Sadasiva Aiyar, J.
1. The contentions as to the 1st defendant's (appellant's mortgagee's) right to addition compensation for improvements, (that is, in additional to what has been awarded to him by the lower court) raise questions of fact which we cannot entertain in second appeal.
2. The Subordinate Judge, however, was wholly unjustified in assuming that the provisions of the Transfer of Property Act were not in the minds of the Benches of this court which decided Chami v. Anu Pattar (1916) 1 M.W.N. 160 and Parameswara Ayyan v. Kittunni Valia Mannadiar (1917) 38 M.L.J. 591 and in awarding mesne profits to plaintiff after the date of the tender made in court by the respondent under Section 83 of Act IV of 1882. Mr. Justice Seshagiri Aiyar does refer to Section 83 of that Act in his judgment in the former case. Section 76(i) refers to Section 83 by using the words ' in manner hereinafter provided ' and the language of the two sections (one speaking of ' the amount for the time being due on the mortgage' and the other ' the amount remaining due on the mortgage ') is very similar when referring to the mortgagee's right to be paid his money before redemption.
3. Mr. Justice Seshagiri Aiyar clearly says in Chami v. Anu Pattar that he agreed with the appellant's Vakil in that case ' that the value of improvements connot be brought under the expression (1916) 1 M.W.N. 160 amount due on the'mortgage' in Section 83 of the Transfer of Property Act.' It follows that Section 76 Clause (i) also has no application to the money due for improvements to a Malabar mortgagee.
4. Nothing that has been advanced by the respondent's learned vakil in the arguments in this case has tended to throw any doubt on the opinion I expressed in Parameswara Ayyan v. Kittunni Valia Mannadiar (1917) 38 M.L.J. 591 that the mortgagee in Malabar has a right to remain in possession till he is actually paid or till he is ejected by decree of Court and hence that he is not accountable for mesne profits till either of these events happens. The Legislature cannot have intended to make a mortgagee tenant liable for mesne profits on tender but not a lessee tenant which would be the result if the respondent's contention is accepted, Section 5 of the Malabar Compensation for Tenant's improvements Act making no difference between a mortgagee tenant and a tenant holding on a mere Verumpattam or on a mere Kuzhikanam right.
5. The lower courts decrees will therefore be modified by striking out of the first court's decree the words beginning with 'and future mesne profits' and ending with 'from this date'.
6. The parties will bear their respective costs in this second appeal.
7. I agree with the decision in Parameswara Ayyan v. Kittunni Valia Mannadiar (1916) 1 M.W.N. 160. The matter seems to me to be concluded by the language of Section 5 of the Malabar Compensation for Tenant's Improvements Act. That section seems to apply to all tenants except such as have been paid. If payment has been made and the term is determined or the mortgage has been discharged the section has no application. If the compensation is so due that is, has not been paid, then the section applies. The Legislature could have added the words 'or a proper sum tendered' but has not thought fit to do so, although in the same section it speaks of payment or tender of the mortgage money. We are asked to import Section 76 (1) of the Transfer of Property Act. I agree with Seshagiri Aiyar, J., in Chami v. Annu Pattar (1916) 1 M.W.N. 160 that this does not apply and I further think that if it was to be applied, it would introduce a special rule in cases of mortgages while another rule based on the Malabar Compensation for Tenant's Improvements Act remained for leases which constitute a number of cases in which compensation has to be paid. 1 am unable to follow Seshagiri Aiyar, J's reasoning at the end of his judgment in Chami v. Anu Pattar (1916) 1 M.W.N. 160 as I do not understand his reference to Clause 2 of Section 5 of the Malabar Compensation for Improvements Act. The Act may operate against the landlord in some cases but that can be dealt with in costs. It must also be borne in mind that according to the policy of the Act the Compensation is to be ascertained by the court; Vide Section 19 of the Act. If a tenant accepts payment he waives his right, but if he claims assessment by the court I can see nothing in the Act which deprives him of his statutory right under Section 5 of the Act even if the amount tendered is found to be sufficient.