1. The question for decision is whether the defendants, tenants, holding under the mortgagor the 1st defendant, are entitled to get the value of improvements made by them on eviction by the purchaser in execution of the mortgage decree obtained by the plaintiff. We proceed on the footing that the lease to the defendants is subsequent to the creation of the mortgage. The plaintiff's case is that it was not open to a mortgagor to create any right in derogation of his mortgage. The defendants claim the value of the improvements under the Madras Act I of 1908. Section 5 of that Act declares the right of every tenant to receive compensation for improvements on ejectment. It is argued that this section entitles the tenant to receive compensation only from his lessor. There is no such restriction in the section itself. The definition of the term, (See Section 3) shows that it includes persons other than those included in the word as defined in the Transfer of Property Act and includes persons who did not enter into possession under any agreement with, or with the consent of, the person entitled to obtain possession of the property. The customary law leaves no doubt on the point.
2. In Major Watkin's Report on the land tenures of Malabar (1801) a recognised authority it is stated 'should there be a paramba without any known owner and a Kudian (tenant) believing that it was without a master settled on it and made considerable improvements, on the return of the Jemkar or any one producing sufficient proof that he was the owner of the paramba the Kudian must in that case without dispute accede to the demand provided the Jemkar pays kulikanom or the value of the improvements.'
3. Accordingly the ' tenant ' according to Section (3) includes any person who enters into possession of waste land without the consent of the owner but with the bonafide intention of paying the customary rent to the owner when ascertained. Similarly the holders of lands under cowles granted by Government received before the passing of the Act the value of improvements on surrendering the land to the Jenmi: so also tenants holding under invalid Kanoms, leases or mortgages granted by the Karnavan when surrendering the lands to the tarward tenants let into possession by a person claiming Jenmi title on eviction by the person to be the true Jenmi of the land also received compensation. The section accordingly defines tenants to include mortgagees as well as persons who in good faith believed themselves to be mortgagees or tenants. It is clear therefore that the defendants who are in possession as tenants under the mortgagor are ' tenants' within the definition and accordingly entitled to get compensation for improvements on eviction. It is not contended before us that the defendants are entitled to hold possession against the purchaser The decrees of the Lower Courts which direct the sale of the defendants' interest in the property will be modified by ordering the sale of the property subject to the right of the defendants to receive compensation for value of improvements. With this modification the decree is confirmed and the appeal dismissed with costs.