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Chemmanghat Kunnath Melethil Ramankutty Vaidyar's wife Kunhumalu Vs. M.K. Gopalakrishna Iyer, the present executive trustee of Chokkanathapuram Sri Meenakshisundareswaraswami Devasthanam and Ors. (11.07.1951 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2565 of 1947
Judge
Reported inAIR1952Mad788; (1952)1MLJ831
ActsMalabar Compensation for Tenants' Improvements Act, 1900 - Sections 3(1), 5(1) and 5(2)
AppellantChemmanghat Kunnath Melethil Ramankutty Vaidyar's wife Kunhumalu
RespondentM.K. Gopalakrishna Iyer, the present executive trustee of Chokkanathapuram Sri Meenakshisundareswara
Appellant AdvocateK. Kuttikrishna Menon and ;K.N. Karunakaran, Advs.
Respondent AdvocateC.S. Swaminathan, ;M.K. Nambiar and ;M. Sekhara Menon, Advs.
Cases ReferredManager Sankunni Variar v. Kunji Nangayaramma
Excerpt:
.....of land is in possession thereof, or who, with the bona fide intention of attorning and paying the customary rent to the person entitled to cultivate or let waste land, but without the permission of such person, brings such land under cultivation and is in occupation thereof as cultivator. it includes also a person in possession of land in good faith believing himself to be a mortgagee. it will follow that a person in possession in good faith believing to be a mortgagee will be a statutory tenant under the provisions of the act and his rights and liabilities will have to be worked out as per the terms of the said provisions......the file of the district mun-sif's court, palghat, for possession of the suit properties and for mesne profits. the learned district munsif of palghat held that the mortgage deed was supported by consideration and that the mortgagee was a bpna fide creditor but that the mortgage was invalid as it was executed in contravention of the provisions of section 76 of the madras hindu religious endowments act. he further held that the defendant would be entitled to the cost of improvements under the malabar compensation for tenants' improvements act (i (1) of 1900) (hereinalter referred to as 'the act') but was liable to pay mesne profits. in appeal tne learned subordinate judge also accepted the said findings, though he made some slignt modifications in regard to the amount of mesne profits.....
Judgment:

Subba Rao, J.

1. The only question that arises in this second appeal is whether the first defendant-appellant is Jiable to pay mesne profits. The relevant facts may be briefly stated. The properties described in the schedule annexed to the plaint belong in 'jenm' to Sree Meenak-shisundareswara Swami Devaswom in Puttur Amsom, Palghat taluk. The temple was an ancient one and from its origin it was under the management of Naduvil Edam. The Edam had on various occasions in the past demised the properties on kanoms and also mortgaged them. On 25-3-1929 one Pangi Achan of the Edam executed a possessory mortgage to the first defendant in regard to the suit properties for Rs. 3000 under Ex P. 4. As the Devaswom was mismanaged, on 30-11-1935 the Madras Hindu Religious Endowments Board framed a scheme and the 1st plaintiff was appointed as executive officer. The second plaintiff is his successor. Defendants 2 to 4 are the members of Naduvil Edam.

The temple by its executive officer filed O. S. No. 231 of 1943 on the file of the District Mun-sif's court, Palghat, for possession of the suit properties and for mesne profits. The learned District Munsif of Palghat held that the mortgage deed was supported by consideration and that the mortgagee was a bpna fide creditor but that the mortgage was invalid as it was executed in contravention of the provisions of Section 76 of the Madras Hindu Religious Endowments Act. He further held that the defendant would be entitled to the cost of improvements under the Malabar Compensation for Tenants' Improvements Act (I (1) of 1900) (hereinalter referred to as 'the Act') but was liable to pay mesne profits. In appeal tne learned Subordinate Judge also accepted the said findings, though he made some slignt modifications in regard to the amount of mesne profits payaole by the first delendant to the plaintiff. The first defendant preferred the above second appeal.

