1. These appeals arise from the decree in a suit for redemption of a mortgage and purakkadom executed by deceased Kochukunju Raman in favour of defendants 1 to 3. The plaintiffs' case is that Kochukunju Raman was the karnavan of the Sakha to which they and defendants 9 and 10 belong, that the property was acquired in his name with the aid of funds provided by his father and that they are entitled to redeem the property on behalf of their, sakha. The mortgage right vested in defendants 4 to 6 and 8 on the date of suit. The plaintiffs claimed recovery of a sum of Rs. 3,000/- as damages for allowing part of the property, a paddy field, to get silted and mesne profits at the rate of 350 paras of paddy per annum.
The fourth defendant, a son of Kochukunju Raman, denied the plaintiffs title to redeem the property. According to him the property was the self-acquisition of Kochukunju Raman and the same devolved on his children. The claim for damages was denied. It was also contended that the annualmesne profits would amount to only 100 paras of paddy. The 8th defendant claimed title to 20 cents in the eastern part of the property under a revenue sale. As regards 2/3rd of the property in his possession under the mortgage, he stated that he was prepared to surrender to such person as was entitled to redeem. He too denied liability for damages. The court below held that Kochukunju Raman was the maternal uncle of the plaintiffs, that the property belonged to their thavazhi and that the plaintiffs were entitled to redeem. The 8th defendant's claim in respect of the 20 cents purchased in revenue sale was found against. The claim, for damages was disallowed. It was also found that the annual mesne profits would amount to only 120 paras of paddy, A. S. No. 192 has been preferred by the plaintiffs and A. S. No. 383 by the 4th defendant, from this decree. The 4th and 8th defendants have preferred a memorandum of cross objections in A.S. No. 192 claiming the 20 cents under the revenue sale, as well as the whole costs incurred by them.
2. A. S. No. 383 of 1955 may be considered first. This is the 4th defendant's appeal and the only point raised by him is that the plaintiffs are not entitled to redeem the property. The 4th defendant's case is that Kochukunju Raman was a junior member of the main tarwad, that the property was acquired by him with his own funds, that he had no sisters as alleged by the plaintiffs and that Chakki from whom the plaintiffs and defendants 9 and 10 have descended was not Kochukunju Raman's sister but a member of a different thavazhi. The court below upheld the plaintiffs' case on these points. The property was acquired in the name of Kochukunju Raman under Ext. H. dated 5-2-1046, According to the age given by Kochukunju Raman in Ext. XIV and other documents, he could not have been more than eleven years old on the date of Ext. H.
The property was in the possession of his father under Ext C of the year 1044 and the premium paid under Ext. C was treated as part of the consideration under Ext. H. The learned Judge found that the property was acquired in name of Kochukunju Raman by his father and that it should therefore be treated as the thavazhi property of Kochukunju Raman and his sisters. The question whether Kochukunju Raman had sisters will be dealt with later. At this stage it is sufficient to observe that the evidence referred to above sup-ports the plaintiffs' case that the property was acquired in Kochukunju Raman's name by his father, The acquisition made by a marumakkathayee father in the name of his son in the year 1046 must be treated as one for the benefit of the thavazhi.
3. It is also contended by the 4th defendant that Chakki was not the sister of Kochukunju Raman but that she belonged to another thavazhi. Ext. XIV, a partition deed by which the main tarwad became divided in 1081, no doubt supports the appellant. It is stated in Ext. XIV that Chakki and Kunjupennu belonged to a different sakha. Kochu-kunju Raman deposed in Ext. III that he had two sisters, Chakki and Kunjupennu. A decision on this point is unnecessary in view of the fact that Kochukunju Raman died in the year 1092 when the parties were governed by the customary law applicable to marurnakkathayee Ezhavas according to which his property would have devolved on his thavazhi, and in the absence of a thavazhi, on the main tarwad.
The main tarwad became divided into several sakhas under Ext. XIV so that each sakba would have got a specific share in the property of Kochukunju Raman, The plaintiffs and defendants 9 and10 belong to one sakha and they are therefore entitled to maintain the suit. Even if the property had belonged to Kochukunju Raman, the result would have been the same. In these circumstances the court below rightly held that the plaintiffs were entitled to redeem. A. S. No. 383 must therefore be dismissed.
