T.K. Joseph, J.
1. This appeal arises from a suit for redemption of a mortgage. Item No. 1 in the plaint schedule and other immoveable properties were mortgaged with possession by the plaintiffs' tarwad to Defendants 1 and 2 under Ext. B dated 16-1-1086. Defendants 3 and 4 took an assignment of the mortgage and by a deed of dissolution of partnership executed by them, the said right became vested in the 3rd defendant. Plaintiffs 1 and 2 obtained the equity of redemption under two partition deeds of 1104 and 1113. They sold the equity of redemption to the 3rd plaintiff and a decree was prayed for in his favour.
2. Defendants 3 and 4 who were bound to pay the land tax on the mortgaged property are alleged to have committed default in payment of the same with the object of acquiring the equity of redemption by purchase in revenue sale. The default actually resulted in the sale of 40 cents in item No. 1 in revenue auction and though the ostensible purchaser was a stranger, the purchase was alleged to have been on behalf of Defendants 3 and 4. The nominal rights of the auction purchaser were later acquired by the 3rd defendant. The plaintiffs sought for recovery of this plot treating Defendants 3 and 4 as mortgagees in possession of this plot also.
There was also a claim for recovery of damages on account of waste alleged to have been committed by mortgagees. The plaintiffs' case was that the integrity of the mortgage had become broken and that the proportionate mortgage money chargeable on item No. 1 was Rs. 1200. Item No. 2 in the plaint schedule is a chapra and item No. 3, another building both put up by the mortgagees. The plaintiffs prayed for redemption of the mortgage in respect of item No. 1 for removal of item No. 2 and for recovery of possession of items 1 and 3 on payment of the value of improvements and also for recovery of mesne profits and damages for waste. The 3rd defendant died during the course of the suit and his legal representatives were impleaded as additional Defendants 14 to 19. The 7th defendant also died and his heirs are additional Defendants 8 to 13. Of the original defendants, the 5th defendant is the wife of the 3rd defendant.
The 3rd defendant filed a written statement and his main contentions, were that the plaintiffs were not entitled to recover possession of the plot sold in revenue sale and subsequently purchased by him, that he was entitled to the value of improvements, that no waste had been committed, that the claim for damages was not sustainable, and that the rate at which mesne profits was claimed was excessive. After his death, his widow the 5th defendant filed a written statement contending that the 3rd defendant had convoyed his rights overthe property to her and stating that she was adopting the contentions of her husband. The 7th defendant claimed that item No. 3 belonged to him and that be was entitled to the value thereof. The 8th defendant stated that he was adopting the contentions of the 7th defendant. On behalf of Defendants 17, 18 and 19, their guardian filed a written statement claiming the amounts deposited by the plaintiff.
3. The court below passed a decree allowing redemption of the whole property inclusive of the plot sold in revenue sale. The claim for damages on account of waste was disallowed. Besides the mortgage money, the 3rd plaintiff was directed to pay a sum of Rs. 1751-8-3 as compensation for improvements inclusive of item No. 3. It was also directed that the 3rd defendant was to remove item No. 2 within 4 months of the date of decree failing which the plaintiff was to recover possession of the same on payment of Rs. 205. The 3rd plaintiff was also allowed to recover a sum of Rs. 5-10-0 as arrears of onakazcha and mesne profits, at the rate of Rs. 206-10-0 per annum. The defendants were directed to establish by a separate suit their respective claims to the mortgage money and value of improvements. The plaintiffs and defendants were also asked to bear their respective costs. The 5th defendant has preferred this appeal from the decree passed by the court below.
(4) The two points raised on behalf of the appellant are :
(1) That the title acquired under the revenue sale should have been upheld; and
(2) That the value of improvements should be reassessed.
5. As regards the first point a few facts have to be stated. The mortgage deed Ext. B provides that the mortgagees should pay the land revenue on the property mortgaged. The tax due in 1111 on item No. 1 was admittedly not paid. Ext. D shows that the total amount of tax defaulted in 1111 was Rs. 13-24-9. The arrears of tax due on the date of sale was Rs. 5-9-1. It is not clear from Ext. E that tax on item No. I was paid in 1110. The tax receipt for 1110 has not been produced. However it is clear from Ext. D that besides the tax on item No. 1, the tan on some other property belonging to the mortgagors had not been paid in 1111.
6. It is contended on behalf of the appellant that the revenue sale was brought about partly on account of the default of the mortgagors also and that the principle of Section 90 of the Indian Trusts Act was not therefore applicable to this case. So long as defendants 3 and 4 were defaulters it is not open for them to contend that the revenue sale was not brought about by their default. Reliance was placed by the appellant on the decision of Devadoss, J. in Nagaswami Aiyar v. Ramaswami Aiyar, AIR 1925 Mad 288. In that case the plaintiff as well as the defendant who owned different items of properties defaulted payment of land revenue and a property of the plaintiff was brought to sale for recovcrv of arrears of tax and it was purchased by the defendant. The plaintiff brought the suit on the allegation that the purchase by the defendant enured to his benefit also. It was held that the plaintiff and the defendant were not co-owners and that Section 90 did not therefore apply.
