M. Madhavan Nair, J.
1. Ist defendant is the appellant. The suit property was mortgaged by one Cherakara tarwad in favour of the Jst defendant as per Ext. B dated 18-11-1096. The mortgage deed comprised of 4 items of property and separate amounts were advanced on security of each of these Items. Item 4 of the mortgage-holding has been assigned to a stranger by the mortgagee. One half of item 1 and item 3 were assigned by the 1st defendant in favour of his brother who is impleaded in this case as the 2nd defendant by Ext. 1 partition deed between them. One half of item 1 and item 2 were retained by the 1st defendant and this suit is for redemption of Ext. B mortgage so far as the properties retained by the 1st defendant are concerned. The plaintiff claims his title to redeem as per Ext. A sale deed which he has obtained from the mortgagor tarwad. The suit has been decreed concurrently by the courts below and in this Second Appeal four questions are raised namely:
1. The division of the property as between defendants 1 and 2 under Ext. I was not in equal halves but the 1st defendant was allotted 1771/2 dents at the south of the property while Only 1724 cents were given to the 2nd defendant. The mortgage amount has therefore to be apportioned in accordance with this division. (2) Some trees in the mortgage holding had been retained by the original mortgagor at the time of the sale of the equity of redemption to the plaintiff and therefore without the original mortgagors also on the party array thin suit is not sustainable, (3) The suit is for partial redemption of the mortgage and as such is not maintainable. (4) The value of improvements awarded is too low, and it should be reassessed as per the new Act, viz., the Kerala Compensation for Tenants Improvements Act, 29 of 1958.
2. The deed of partition Ext. I was read in extenso at the Bar. Item 1 is 345 cents in extent. Of this, 1721/2 cent have been assigned to the 2nd defendant as per Ext. I. In describing the portion retained by the 1st defendant, it has been stated that such portion is 1721/2 cents in extent with 5 cents at its north which is in the form of a chira. The contention of the learned counsel for the appellant is that this five cents must be construed as in excess of 1721/2 cents otherwise stated in the allotment. It is not contended that the description of the area of the entire item as 345 cents is incorrect. If so, after having allotted 1721/2 cents to the 2nd defendant, there can only be another 1721/2 cents that can be retained by the 1st defendant, I agree with the concurrent findings of the courts below that the chira of 5 cents mentioned in the portion retained by the 1st defendant is part of the 1721/2 cents retained by him at the south of item 1 of the mortgage holding and therefore the apportionment of the mortgage amount made by the courts below is also correct.
3. This suit was instituted on 25-10-1121. There was no contention taken at any time by the 1st defendant that the original mortgagors, in whom the right to the trees mentioned in Ext. A have been retained, also should be made parties to the suit because the equity of redemption with regard to those trees can only be represented by them. A contention of non-joinder Of parties, under Order 1, Rule 9, C. P. C. ought to be taken before the settlement of issues in the ease. Such a contention has not been taken in proper time. It cannot now be entertained as a fresh plea in (the Second Appeal. This contention has not been taken even in the memorandum of appeal here but is sought to he advanced by a separate application to amend the memorandum and I have dismissed that to-day by a separate order.
4. The contention as to partial redemption is advanced on the ground that even though the mortgage has assigned a portion of the mortgage holding that will not bind the mortgagor and such an assignment cannot affect the normal rule of indivisibility of mortgages. The learned counsel relied on a ruling reported in Anand Singh v. Niamat, 64 Ind Gas 211 (2) (Lah), where it has been held that an assignment of a portion of the mortgage property by the mortgage will not break the mortgage so as to entitle the mortgagor to redeem a portion of the mortgage holding. That dictum can have no application to the facts of this case because here the 2nd defendant to whom a portion of the mortgage holding has been assigned by the 1st defendant has also purchased the equity of redemption in respect of that portion from the mortgagors. Where the equity of redemption over a share or a portion of the mortgage holding has been obtained by a mortgage the law is clear that the mortgage has become divided thereby and thereafter the mortgagor can maintain a suit for partial redemption in respect of the mortgage. In this view I hold that the contention that the suit is bad for being one for partial redemption, cannot be accepted.