4. Coming to A. S. No. 192 of 1955, the three points raised by the appellants relate to (1) damages, (2) mesne profits and (3) costs.
5. The claim for damages is based on the allegation that part of the plaint property became silted up and unfit for paddy cultivation due to the negligence of the mortgagees. The defence was that there was a water channel to the south of the plaint property, that the Government took up the construction of bunds for the same as well as a spillway from the plaint property to the channel, that the bunds of the field were demolished by the Government for this purpose, and that silt entered through the opening as the work of construction was completed only after two years.
The mahazar prepared by the commissioner shows that the bed of the channel is higher than the plaint property and that there is likelihood of flood water escaping into the field through the spillway and depositing silt there. The second plaintiff admits that it took two years to complete the construction of the spillway. A mortgagee in possession of property is liable for active waste committed by him but permissive waste stands on a different footing, the question of damages depending on whether the mortgagee has been guilty of gross negligence. Dealing with this question, Ghose in his law of Mortgages in India observes :
'The liability of a mortgagee in possession for involuntary waste raises a more difficult question. In Wragg v. Denham ((1836) 2 Y and G Ex 117) where the liability of a mortgagee for deterioration of the mortgaged premises was discussed, Alderson, B., in giving the judgment of the court said : 'It is clear that a mortgagee ought not to be charged with deterioration arising in the ordinary way, by reason of houses and buildings of a perishable nature decaying by time which was the case in Anstruther. There the mortgagee was in possession of the premises for forty years, and during so long a time the decay would naturally take place even supposing the premises to be repaired in the meantime in the ordinary way. I think, also, that a mortgagee ought not to be charged exactly with the same degree of care as a man is supposed to take who keens possession of his own property. But if there be gross negligence, by which the property is deteriorated in value, the mortgagee who is in possession is trustee for the mortgagor to that extent, that he ought to be made responsible for that deterioration during the time of his possession. It is not necessary to go the length of showing fraud in the mortgagee, gross negligence is sufficient.'
In another case, it was said that a mortgagee is not bound to keep up buildings in as good repair as he found them, if the length of time will account for their being worse. The Transfer of Property Act, however, seems to insist on a higher standard, for it says that the mortgagee must manage the property as if it was his own; but the words must not be read too literally'.
This principle was consistently being followed by the High Court of Travancore (see Bagavati v. Kaliampi Mathavan Kolappa Pillai's I. U. Decisions 159; Abdulla Sait v. Thrasiyal Lopez 14 Trav LJ 378 and Gnanamuthu v. Thanuvan, 17 Trav L.T.345). It may also be pointed out that the Transfer of Property Act was not in force in Travancore eitherat the time when the land became silted up or even when the suit was filed.
6. There is another aspect also to be considered. It was provided under the mortgage deed that the mortgagees were to apply the whole income towards interest on the mortgage money so that there was no surplus to be expended on major protective works. Mulla in his Commentary on Transfer of Property Act points out:
'. . . . .But the mortgagee in possession is not bound to spend money on necessary repairs, unless there is a surplus left after deducting interest and money paid for public charges. Hence the use of the words 'rents and profits' in this clause (d) which are less extensive than the word 'income' in clause (c). The mortgagee's liability in England is similarly limited, for the mortgagee is not bound to increase his debt by spending money on repairs, If the parties dispense with an account, the mortgagee cannot charge for repairs.' On the evidence it cannot be said that the mortgagees were guilty of gross negligence. It is not as though they demolished the bund and left it like that. According to the commissioner the bund did not form part of the property and the Government demolished it in order to make new bunds and a spillway. It is admitted by P.W. 3 that it was through the breach in the bund thus made, that silt entered the land. The mortgagees could not interfere with the work done by the Government and they could not anticipate that the same would go on for two years or more. It was stated that they had at least a duty to inform the mortgagors about the position.
