Decided on December 10,1952



Chandra Reddi, J. - (1.) This second appeal has been placed before a Bench at the instance of Satyanarayana Rao J. who thought that it should be heard by a Bench as the correctness of the statement of law relating to improvements Dy a mortgagee in possession under anomalous mortgage in -- 'Pandiyan Pillai v. Vellayappa Rowther', AIR 1918 Mad 572 (A), was canvassed before him. The facts giving rise to this question may be briefly set out. The plaintiff created a mortgage over the suit properties on 20-11-1930, to secure a sum of Rs. 3400 under Ex. D-1. The mortgagee was put in possession of the property on the understanding that he should enjoy the income of the property in lieu of interest for a period of two years. Under the terms of Ex. D-1, the mortgagor could redeem the mortgage within a period of two years. In default thereof it was stipulated that the mortgagee could hold and enjoy all the properties with powers of alienation such as gifts, sale, etc. The mortgagor failed to pay the principal amount within the period of two years and take possession of the property as provided for in the document. Consequently the mortgagee continued to be in possession of the property and treated himself as the owner thereof. The mortgagor filed a suit on 14-10-4945 for the redemption of the mortgage and deposited the principal amount into Court.
(2.) The main defence to the suit was that the defendant being under a 'bona fide' belief that he became the owner of the property by virtue of the failure of the mortgagor to redeem the mortgage within the period of two years as stipulated in Ex. D-l effected improvements to the property and the plaintiff was not entitled to redeem the mortgage without paying the improvements also. The trial Court decreed the suit for redemption of the mortgage holding that the defendant was entitled to the principal amount and not to the improvements as this case did not fall within Section 63-A, T. P. Act.
(3.) On appeal the District Judge considered that although the case was not covered by Section 63-A, T. P. Act, still the mortgagee could get that relief by invoking Section 51, T. P. Act in his favour in view of the terms of the mortgage and the belief induced in the mortgagee that he had become the owner of the properly by the omission of the mortgagor to redeem the mortgage within two years. In that view he called for a finding as to the value of the improvements from the trial Court. On the finding that the improvements could be estimated at Rs. 1,000. the lower appellate Court modified, the decree of the trial Court by granting the mortgagee the relief for improvements.;

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