1. Appellants in App. No. 684 of 1963 are defendants 40 to 45 in O. S. 64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram. appellant in App. No. 693 of 1963 is the 24th defendant in the same suit. These appeals have been preferred against the final decree and order in I. A. 134 of 1963 in O. S. No. 64 of 1954, on the file of the Subordinate Judge's Court, Padmanabhapuram.
2. The only contention urged by the appellants in App. No. 684 of 1963 is that the suit is barred by res judicata in respect of the claim made against them. The plaintiffs in O. S. 64 of 1954, on the file of the lower court, filed the suit for declaration of their title to the suit properties and for recovery of possession of the same after setting aside certain alienations. The appellants in App. No. 684 of 1963 on the file of the lower court are interested only in plaint items 53 to
57. These items of properties belonged to one Chemmanthitta Tarwad and the members of that Tarwad mortgaged these properties to the father of the 40th defendant under the original of Ex. XVII dated 29-9-1059, M. E. The father of the 41st defendant and the father of the defendants 42 to 45 were the brothers of the 40th defendant. The trial court upheld the plea of defendants 40 to 45 that the suit against them was barred by limitation. But on appeal preferred by the plaintiffs to this court, it was held that the sub-mortgage Ex. F executed by the mortgagee under Ex. XVIII saved the plaintiffs' claim from the bar of limitation. In fact, the 40th defendant examined as D. W. 8 in the suit, gave evidence that his father executed the sub-mortgage G. F. with regard to some of the properties covered by the mortgage Ex. XVIII and this court relied on the said evidence. This court passed a preliminary decree for redemption of plaint Items 53 to 57 covered by Ex. XVIII, but made it subject to the other defences that might be put forward by defendants 40 to 45.
3. plea of res judicata is based on the following facts. The third defendant Ulakan Pillai filed O. S. No. 454 of 1123 M. E. on the file of the District Munsif Court, Padmanabhapuram, against defendants 40 to 45 in this suit for redemption of the mortgage in respect of the present suit Items 53 to 57. But he was unsuccessful both in the trial court, as well as in his appeal A. S. No. 656 of 1951 on the file of the Sub-Court, Padmanabhapuram. Ulakan Pillai died during the pendency of the appeal A. S. No. 656 of 1951, on the file of the Subordinate Judge's Court of Padmanabhapuram and the present plaintiffs were brought on record as his legal representatives. Though the present plaintiffs preferred a second appeal to this Court, they withdrew the same. The lower court has held that the title of the plaintiffs in the present suit is not based on the title of Ulakan Pillai, who filed the suit O. S. No. 454 of 1123 M. E. on the file of the District Munsif's Court, Padmanabhapuram, and hence the decision in A. S. No. 656 of 1951 on the file of the sub-Court Padmanabhapuram, cannot operate as res judicata.
4. It is clear from the decision is A. S. 656 of 1951 on the file of the subordinate Judge's Court Padmanabhapuram, that the Subordinate Judge agreed with the trial court that the third defendant Ulakan Pillai did not prove his title to the properties mortgaged to Arulanandam, the father of the 40th defendant and the grandfather of defendant 41 to 45 in the present suit. It proceeded also to rely on the dismissal of O. S. 64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram. But the dismissal was on the ground of limitation, which was, however, set aside by this court. It should be noted that the plaintiffs in O. S. 64 of 1954 on the file of the Subordinate Judge's Court Padmanabhapuram, did not claim title to the suit properties from Ulakan Pillai, father of the first plaintiff and grandfather of plaintiff 2 and 3. Madhavan Pillai, the brother of Ulakan Pillai, got title to the suit items 12 to 92 under the sale deed dated 7-7-1103 M. E. executed in his favour by Kesavan Thampi. Ex. G is a copy of the sale deed. Madhavan Pillai executed a will Ex. C on 30-12-1102 M. E. bequeathing the said plaint items to the Tarwad of the plaintiffs and the first defendant. The sale deed Ex. G and the will Ex. C. were upheld by the trial court and this court. Thus the claim made by the plaintiffs in O. S. 64 of 1954 on the file of the Subordinate Judge's court Padmanabhapuram was based on a different title from the one on which Ulakan Pillai filed the suit O. S. 454 of 1123 M.E. on the file of the District Munsif's Court, Padmanabhapuram, and the appeal therefrom. A. S. 656 of 1951 on the file of the Subordinate Judge's Court, Padmanabhapuram.
