G. Viswanatha Iyer, J.
1. Defendants 2 to 9 are the appellants. The Second Appeal is from a final decree in a suit for partition and redemption of plaintiff's 3/56 share. In passing the final decree the appellants' claim for protection under Section 4-A (1) (a) and (b) read with Section 13 of Act of 1964 was rejected by the trial court as well as the first appellate court on the sole ground that in S. A. No. 1044 of 1968 filed against the preliminary decree the appellants' attempt to raise this ground was rejected by this Court by the following order:--
'As the finding of the Munsiff regarding the nature of Ext. A-1 was not challenged at the time of the argument before the lower appellate court, I do not find any reason to allow the additional grounds to be raised in the second appeal. Dismissed'.
Ext. A1 referred to in this order is the mortgage sought to be redeemed. The appellants had pleaded in the trial court that the said document is a lease and that they have fixity of tenure. They had also denied the plaintiffs right for a share in the equity of redemption. The trial court found that Ext. A1 is only a usufructuary mortgage and not a tease. The plaintiffs right for 3/56 share was also recognised. In the appeal against that decree plaintiffs right for a share was alone questioned at the time of hearing and the Subordinate Judge did not accept it S. A. No. 1044/68 referred to earlier was filed against that decree. Pending appeal Act 35 of 1969 came into force on 1-1-1970. Ext. Al transaction is dated 25-4-1900. Under Section 4-A (1) (a) and (b) certain mortgagees in possession are to be deemed tenants entitled to fixity of tenure. The appellants wanted to amend the memorandum of second appeal and to raise two grounds regarding their claim for benefits of Section 4-A (1) (a) and 4-A (1) (b). This was rejected by the order referred to above and the appeal was also dismissed con-firming the preliminary decree passed by the trial court. When the matter went back the appellants put forward their alleged right under the above clauses of Section 4-A against the plaintiff's request for a final decree. That was rejected by the lower courts on the ground of res judicata on account of the above order in the second appeal. While supporting that decision the respondents' counsel also referred to Section 108, Sub-section (3) of Act 35 of 1969 in support of his contention that the failure of the appellants to get their claim for benefit under Section 4-A adjudicated in the earlier second appeal debars them from agitating the question over again at the stage of the final decree proceedings. The appellants argued that they were not bound to agitate their claim at that stage and that this order relied on will not constitute res judicata inasmuch as it does not purport to reject their claim on the merits. They further urge that at the time when the above order was passed Section 4-A (1) (a) and (b) had been struck down as unconstitutional in Narayanan Damodaran v. Narayana Panicker Parameswara Panicker (1971 Ker LT 484) = (AIR 1971 Ker 314 (FB)) and they were salvaged only when Act 35 of 1969 was included in the Ninth Schedule by the 29th amendment of the Constitution in June, 1972. Therefore, they claim a fresh right to agitate the question over again. I shall deal with these two rival contentions separately.
2. The inclusion of Act 35 of 1969 in the Ninth Schedule does not give a fresh right to the appellants to urge their claim for benefit over again. The effect of inclusion of an enactment in the Ninth Schedule to the Constitution was considered by the Supreme Court in L. Jagannath v. Authorised Officer L. R. Madurai (AIR 1972 SC 425). In paragraph 23 it is observed thus:--
'Apart from the question as to whether fundamental rights originally enshrined in the Constitution were subject to the amendatory process of Article 368 it must now be held that Article 31B and the Ninth Schedule have cured the defect, if any, in the various Acts mentioned in the said Schedule as regards any unconstitutionality alleged on the ground of infringement of fundamental rights, and by the express words of Article 31B such curing of the defect took place with retrospective operation from the dates on which the Acts were put on the statute book. These Acts even if void or inoperative at the time when they were enacted by reason of infringement of Article 13(2) of the Constitution, assumed full force and vigour from the respective dates of their enactment after their inclusionin the Ninth Schedule read with Article 31B of the Constitution.'
