Eliyangattail 4th Sree Kanda Rajah vs Kununi Tharayil Ammu and Another

Pandrang Row, J.—This is an appeal from the order of the District Judge of South Malabar, dated October 20, 1932, in A.S. No. 507 of

1931 allowing the appeal with costs. The appeal was preferred by one Ammu from the order of the District Munsif of Ponnani, dated June 18,

1931, in E.A. No. 1658 of 1930 in O.S. No. 50 of 1927. Ammu was the mortgagee from the original kanom tenant Moidu and he instituted a suit

on the mortgage (O.S. No. 50 of 1927), and brought the mortgaged property to sale and purchased it himself. Delivery was obstructed by several

persons and one of them is the appellant here. The present appeal relates to a portion of the mortgaged property. The appellant obtained his title

from one Gjpala Menon who in turn got it in Court sale of the rights of one Karunakara Menon who had obtained an assignment from the widow

of Moidu acting on her own behalf and also as guardian of her minor children under Ex. E. The District Munsif dismissed the petition of Ammu,

that is respondent No. 1, on the ground that, after the execution of a rent deed jointly by Moidu and his wife Dayamma, the original separate

holdings came to an end and a new joint holding came into existence, and that therefore Moidu had no complete title of the property mortgaged by

him to Ammu. This view was dissented from by the District Judge who found that the execution of the joint rent deed did not have this necessary

result in law and that the circumstances of the case showed that no such change in the nature of the original tenancies was intended to be effected.

It is contended in this appeal that the view of the learned District Judge is wrong and reliance is placed on certain observations in Manavedan

Thirumalapad v. Parry and Co. Ltd. AIR 1925 Mad. 1277 : 90 Ind. Cas. 729 : 41 M 815 : 49 M.L.J. 390, but these observations do not really

support the contention.

The fiction of an implied surrender whenever a fresh lease is granted is not part of the law of this country and there is no justification for the

importation of the fiction in a case of this kind where it is clear that the parties could never have intended to put an end to the original tenancies by

merely executing a rent deed jointly in favour of the jenmi in respect of the properties included in both the original tenancies. As observed by the

learned District Judge, where the landlord is not willing to accept separate rent deeds from tenants who have acquired individual rights to separate

plots in the holding, they have no option but to execute a joint rent deed and such execution of a joint rent deed does not necessarily, and should

not necessarily, lead to the inference that the parties who executed the joint rent deed intended to put an end to their separate rights. The appeal,

therefore, fails on the main ground urged.

It is, however, contended that the amount of the compensation for improvements to which the appellant is entitled should have been ascertained

and such compensation awarded to him before the obstruction was ordered to be removed. It is seen from the Munsifs judgment that what was

sold in execution of the decree to Ammu was only the right of the executant Moidu and it was definitely stated before the sale that the

improvements belonging to his assignees cannot now be sold in the absence of any allegation in the plaint that such improvements are also liable as

accretions to the mortgaged property. It is clear, therefore, that there was no decision either in the judgment in O.S. No. 50 of 1927 or in the

proceedings in execution of that decree that the improvement; if any, made by the appellant who is one of the assignees of a portion of the property

was an accretion to the mortgaged property and as such liable for the claim in O.S. No. 50 of 1927. As there was no decision in the affirmative in

favour of the plaintiff in that suit, it must be held that these improvements, if any, are not liable for the claim in that suit. There must, therefore, be an

enquiry by the first Court as to the value of the improvements, if any, made subsequent to the date of Ex. E, in the portion of the property assigned

under that document (i.e., the property in the A schedule) and the value of such improvements, if any, must be paid by respondent No. 1 to the

appellant before the obstruction is actually removed.

As the appeal fails for the most part and the claim for compensation for improvements is a comparatively minor matter, the appellant will not

have his costs of this appeal.