This decision has no application to this case which is clearly one similar to Illustration (c) of Section 90 of the Trusts Act. Deo Saran Singh v. Barhu Singh, AIR 19.52 Pat 286 is a decision of a Bench of the Patna High Court which is more applicableto this case. In that case also a contention similar to this was urged by the mortgagee who had purchased the equity of redemption in revenue sale brought about by the default of the mortgagor and the mortgagee. It was held that the mortgage interest would continue to exist notwithstanding the sale so long as the mortgagee was also in default. It cannot therefore be held that Section 90 is not applicable to this case.
7. It was also urged that the finding of the court below that the purchase in revenue sale as well as the subsequent transfer by the purchaser were benami for defendants 3 and 4 could not be supported. The court below has dealt with the evidence relating to this aspect of the case elaborately and come to the conclusion that the purchase as well as the later transfers were on behalf of defendants 3 and 4. The purchaser in revenue sale was one Pylo Ouseph. He purchased it on 7-11-1111 for Rs. 20-14-0 and before obtaining delivery of possession, ho sold it on 21-11-1112 to one Thoma Joseph a servant of Defendants 3 and 4.
The latter after obtaining a record of delivery executed a sale deed Ext. A to the 3rd defendant on 13-12-1117 for Rs. 49/-. The consideration for Ext. A is said to have been the amount due from Thoma Joseph to the joint trade of Defendants 3 and 4 as excess salary drawn by him. This debt fell to the share of the 4th defendant on dissolution of partnership and it was stated that the 3rd defendant had paid it to the 4th defendant. Tha consideration for which Thoma Joseph parted with his property is only a nominal sum of Rs. 49.
According to Ext. 1 Thoma Joseph got delivery of possession of this plot on 20-8-1114. However he does not state in Ext. A that he is in possession. On the other hand Ext. A would indicate that Defendants 3 and 4 continued to be in possession notwithstanding the record of delivery. The deed of dissolution Ext. F was executed before the date of Ext. A and the whole of item No. 1 was set apart to the share of the 3rd defendant notwithstanding the revenue sale and the alleged delivery of possession to Thoma Joseph.
If Thoma Joseph was the real purchaser, this plot would have been excluded in Ext. F especially as he had obtained a record of delivery relating to this plot. Thoma Joseph who was examined as P.W. 4 deposed that he made the purchase on behalf of Defendants 3 and 4 and that he did not have to invest any amount. In the nature of the evidence we are satisfied that the court below came to the correct conclusion in holding that the purchase in revenue sale as well as the later transfer to Thoma Joseph were on behalf of Defendants 3 and 4.
8. It follows that Defendants 3 and 4 who are liable to pay the tax on the mortgaged property defaulted to pay the same, that such default resulted in the sale of part of the mortgaged property and that the defendants became purchasers thereof. These findings lead to the conclusion that the mortgagees by availing themselves of their position as such gained an advantage in derogation of the rights of the mortgagors and that they should be deemed to hold the advantaee so gained, for the benefit of the mortgagors. The appellant is therefore not entitled to succeed on this point.
9. The next question is whether the improvements should be reassessed. After this appeal was filed, the Travancore-Cochin Compensation for Tenants Improvements Act, X of 1956 was passed and the appellant claims that apart from the other grounds raised in the memorandum of appeal, heis entitled to have the value of improvements assessed according to the provisions of the new Act. The appellant has filed C. M. P. No. 625 of 1957 praying for revaluation of the improvements. In view of the appeal, the suit has to be deemed pending when the Act was passed and the court is bound to decide the question according to the provisions of the new statute under which tenants and mortgagees are entitled to higher amounts as compensation for improvements.
So far as this case is concerned it cannot even be contended that the finding on this point has be-come final since the appellant claims in appeal a higher amount as compensation for improvements. Relying on the decision of the Court of Appeal in Quilter v. Mapleson, 1882-9 QBD 672 and the House of Lords in the Attorney General v. Birmingham, Tame, and Rea District Drainage Board, 1912 AC 788 this court has held in Kunju Krishna v. P. K. Filial, 1958 Ker LT 645 : (AIR 1959 Kerala 38), that in such cases the appellate court is bound to decide the question of value of improvements in the light of Act X of 1956, if the appeal from the decree is pending on the date of the Act.
The fact that the trial court had already passed a decree by the time Act X of 1956 was passed is therefore of no consequence. This necessitates a remind of the suit to the trial court for fresh valuation of the improvements. However we wish to make it clear that such revaluation must be confined to the plantations in item No. 1, as item 2 the chapra is one which the defendants are liable to remove and as the value of item No. 3 does not call for modification in the light of the new Act,
10. Lastly it was contended that the 3rd defendant was entitled to the mortgage money and compensation under a gift deed executed by the 3rd defendant. The original deed was produced before us as a fresh document. As other defendants have also claimed this sum, it is not possible to decide in this suit the question as to who is entitled to mortgage money and value of improvements. The same will have to be decided in a fresh suit,
11. In the result we confirm the decree forredemption and this will he treated as a preliminary decree in the suit. The suit is remanded tothe court below to decide afresh the question ofvalue of plantations in item No. 1 in the light ofAct X of 1956 and to pass a final decree in respectof the same. The appeal is allowed to this extentonly and is dismissed in other respects. The appellant will pay one-fourth of the costs of the 2ndrespondent in this court and bear her own.