In fact, the third defendant Ulakan Pillai pleaded in his suit that the items mortgaged to the father of the present 40th defendant devolved on him and that he obtained the patta and thandapar stood in his name, but he failed to prove the same. The learned Subordinate judge has rightly found that the decision in A.S. 656 of 1951 on the file of the Subordinate Judge's Court Padmanabhapuram cannot operate as res judicata in the present suit based on a different title.
5. The learned advocate for the appellants in App. 684 of 1963 urged that the present plaintiffs were impleaded as the legal representatives of Ulakan Pillai in A. S. 656 of 1951 on the file of the Subordinate Judge's Court, Padmanabhapuram, but that they subsequently withdrew the second appeal preferred to this court. Evidently, they withdrew the second appeal in view of their succeeding in their claim in the present suit. It should be noted that in A.S. 656 of 1951 on the file of the Subordinate Judge's court, Padmanabhapuram, the present plaintiffs put forward their claim only as the legal representatives of Ulakan Pillai and ultimately withdrew the claim in the said appeal. This cannot affect their rights under Ex. G. and Ex. C on which they based their claim in O.S. 64 of 1964 on the file of the subordinate Judge's Court, Padmanabhapuram.
6. For the foregoing reasons the final decree and order on I. A. 135 of 1963 in O. S. 64 of 1954 on the file of the Subordinate Judge's Court Padmanabhapuram, are confirmed so far as defendants 40 to 45 are concerned and appeal No,. 684 of 1963 is dismissed with costs.
7. The only contention urged by the learned counsel for the appellant (24th defendant) in App. No. 693 of 1963 on the file of this court is that the lower court erred in disallowing the improvements claimed by him under the Travancore-Cochin Compensation for Tenants Improvements Act, 1956 (Act X of 1956). The 24th defendant claims to have purchased items 13 to 32 and 90 from the third defendant on 16-1-1121 M.E. and in pursuance of the direction in the sale deed redeemed a prior mortgage. He claimed that the suit O.S. 64 of 1954 on the file of the Subordinate Judge's Court, Padmanabhapuram was barred by limitation and that in any event he was entitled to the amount paid by him to discharge the mortgage on the properties and the value of the improvements worth Rupees 20,000. The trial court found that the plaintiffs got title to the plaint items 13 to 32 and 90 in view of the sale deed Ex. G. in favour of Madhavan Pillai and the will Ex. C executed by Madhavan Pillai in favour of their tarwad. It found that Ulakan Pillai who was brother of Madhavan Pillai and the father of the plaintiff, had no title to the said properties. If found that the plaintiffs got two-third share in the said items, but gave an equitable relief to the 24th defendant on the ground that he was entitled to 21000 fanams or Rs. 3000 paid by him to discharge the mortgage on the properties purchased by him.
As regards the claim for improvements, the trial court has dealt with it in paragraphs 145 and 146 of its judgment and allowed the improvements claimed by the sixtieth defendant only. As regards the other defendants, including the 24th defendant, the trial court pointed out that the plaintiffs denied that they effected any improvements. The learned Subordinate Judge did not believe the interested testimony of these defendants as there was no evidence let in by them to substantiate their claim. He has pointed out that they did not care to take out commissions to ascertain the value of improvements in spite of the opportunity granted to them for that purpose. In fact he found that the defendants, other than the 60th defendant, were not entitled to claim any amount as compensation for the improvements alleged to have been effected by them. It should be noted that the 24th defendant did not prefer an appeal.
8. The 24th defendant preferred E.A. 144 of 1961 in O.S. 64 of 1954 for appointment of a Commissioner to assess the improvements under Travancore-Cochin Compensation for Tenants Improvements Act, Act X of 1956. The learned Subordinate Judge, Padmanabhapuram, held that the 24th defendant was entitled to the value of improvements only from the date of the decree till the date of eviction and assessed the same at Rs. 317.67. The plaintiffs filed E.P. 91 of 1961 to execute the decree against the 24th defendant. But it was dismissed on the ground that the final decree had not been passed. It is true there is a preliminary decree for partition between the plaintiffs and the second defendant even as regards the properties claimed by the 24th defendant. But so far as the 24th defendant is concerned, he should deliver possession of the properties on payment of Rs. 3000. The learned advocate for the plaintiffs relied on the decision in Gnanambal Ammal v. Ayyasami, (1955) 68 Mad LW 383, Mack J., has held in that decision that there may be clauses in all preliminary decrees, which are immediately executable though the decree is called preliminary, because it is not a final determination of all rights as between the parties. He upheld the order directing delivery of possession as legal, though the final decree had not yet been passed. The decision appears to have been passed on the peculiar facts of that case.