2. The learned counsel for the appellant confined his arguments to tne sole question of mesne profits. He contended that his client would not be liable to mesne profits as he was a statutory tenant under the Act and therefore was not in wrongful possession of the suit lands. The answer to the question turns upon the 'consideration of the relevant provisions of the Act. Section 3(1) of tne Act defines a 'tenant'. It reads :

' 'tenant', with its grammatical variations and cognate expressions, includes a person who as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee or sub-mortgagee of land is in possession thereof, or who, with the bona fide intention of attorning and paying the customary rent to the person entitled to cultivate or let waste land, but without the permission of such person, brings such land under cultivation and is in occupation thereof as cultivator.'

3. Section 5(1) says:

'Every tenant shall on ejectment be entitled to compensation for improvements which have been made by him, his predecessor in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money (if any), be entitled to remain in possession until ejectment in execution of a decree or order of court.'

4. Section 5(2) runs:

'A tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or of the mortgage, as the case may be.'

Section 6 provides for delivery of possession to the plaintiff after the amount of compensation payable by the tenant is ascertained and after giving credit to amounts payable by the defendant to the plaintiff in respect of the tenancy.

5. From the aforesaid provisions, it is clear that for the purpose of the Act the word 'tenant' is given a very wide connotation so as to take in even a trespasser who cultivates a land in-tending to pay the customary rent. It includes also a person in possession of land in good faith believing himself to be a mortgagee. Under Section 5 such a tenant is entitled to be in possession until he is evicted in execution of the decree. Under Section 5(2) till he is evicted he will be subject to the terms of the lease or mortgage as the case may be. It will follow that a person in possession in good faith believing to be a mortgagee will be a statutory tenant under the provisions of the Act and his rights and liabilities will have to be worked out as per the terms of the said provisions. So under-stood, I find it very difficult to hold that such a person is in wrongful possession of the mortgage properties notwithstanding the fact that the mortgage deed was invalid. The Legislature designedly conferred certain rights on such a person and legalised his possession till he is duty evicted unuer Section 6(1) of the Act.

Sadasiva Aiyar J. had occasion to consider the scope of Section 5 and Section 6 of the Malaoar Tenancy Act in 'Paraineswara v. Valia Manna-diar', AIR 1918 Mad 381. There a suit was nied for ejectment and tne question was whether tne mortgagee was bound to pay mesne profits from tne date of tne tender of tne amount due under tne mortgage into court when it was found that tne money tendered sufficiently covered the compensation for improvements also. The learned Judge held that till compensation was actually paid the mortgagee remained in possession as mortgagee despite the valid tender. The same learned Judge sitting with Napier J. said in 'Manager Sankunni Variar v. Kunji Nangayaramma', 10 Mad L W 301 that

'the mortgagee in Malabar has a right to remain in possession till he is actually paid or till he is ejected by a decree of court and hence he is not accountable for mesne profits till either of these events happens.'

Mr. Swaminathan appearing for the respondents d.d not question tne correctness of the decisions, but contended that those cases related to valid mortgages and therefore the principle accepted therein could not be applied to a mortgage which was held to be invalid. In support of his argument he relied on the provisions of Section 5(2) of the Act and argued that that subsection applied only to valid mortgages and as in the present case the mortgage was invalid the liability of the tenant would be governed by general law.

I do not see any difficulty in reconciling the provisions of Section 5(2) with the other sections of the Act. If the definition of a tenant is wide enough to take in a person holding under an inval.d mortgage in the circumstances mentioned in the definition and if such a person is entitled to be in possession till he is evicted in execution of a decree, there is no reason why the word 'moitgage' in Section 5(2) cannot be understood to comprehend an invalid mortgage under which such a person continued to be in possession. For the purpose of applying the 'provisions of the Act without giving undue advantage to the mortgagee at the expense of the mortgagor, such a person's tenure is made subject to the terms of the mortgage deed during the period of his statutory tenancy.

I cannot also distinguish the aforesaid Bench decisions in the manner suggested by the learned counsel for the respondents, as, even in these cases the mortgagee would not under general law be entitled to be in possession it the entire amount due to him was legally tendered. I therefore hold that the first defendant is not liable to pay mesne profits. In the result the decree of the lower court is modified and the parties are directed to pay and receive proportionate costs in the courts below. Here the parties will bear thoir own costs.

6. Leave granted.


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