BHAGAVATHI KOCHUPARVATHY Vs. BALAKRISHNA PILLAI CHANDRASEKHARAN PILLAI
LAWS(KER)-1963-7-12
HIGH COURT OF KERALA
Decided on July 05,1963

BHAGAVATHI KOCHUPARVATHY Appellant
VERSUS
BALAKRISHNA PILLAI CHANDRASEKHARAN PILLAI Respondents


Referred Judgements :-

KUNJUKRISHNAN V. KRISHNA PILLAI [REFERRED TO]
SULAIKHA UMMAL VS. SUMATHI [REFERRED TO]



Cited Judgements :-

DAYANANDAN VS. PARAMESWARA PANICKER [LAWS(KER)-1963-12-9] [REFERRED TO]
THOMAS VS. E JOHN [LAWS(KER)-1965-6-29] [REFERRED TO]


JUDGEMENT

- (1.)This Second Appeal which arises from an order in execution comes before us on a reference by Velu Pillai, J.
(2.)The suit was one for redemption of a mortgage. The Trial Court in passing a decree for redemption directed that compensation for improvements should be determined by the execution court.
(3.)On 3rd April 1958, the second defendant in the suit applied for determining compensation for improvements. Before the Commissioner who was deputed to do the work inspected the property, the Kerala Compensation for Tenants Improvements Act, 29 of 1958, came into force on 24th May 1958. The Commissioner filed his report and the execution court passed an order on 8th November 1958 fixing the value of improvements. The second defendant appealed to the District Court but the appeal was dismissed on 23rd December, 1958. This Second Appeal was filed by him on 22nd June 1959. The only point pressed before Velu Pillai, J , was that compensation for coconut trees was to be assessed on the basis of the tables published by the Government under S.13 of Act 29 of 1958. Velu Pillai, J., was of the opinion that the tables having been published long after the execution court decided the question, valuation of improvements on the basis of the tables could not be resorted to and that the tables would apply only to those cases where such determination was made after the publication of the tables. As a contrary view was taken by Raghavan, J., in Suleikha Ummal v. Sumathy ( 1962 KLT 822 ), the Second Appeal was referred to a Division Bench.
S.5(1) of Act 29 of 1958 provides:

"In a suit for eviction instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation due under S.4 for improvements, the court shall ascertain as provided in S.7 to 16, the amount of the compensation and shall pass a decree declaring the amount so found due and ordering that on payment by the plaintiff into the court of the amount so found due and also the mortgage money or the premium, as the case may be, the defendant shall put the plaintiff into possession of the land with the improvements thereon."

The tables are published under S.13 of the Act which is as follows:

"13. (1) For the purpose of determining the amount of compensation to be awarded under this Act, the Government may prepare tables for the whole or any part of the State showing all or any of the following matters:

(a) the price of coconuts, arecanuts, pepper and paddy;

(b) the cost of

(i) cultivating and harvesting a crop of paddy;

(ii) planting, protecting and maintaining a coconut tree, an arecanut tree, a jack tree, a mango tree, such other tree as may be notified by the Government from time to time and a pepper vine, until the tree or vine is in bearing;

(iii) protecting and maintaining a coconut tree, an arecanut tree, a jack tree, a mango tree, such other tree as may be notified by the Government from time to time and a pepper vine for one year when in bearing."

Though the Act came into force in 1958 the tables were published only on 25th April 1961 during the pendency of this Second Appeal. The view expressed by Velu Pillai, J., in the order of reference is mainly based on S.14 of the Act which reads as follows:

"14. In respect of any produce for which no table showing the price has been published and whenever the presumption under S.13 is rebutted, the court shall adopt, as the money value for the purpose of awarding compensation under sub-s.(1) of S.7, the average price, as nearly as may be ascertainable in the taluk where the land is situated, for a period of 10 years immediately preceding the institution of the suit."

According to the learned Judge, S.14 applies to cases where the value of improvements was determined by the court of first instance before the publication of the tables and that the later publication of the same need not be taken note of by the appellate court.

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