In the preliminary decree in that suit for redemption of mortgage, the sum payable by the plaintiff to the mortgagee was finally determined and it was specifically provided that the plaintiff should deliver possession on the money was actually deposited into court. It was held in that case that the delivery of possession effected was not illegal though the final decree had not yet been passed and that there was not justification for ordering redelivery of the property. The complaint of the mortgage in that case was that he had raised crops and Mack J. directed an enquiry into the value of the standing crops and the payment of the same to the mortgage. It is not possible to rely on the decision as authorising a person who has obtained only a preliminary decree in a mortgage or partition suit to every execution without obtaining a final decree. But as contemplated in Section 2(2), C. P. Code, a decree may be either preliminary or final and there are decisions to the effect that a decree may be partly preliminary and partly final. A decree which is partly final is no doubt capable of execution. So far as the claim against the 24th defendant is concerned. it is a claim for possession of the suit properties on the basis of the title of the plaintiffs-decree-holders to items 32 and 90, subject to the payment of the mortgage amount of Rs. 3000.
9. The learned Subordinate Judge negatived the claim of the 24th defendant for improvements except for the period subsequent to the decree, which has been assessed at Rs. 317.67. The learned advocate for the appellant (24th defendant) questions the correctness of this decision. According to him, the appellant is entitled to claim compensation for improvements under Section 4 of the Travancore-Cochin Compensation for Tenants Improvements Act, X of 1956, hereinafter referred to as the Act. The said Act came into force on 31-10-1956, when it was published in the gazette. The decree against the 24th defendant was made in the suit on 15-11-1955 negativing his claim for improvements. In P. Karthiyani v. P. Panicker, it has been held that the appellate court is bound to decide the question of value of improvements in the light of the above Act X of 1956, if the appeal from the decree is pending on the date of the Act. It is pointed out in the decision that 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. In this view, the suit was remanded to the trial court. The basis of the decision is that the finding on the question of improvements could not be said to have become final when the appellant claims in appeal a higher amount as compensation for improvements.
But it should be noted that there was no appeal by the 24th defendant against the decree and judgment finding that he was not entitled to any claim for improvements. Strictly speaking, the decree against the 24th defendant could not be said to be a preliminary decree. But even taking it as a preliminary decree, the rights declared under it have become final in the absence of an appeal by the 24th defendant. In Venkata Reddi v. Pethi Reddi, , the Supreme Court has
reiterated the principle that a preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree, but must, in so far as the matters dealt with by it are concerned by regarded as conclusive. It is pointed out in the decision does not necessarily depend upon its being executable.
10. The scope of Sections 4 and 5 of the Act have been considered in several decisions of the Kerala High Court. In R. Gangadharan v. K. Lakshmanan, , it has been held that a reading of
sub-section (1) of Section 5 of the Act makes it clear that its operation is intended "to be prospective and that doubts if any will be completely dispelled by the clause and shall pass a decree declaring the amount so found due." It is pointed out in the decision that the sub-section does not contemplate the reopening of a decree which is final and conclusive and that such a decree can be reopened only be methods sanctioned by law and so far as a decree awarding compensation is concerned, sub-section 3 of Section 5 enacts when that can be done. It is, however, pointed out in the decision that, in order to bring the case under sub-section 3 of Section 5 of the Act, it must be shown that the condition of the improvements already valued before the decree had changed so as to call for a revaluation. But in the present case it has been found that the 24th defendant has not effected any improvements and that he was not entitled to any amount for the alleged improvements. There is therefore no scope for invoking the Section 5(3) of the Act to vary the decree in accordance with the provisions of the Act.
11. Narayanam Nair v. Kamalakshi Amma,. 1963 Ker LT 1091 is a decision directly in point. It has been held in that decision that the decree may be varied under Section 5(3) of the Act and a revaluation made if the conditions required by that sub-section are satisfied. The very first condition is that compensation must have been adjudged in the decree, or else there would be no date in relation to which any improvements can be said to be subsequent so as to entitle him to a revaluation on account of any change in condition. It has been observed in the decision by the decree, it would be a case where no compensation has been adjudged by the decree and that the legislature obviously thought that a person who had been found by the decree to be disentitled to compensation for improvements should be precluded from claiming compensation in execution, with the result that Sec. 5(3) of the Act does not come into play at all.