In the light of this decision it is not open to the appellants to contend that Section 4-A (1) (a) and (b) has legal force only from the date they are included in the Ninth Schedule. The inclusion of Act 35 of 1969 in the Ninth Schedule gives legal validity to the Act from the date it came into force, namely 1-1-1970. That being so, when the second appeal was disposed of on 9-7-1971 Section 4-A (1) (a) and (b) must be deemed to be in force. Then the next question is whether the appellants should have got their claim adjudicated in that second appeal itself failing which they will be precluded from raising this claim at a later stage in the proceedings. Section 108 (3), as it stood at the time when the second appeal was disposed of, was in the following terms:--
'All suits, applications, appeals, revisions, reviews, proceedings in execution of decrees and other proceedings with respect to any matter arising under and provided for by the principal Act, pending before courts, tribunals, officers or other authorities at the commencement of this section, shall be disposed of in accordance with the provisions of the principal Act as amended by this Act'
This Section was later amended by Act 25 of 1971 which came into force on 11-8-1971. The amendment dates back to the -date of the coming into force of Act 35 of 1969, namely 1-1-1970. The substituted Sub-section (3) is in the following terms:--
'If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.'
It will be seen that the original Sub-section (3) of Section 108 did not require and did not enable persons like the appellants to claim the benefit of fixity of tenure conferred by Act 35 of 1969 in the pending proceeding. Only proceedings taken under the principal Act with respect to matters arising under or provided for by the principal Act were required to be disposed of in accordance with the amended Act. The present claim of the appellants did not arise under the principal Act Therefore, it was not obligatory onthe part at the appellants to have claimed in the second appeal the benefit of the fresh right, if any, which accrued due pending the second appeal. The decision in an appeal will normally relate to the rights that were available to the parties at the time of the institution of the suit only. Any fresh right accruing due pending the proceeding will not be deemed to have been adjudicated upon. The appellate court may no doubt take into account subsequent events including change of law and mould the relief in accordance with such law; but the court is not bound to do so and the parties are not precluded from claiming such fresh benefits separately or at the subsequent stages of the proceedings.
3. Then the question is how far the amendment of Sub-section (3) of Section 108 with retrospective effect from 1-1-1970 will alter the position. This amendment came after the decision in the second appeal. Under the amended sub-section if any person claims a benefit under Act 35 of 1969, the court shall decide such claim in the pending proceeding itself. This provision does not require that the claim for benefit should be raised and got decided in the second appeal itself at the risk of a bar to urge it at a subsequent stage. A party is allowed to claim the benefit. If there is a decision on the merits of that claim that will conclude him finally. But, a party who is not allowed to urge it cannot be debarred from urging it at a subsequent stage of the same proceeding. The respondents' counsel stated that the order refusing amendment of the appeal memorandum amounts to a decision on the merits of the claim for the benefit. I do not think so. With respect, whatever else it may amount to this does not amount to an adjudication of the merits of the claim. The reason given in the order seems to be totally unconnected with the adjudication of the merits of the claim. In this view, I hold that the order rejecting the petition for amendment of the appeal memorandum does not preclude the appellants from raising this claim over again at the final decree proceedings. The courts below are not right in holding that the above order concludes either expressly or impliedly the plaintiff's right to agitate this question over again. The decision in the earlier second appeal also does not preclude the appellants from raising this plea over again in the final decree proceedings. Therefore, the court has to adjudicate on the merits of the claim urged by the appellants.
4. The plaintiff-respondents counsel contended that the appellants are not entitled to the benefit of Section 4-A even on themerits, and in that connection he stated that the mortgage amount specified in the preliminary decree was deposited by the plaintiff as early as on 1-6-1966 and thereafter on the terms of the preliminary decree the appellants were in possession of the plaintiffs share only in their capacity as co-owners with liability to account for profits and not as mortgagees. Therefore, on the date when the Act came into force they were not mortgagees as such in possession. There is some force in this contention. It is for the trial court to look into it. He also urged that there is no proof to show that the appellants satisfied all the conditions specified in Section 4-A (1) (a) and (b). Ext. A-1 directs the mortgagees to redeem a prior mortgage. There is no evidence to show when that prior mortgage was redeemed. Further, some, if not all, of the properties were in the hands of lessees under the mortgagees and these leases were terminated and the mortgagees took possession some time before suit. Whether the mortgagees can include the period during which their lessees were in possession in reckoning the period of continuous possession of 50 years is also a matter that arises for determination. These matters can be decided only on ascertainment of the various facts which have not been done by the courts below.
5. Therefore, I allow the second appeal, set aside the judgments and decrees of the courts below and remand the final decree proceedings for fresh disposal in accordance with law and in the light of the observations made above. The parties may be given an opportunity to file statements of their respective contentions and on that to let in such evidence as they may deem necessary before the matter is finally decided. The parties shall bear their costs of this second appeal.
6. Send the records to the trial court forthwith. The lower court will dispose of the matter in three months of the receipt of the records there.