered, and the legislative intent regarding the payment of compensation was emphasized.

Saiasiva Aiyar, J.

1. The 2nd plaintiff in this suit for redemption is the appellant before us. The two questions for consideration are, (1) whether a mortgagee tenant to whom the Malabar Compensation for Tenants Improvements Act applies is bound to pay mesne profits from the date of tender of the amount due under the mortgage into court when it was found that the money so tendered sufficiently covered the compensation for improvements also, (2) Whether the 2nd plaintiff melcharatdar is under the circumstances of this case entitled to his costs.

2. The answer to the first question depends entirely upon the construction to be placed upon Sections 5 and 6 of the Malabar Improvements Act (I of 1900) and especially Section 5. Omitting the words immaterial for our purpose, Section 5 is as follows: (1) "Every tenant" (which includes a mortgagee in possession) "shall on ejectment be entitled to compensation for improvements for which compensation has not already been paid; and every tenant to whom compensation is so due shall be entitled to remain in possession until ejectment in execution of a decree or order of court". (2) "A tenant" (Mortgagee) "so continuing in possession shall during such continuance, hold as a (mortgagee)" "tenant subject to the terms of his mortgage".

3. I think the language is plain that till compensation is actually paid (mere tender not sufficing) the mortgagee remains in possession as mortgagee (not as trespasser or trustee) notwithstanding a valid tender. It is not difficult to find reasons for this exceptional favouring of the Malabar tenants by the legislature there being other such exceptional provisions in the Act, such as the re-opening of decrees in execution in the matter of compensation for improvements, the allowing of a mortgagee or tenant to continue to make improvements notwithstanding the passing of a decree and so on. Mr. Ramachandra Aiyar, the learned Vakil, for the appellant relied on the decision of two learned Judges of this Court (Coutts Trotter and Seshagiri Aiyar, JJ.) reported in Chami v. Anu Pattar (1916) M.W.N. 160. With the greatest respect, I am unable to agree with that decision. In the judgment of Coutts Trotter, J., Section 5 is quoted but without the reproduction of the clause " for which compensation has not already been paid." That learned Judge was not inclined to adopt the literal construction of the section, because he thought that that was "a wholly unreasonable construction of the Act and would permit wholly unreasonable conduct on the part of the tenant". Mr. Justice Seshagiri Aiyar, says that "under Section 5 Clause 2, the tenant is bound to pay the mesne profits". As far as I could see, under Clause 2 he is not bound to pay the mesne profits but only the purapad mentioned in the kanom mortgage. Even in a previous portion of the learned Judges judgment, he says that where the mortgage money has been tendered and where the relation of landlord and tenant subsists between the parties, " the liability to pay mesne profits" to the landlord also subsiss. Of course, rent is usually paid out of the mesne profits (though rent may have to be paid even if the tenant is unable to obtain any mesne profits) and probably that is what the Judge means in the former portion of his judgment about mesne profits being payable to the landlord, mortgagor. The question of unreasonableness of consruction is relevant in considering the meaning of a statutory provision, only where the language is reasonably capable of two constructions, one reasonable and the other unreasonable (see Maxwell on the Interpretation of Statutes, Chapter VIII). Supposing, however, there is some ambiguity in an act, then the preamble and the object of the Act can be referred to as has been done by the Privy Council recently in the Urlam Case, Kandukuri Balasurya Prasada Row v. Secretary of State for India (1917) 33 M.L.J. 144 (P.C.). In Administrator General of Bengal v. Premlal Mullick (1895) I.L.R. 22 C. 788