12. The learned advocate for the respondents-plaintiffs urged that even under the customary law prevailing in Kerala the mortgagee is entitled to claim the value of improvements and that no attempt had been made by the appellant (24th defendant) to show what category of improvements he claims under the Act which he could not have claimed under the customary law. He relied on the Full Bench decision in Chandi Avira v. T. Varkey, AIR 1951 Trav. Co. 109 (FB), where it has been held that according to the custom prevalent in Malabar, Cochin and Travancore, the right of possessory mortgagees to get value of improvements effected by them, independent of any agreement in that behalf but in the absence of an agreement to the contrary has been recognised. In Nani Kunjukrishan v. P. Pillai, , it is pointed out
that until the Act was passed on 31-10-1956, there was no statute law in Travancore governing the award of such compensation, but according to judicial decisions, the practice was to capitalise the income for 8-1/3 years in the case of coconut trees, jack trees etc. to deduct one fourth of the same for tax and maintenance and another one-fourth as the share of the owner of the land and to award the balance to the mortgagee or tenant as value of improvements. The learned advocate for the plaintiffs commented on the fact that the 24th defendant had not pleaded or proved what improvements he has made for which he could not claim compensation under the customary law, but only under the Act. It is really unnecessary to stress this aspect of the case in view of the scope of Section 5(3) of the Act as to amendment of decrees already passed in a suit.
13. Under Section 5(4) of the Act, every matter arising under sub-s. (3) shall be deemed to be a question relating to execution of a decree within the meaning of sub-section (1) of Section 47, C. P. Code. it is in this view the 24th defendant filed E. A. 144 of 1961 in O. S. 64 of 1954 on the file of the lower court. We have already pointed out that the decree, so far as it is against the 24th defendant, is an executable decree, though the lower court a wrong view about it. The learned Subordinate Judge was therefore justified in finding that the order in the suit will preclude the 24th defendant from reagitating the question.
14. Further, in order to invoke, the benefits of the Travancore-Cochin Compensation for Tenants Improvements Act 1956, the appellant (24th defendant) should establish that he is a tenant within the meaning of S. 2(d) of the Act. In Paily v. Augusthy, AIR 1967 Ker 247 (FB), it has been held that although for the sake of convenience clause (a) of Section 2 uses the word 'tenant' to mean a person in possession after his tenancy is determined (a quondam tenant), a tenant as defined by clause (d) is a person in possession as a tenant whether the tenancy be a true tenancy or lease or a mortgage tenancy, or what might be described as a constructive or quasi-contractual tenancy which are also tenancies within the definition, but it does not take in a quondam tenant. Having regard to the pleadings in this case and the findings in the suit, it could not be said that the 24th defendant has established that he is a tenant within the meaning of Section 2(d) of the Act. The 24th defendant claims to have purchased items 13 to 31 and 90 from the 3rd defendant who had no title to the said items. It is on the basis of that invalid purchase, he claims to have discharged the mortgage Ex. LXXXI dated 25-9-1079 M. E. for 21000 fanama. He was given an equitable relief by way of charge on the said properties to secure the payment of the said sum of 21000 fanams or Rs. 3000 by the plaintiffs.
On these facts, it is not possible for the 24th defendant to contend that he is a tenant within the meaning of the definition of the term in Section 2(d) of the Act. It could not be said that he is a mortgagee or a person subrogated to the rights of the mortgagee merely because he discharged a mortgage on the items claimed by him. He is not one of the persons who could claim subrogation under Section 92 of the Transfer of property Act. The mortgagee under Ex. LXXXI has not assigned his rights under the mortgage to him. Subrogation by operation of law or legal subrogation rests on the same equity of reimbursements as is enacted in Section 69 of the Contract Act, that a person who is interested in the payment of money, which another is bound by law to pay and who therefore pays it, is entitled to be reimbursed by the other. Even in the case of subrogation there must be an obligation express or implied to repay and the principle of subrogation can never be applied in aid of a mere volunteer. At page 580 of Mullah's Transfer of Property Act 5th Edn. it is pointed out that any one, who is under no legal obligation or liability to pay the debt, is a stranger, and, if he pays the debt, he is a mere volunteer.
The learned author has pointed out that this principle was followed in an Allahabad case Shamlal v. Rampiari, (1910) ILR 32 All 25, where the plaintiff purchased property from a minor and discharged a prior mortgage and the plaintiff was treated as a volunteer as the minor's sale was invalid. It was held that he was neither subrogated to the rights of the mortgagee, nor held entitled to reimbursement. Thus if the 24th defendant cannot claim to be subrogated to the rights of the mortgagee, we fail to see how he can claim to be a tenant within the meaning of Section 2(d) of the Act. But the lower court did not base its decision on this ground. In fact, it allowed him compensation of Rs. 3000 paid by him. there is no appeal against that part of the judgment by the plaintiffs.
15. In view of our decision as to the scope of Section 5 of the Act, the appeal by the 24th defendant also has to fail. The decree and order of the lower court are confirmed and App. No,. 693 of 1963 is also dismissed with costs.
16. Appeal dismissed.