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1987 Supreme(Mad) 11
High Court of Judicature at Madras
SRINIVASAN
Podikutty and Others
Versus
N. Rahiath Beevi and Others
S.A. No. 609 of 1984
Decided On :Decided on: 09-01-1987
For the Appellants:K. Sreekumaran Nair, Advocate.
For the Respondent:O.K. Sridevi, Advocate.
A mortgagee is entitled to the value of improvements made by him until an order of eviction is made against him.
Headnote:
MORTGAGE - REDEMPTION - VALUE OF IMPROVEMENTS - DETERMINATION - DATE OF PAYMENT OF MORTGAGE MONEY - RELEVANCE - TENANT'S RIGHT TO COMPENSATION FOR IMPROVEMENTS - CONDITIONS - INTERPRETATION OF RELEVANT PROVISIONS OF TRAVANCORE COCHIN COMPENSATION FOR TENANTS IMPROVEMENTS ACT, 1955 (ACT X OF 1956).
Fact of the Case:
Plaintiff filed a suit for redemption of a mortgage. A preliminary decree was passed directing the plaintiff to deposit a sum of Rs.96.25 as mortgage money. Plaintiff filed an application for passing of final decree, contending that the mortgage money got scaled down to zero under the provisions of Tamil Nadu Act IV of 1938. The trial Court appointed a Commissioner to ascertain the value of improvements made by the mortgagees. The Commissioner submitted a report valuing the buildings at Rs.3460-11 and the trees at Rs.2,498-59. The trial Court accepted the report and fixed the total value of improvements at Rs.5,958-70. The mortgagees appealed. The appellate Court set aside the report of the Commissioner and appointed another Commissioner to assess the value of improvements. The second Commissioner valued the buildings at Rs.6584-59 and the trees at Rs.3537-20P. The plaintiff and the purchaser from her filed objection to the Commissioners report. The appellate Court rejected the objections and adopted the value of the buildings fixed by the first Commissioner and the value of the trees fixed by the second Commissioner for the purpose of arriving at the total value of the improvements made by the mortgagees. The mortgagees preferred a second appeal.
Finding of the Court:
The Court held that the mortgagees were entitled to the value of improvements made by them until an order of eviction is made against them. The order of eviction can be made only when the mortgage money and the value of the improvements are deposited by the plaintiff. In the present case, the preliminary decree directed the plaintiff to deposit the mortgage money. The plaintiff herself admitted that she was liable to pay the value of improvements and she filed an application for passing of final decree. The contention that the relationship of mortgagor and mortgagee should exist when the mortgage money was deemed to have been paid under the provisions of Act IV of 1938 cannot be accepted for the simple reason that when the mortgage money was deemed to have been paid, it is only the liability of the mortgagor that ceased to exist and not the relationship. The provisions of Travancore Act X of 1955 are unambiguous in the matter of the mortgagees right to the value of improvements made by him.
Issues: 1. Whether the mortgagees are entitled to the value of improvements made by them until an order of eviction is made against them? 2. Whether the relationship of mortgagor and mortgagee should exist when the mortgage money was deemed to have been paid under the provisions of Act IV of 1938?
Ratio Decidendi: 1. The Court held that a mortgagee, who is defined as a tenant for the purposes of the Act, will be entitled to claim the value of improvements until an order of eviction is made against him. The order of eviction can be made only when the mortgage money and the value of the improvements are deposited by the plaintiff. 2. The Court held that the contention that the relationship of mortgagor and mortgagee should exist when the mortgage money was deemed to have been paid under the provisions of Act IV of 1938 cannot be accepted for the simple reason that when the mortgage money was deemed to have been paid, it is only the liability of the mortgagor that ceased to exist and not the relationship.
Final Decision: The Court allowed the second appeal and directed the respondents to deposit the sum of Rs.10,121.79 P. into Court towards the value of improvements.
1. Defendants 1 and 3 to 7 are the appellants, in this second appeal. The suit out of which this appeal arises was one for redemption of a mortgage;. A preliminary decree was passed on 13.10.1970. According to the preliminary decree, the plaintiff was to deposit a sum of Rs.96.25 as mortgage money. Alleging that by virtue of the provisions of Tamil Nadu Act IV of 1938 the mortgage money got scaled down to zero, the plaintiff filed I.A.No.1142 of 1980 for passing of final decree. In that application, the plaintiff stated as follows:
4. The preliminary decree directs the plaintiffs to deposit Rs.96-25 as mortgage money. No money need be deposited now because the entire mortgage money stands scaled down to zero under Act IV of 1938. I am filing another petition to amend the preliminary decree in this behalf.
5. The question of value of improvements has been, relegated to the final decree. If the defendants take out a commission and get the value of improvements assessed and adjudged, I shall pay such amount as is adjudged payable.
2. During the pendency of the application, the plaintiff sold her interest to one Madhavan Nadar, who got impleaded as the second petitioner in the said application.
3. As there was no dispute with regard to the entitlement of the defendants to the value of the improvements made by them, a Commissioner was appointed by the trial Court to ascertain the value of the improvements. The Commissioner submitted a report in which he valued the buildings at Rs.3460-11 and the trees at Rs.2,498-59. The trail Court accepted the report and fixed the total value of improvements at Rs.5,958-70 p. The plaintiff was directed to deposit the said amount. The mortgagees/defendants were not satisfied with the amount awarded by the trial Court. When the appeal was heard by the learned Subordinate Judge, he set aside the report of the Commissioner on 6.7.1983 and appointed another Commissioner to assess the value of improvements. The Commissioner appointed by the appellate Court submitted his report, marked as Ex.C2, with a plan attached thereto, marked as Ex.C3. The second Commissioner valued the buildings at Rs.6584-59 and the trees at Rs.3537-20P. The plaintiff and the purchaser from her filed objection to the Commissioners report. The main objection raised was that the Commissioner was related to the mortgagees and that they came to know of the same only when the Commissioner visited the suit property. The plaintiff had also raised certain objections regarding the valuation made by the Commissioner.
4. The learned Subordinate Judge rejected the contention that the second Commissioner was related to the mortgagees and that his report was vitiated on that account. The learned Subordinate Judge also rejected the other objection regarding the valuation of the trees and held that the value fixed by him with reference to the buildings could be taken to be the correct value. Consequently, the learned Subordinate Judge adopted the. value of the buildings fixed by the first Commissioner and the value of the trees fixed by the second Commissioner for the purpose of arriving at the total value of the improvements made by the mortgagees. In the result, the learned Subordinate Judge directed the plaintiff to deposit a sum of Rs.6997-31 as value of the improvements.
5. The mortgagees are aggrieved by the said judgment and decree of the learned Subordinate Judge and have preferred the present second appeal. Learned counsel for the appellants contended that the learned Subordinate Judge was wrong in adopting the value of the buildings as fixed by the first Commissioner when he had already set aside the report of first Commissioner. It is pointed out by learned counsel that in the order setting aside the Commissioners report, there was no reservation to the effect that it was being set aside only partially with reference to the value of the trees. Learned counsel relies upon the decision in KUTHIRAVATTATH KOGASSERI MOKSHATH THOT
