BOMMA NAICKER Vs. MARIAYAYYE AMMAL AND ORS.

JUDGEMENT

(1.) The appellant herein was the second plaintiff in O.S. No. 525 of 1957 on the file of the Court of the District Munsif of Kulitalai and the second respondent in I.A. No. 114 of 1963 therein. The suit itself was one for redemption of the mortgage instituted by the first plaintiff, who is dead, on the basis of a document dated 4th August, 1930, executed by the first plaintiff's predecessors-in-interest in favour of the respondents' predecessor-in-interest. That document was in the form of an absolute sale with a condition that the vendee should recovery the property, whenever the vendor paid the consideration. In the suit for redemption that document was construed as a mortgage by conditional sale and the suit for redemption was decreed. The conclusion that the transaction constituted a mortgage by conditional sale was confirmed by the first appellate Court and by this Court in Mariyayi Ammal and 4 Ors. v. Family Manager, Rengappa Maicker S.A. No. 405 of 1960, disposed of by Anantanarayanan, J., as he then was, on 25th April, 1962. In the second appeal, a further question arose as to the right to recover the value of the improvement said to have been effected in the form of digging a well in the property by the predecessors-in-interest of the respondents herein. With regard to the value of the said improvement as well the liability to pay the same by the present appellant, the matter was remanded. This is what this Court stated on that occasion:

(2.) The contention of the learned Counsel for the appellant is that Section 51 of the Act has no application to the case of mortgage, since it is Section 63-A of the Act that is exclusively applicable and also on the facts and circumstances of this case, Section 51 of the Act cannot be applied. The learned Counsel for the respondents counters this contention. Therefore, the question for consideration is whether the view of the learned District Judge is correct.

(3.) For the purpose of considering this question, it is desirable to refer to the statutory provisions themselves. In the first place, Section 51 of the Act is as follows: