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Vasteva Holla and anr. Vs. P. Mahabala Rao - Court Judgment

LegalCrystal Citation
Subjectproperty
CourtChennai
Decided On
Reported inAIR1926Mad405
AppellantVasteva Holla and anr.
RespondentP. Mahabala Rao
Cases ReferredAbid Husain Khan v. Kaniz Fatima A.I.R.
Excerpt:
- - in the second case, the amount of rent which was receivable by the mortgagee was directed to pay the assessment fixed at a certain definite amount to the mortgagor and enjoy the balance as interest......point relates to improvements on kurnaki land which have been disallowed by the lower courts. the kumaki land is not included in the property mortgaged, but is land over which the adjacent wargdar has certain rights in the way of taking leaves, etc. improvement to this kumaki land is, therefore, not necessarily improvement to the mortgaged property ; for it is quite possible that the mortgagor will never get possession of the kumaki land and its improvements. it has not been suggested that the improvements made on the kumaki have themselves enhanced the value of the mortgaged property, and, therefore, that question need not be considered. it is next argued that the commissioner in determining the amount of compensation payable for improvements has adopted the rate of wages applicable at.....
Judgment:

Phillips, J.

1. In this appeal against a redemption decree, the defendants, mortgagees, raise three points for consideration. The first point urged is that the mortgagees are entitled to set-off the enhanced assessment which has been paid by them and add it to the mortgage amount. Under the Transfer of Property Act, the mortgagee is bound to pay enhanced assessment unless there is a contract to the contrary, and if this principle is to be applied, although this particular mortgage was executed before the Transfer of Property Act was passed, I think that the mortgagees would be bound to pay the enhanced assessment themselves, because I can read no contract to the contrary in the document. There is a provision that the mortgagees shall pay assessment and that they should get the revenue registry in their own names, in virtue of which they would themselves be called upon to pay the assessment leviable at any particular time. Two cases were relied on by the appellants Subbarow v. Venkata Narasimhan [1904] 27 Mad. 368 and Panigatan Kanaran v. Raman Nair [1907] 17 M.L.J. 517. In the first of these cases no facts are given in the report and it is very difficult to say what in that particular case was the contract to the contrary ; for we do not know what the contract contained. In the second case, the amount of rent which was receivable by the mortgagee was directed to pay the assessment fixed at a certain definite amount to the mortgagor and enjoy the balance as interest. These terms do not appear in the suit contract. In fact, so far from the suit contract containing a contract to the contrary within the meaning of Section 76, it seem3 to me that it almost amounts to a specific contract to pay the assessment, whatever it was ; at any rate, I am not prepared to say that the lower Courts are wrong in finding that there was no contract to the contrary. Even if the Transfer of Property Act does not apply, it has been held in a recent case decided by the Privy Council in Abid Husain Khan v. Kaniz Fatima A.I.R. 1924 P.C. 102 that a mortgagee is bound to pay enhanced assessment in the absence of a provision to the contrary in the deed, on the ground that it is his duty to manage the property with ordinary prudence. On this ground also, the decree must be confirmed in this respect.

2. The second point relates to improvements on kurnaki land which have been disallowed by the lower Courts. The kumaki land is not included in the property mortgaged, but is land over which the adjacent wargdar has certain rights in the way of taking leaves, etc. Improvement to this kumaki land is, therefore, not necessarily improvement to the mortgaged property ; for it is quite possible that the mortgagor will never get possession of the kumaki land and its improvements. It has not been suggested that the improvements made on the kumaki have themselves enhanced the value of the mortgaged property, and, therefore, that question need not be considered. It is next argued that the commissioner in determining the amount of compensation payable for improvements has adopted the rate of wages applicable at the date the improvements were made, and reliance is placed on one sentence in his report. Whether this is so or not is not quite clear, but the deduction made by him from the present day rates may be due to the fact that the improvements have deteriorated since they were made. The point was not raised in either of the lower Courts and there is no material here for its determination. The objection must be disallowed.

3. The last objection relates to the costs in the trial Court. Ordinarily a mortgagee would be entitled to his costs but this is subject to the discretion of the Court where he raises questions which involve a denial of the mortgagor's right to redeem. Here there was a denial that a portion of the property was mortgaged ; there was also an excessive claim for improvements and also a claim for enhanced revenue. In these circumstances I cannot say that the lower Court has wrongly exercised its discretion.

3. In the result, the second appeal fails and is dismissed with costs.


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