It is seen from the evidence that the plaintiffs were residing in a property adjacent to the plaint property and they must have been aware of the gradual silting up of the plaint property. The commissioner's report further shows that the portion which was silted up was being used for sugar-cane cultivation. It is well known that the cultivation of sugar-cane is more profitable than paddy and it is probably on account of this that the mortgagors also did not do anything to prevent accumulation of silt on the property. We are unable to hold that the mortgagees were guilty of such gross negligence so as to render themselves liable for damages.
7. Learned counsel for the appellants stated that the aspects mentioned above were not considered by the trial court and that the proper course would be to remand the suit. We do not feel justified in remanding this suit which has been pending for fourteen years, as the point involved is simple and as both parties have adduced evidence on the issue.
8. The next point relates to mesne profits allowed by the lower court. The plaintiffs claimed 850 paras of paddy per annum as mesne profits but the court below estimated the same at 120 paras of paddy. The defendants contended that the annual mesne profits would not exceed 100 paras of paddy. The plaintiffs did not adduce satisfactory evidence to show what the profits would be. We do not therefore feel justified in interfering with the decision of the court below on this point.
9. The last point raised by the appellants relates to costs disallowed to the plaintiffs. Defendants 4 and 8 were allowed one-half of their costs in respect of the claim for damages while the plaintiffs were disallowed their costs. The plaintiffs have failed in respect of the said claim and the suit being one for redemption, it cannot be said that in disallowing the plaintiffs their costs the court below exercised its discretion in a perverse or arbitrary manner.
10. The memorandum of objections filed by defendants 4 and 8 remains for consideration. The two points raised are (1) that the 8th defendant's claim in respect of the plot of 20 cents purchased by his predecessor in revenue sale should have been upheld and (2) that the entire costs of defendants 4 and 8 should have been allowed,
11. As regards the first point it may be stated that the 4th defendant alone is interested in upholding the revenue sale. The mortgagors defaulted to pay the tax in respect of some other properties and this brought about the attachment and sale of 20 cents in the plaint property. Ext. VII is the sale certificate in respect of the same and it is seen that 20 cents in the eastern part of the plaint property was sold on 31-11-1109. One Krishnan Sankaran purchased the property in revenue sale. The 7th defendant sued Krishnan Sankaran in O. S. No. 211 of 1118 for specific performance of a contract, Ext. O, to sell the 20 cents to him.
As a result of this litigation Krishnan Sankaran sold the 20 cents to the 7th defendant and the latter sold it to the 8th defendant. Neither the 7th nor the 8th defendant had an interest in the mortgaged property at the time they took assignments of the auction right. Learned counsel for the plaintiffs frankly conceded that Section 90 of the Indian Trusts Act was not attracted in the circumstances. It was however contended that the 8th defendant treated this property as still covered by the mortgage. This contention is based on the fact that when he took an assignment of two-third of the mortgage rights he paid two-third of the mortgage money as consideration without deducting the proportionate mortgage money chargeable on 20 cents. It is however seen from the assignment deed. Ext. XVI, that the 23 cents purchased in revenue sale was specifically excluded and that the assignment was only in respect of the mortgage right relating to the rest of the property. In these circumstances the 8th defendant's claim must be upheld and we do so accordingly,
12. The other points raised in the memorandum of objections relates to the decree for costs. Defendants 4 and 8 claimed full costs incurred by them in the court below. The 4th defendant denied the title of the plaintiffs to redeem and the court below was therefore justified in denying him costs in respect of the mortgage money. The 8th defendant did not question the plaintiffs' title to redeem. He denied the claim for damages and set up title to the 20 cents sold in the revenue sale and he succeeded in respect of the former in the court below and the latter here. He is therefore entitled to his full costs in the court below.
13. In the result, the decree passed by the court below is modified as follows : The 8th defendant title to the plot of 20 cents sold in revenue sale is upheld and the plaintiffs are allowed to redeem and recover possession of only the rest of the property. The 8th defendant is allowed to recover the whole costs incurred by him in the court below from the plaintiffs. A. S. No. 192 of 1955 and A. S. No. 383 of 1955 are accordingly dismissed with costs. The memorandum of cross objections in A. S. No. 192 of 1955 is allowed to the extent indicated above. The parties will bear their costs in respect of the memorandum of cross objections.