5. Now we come to the question of value of improvements. The learned counsel for the appellant strenuously contended that with regard to the Vettozhivu, i. e., for removal of the silt that was deposited in the property at the time of the mortgage Rs. 350/- has been provided for in the mortgage deed and one half of that amount alone has been allowed by the courts below on the ground that the suit is to redeem one half of item 1 which alone was concerned with the provision for Vetto-zhivu, whereas the commissioner who was deputed to make a local inspection and assess the compensation for Vettozhivu has reported that the cost of removal of such silt would amount to Rs. 388/-odd. Both the courts below have not allowed that amount on the ground that it is a matter covered by a specific provision in the document.
The learned counsel contends that in view of the provisions of Act 29 of 1958 the contact cannot debar him from claiming the full value of the Vettozhivu. There is no evidence in this case when the removal of silt was actually carried out by the mortgage. Ext. B mortgage deed expressly stated that at the time of the mortgage the deposit was there and provided Rs. 350/- as agreed to by both parties as the proper cost of the removal thereof. The natural inference from this provision must be that that amount would be a fair estimate of the actual cost of the removal of the silt and that such work also must have been executed within a reasonable time of the mortgage in 1096. There appears to have been no complaint between the parties at any time before the institution of this suit that the cost of such removal as provided for in the document was low, or that the mortgagee had expended anything above that for carrying out that work. The estimate of the commissioner made after the institution of the suit which is more than 25 years after the event can only be based on surmise or imagination.
The learned counsel would press that the deposit had been directed to be put as a chira on either side of the mortgage holding and by now measuring the chira the exact extent of the silt that was removed could be estimated and therefore the commissioner's estimate should be accepted. I am unable to accept this contention either. The mortgage document itself mentions the existence of some chira on either side of the mortgage holding and the silt that has been removed as Vettozhivu has been directed to be put on the chira and to improve the same. There is no data at this distance of time as to the, size of the chira that existed in 1096, In this view the estimate made by the commissioner can only be held as imaginary and the only data that can be now relied on for assessing the value of the Veltozhivu is what is provided in the document. No question of law arises in this connection and therefore I over rule the contention of the learned counsel for the appellant on this matter.
6. With regard to the plantations the question is different. The compensation for improvements has been ascertained as the law stood before the introduction of the new Art which came into force in 1956 (Act 10 of 1956 re-enacted as Act 29 of 1958). The law as it stood before the enactment provided a totally different basis for valuation for such improvements. Now that the new Act has come into force, viz., Act 29 of 1958, before the suit has been closed, the appellant can claim the benefit of the provisions of that Act which entitle him to a greater compensation for his improvements. The learned counsel for the respondents could not make out anything against this claim of the appellant. In this view I direct the trial court to reassess the compensation of plantations made by the mortgage on the suit property as per the provisions of Act 29 of 1958 and incorporate the same in the final decree to be made in this case.
7. Subject to the direction made above, the Second Appeal is dismissed. But in the circumstances of this case, I make no order as to costs in this second Appeal.
8. The respondent has preferred a cross objection in this case in which he presses lor a reduction of the compensation for improvements awarded to the mortgage. As the compensation for improvements has been directed to be reassessed by the trial Court, there is no necessity for deciding the question raised in the cross-objections in this case. The plaintiff can move the matter before the trial court at the appropriate stage. The cross objection is therefore dismissed; but there will be no order as to costs with respect to that also,
9. As this is an old suit of 1121 and the mortgagor has deposited a pretty large sum as price ofredemption to be given to the mortgage, the trialcourt will do well to expedite the passing of thefinal decree in this case. It is expected that thetrial Court will do so within three months of thereceipt of the records there. The records will beforwarded to the court below without avoidabledelay.