Decided on September 17,2003

SARADA BAI Appellant


R. Bhaskaran, J. - (1.) WHEN this second appeal came up for admission, I heard the learned counsel for the appellant as well as the learned counsel appearing for the 1 st respondent, who took notice in the appeal. This second appeal is filed by the 1st defendant in a suit for redemption of mortgage. The case of the plaintiff is that he executed a mortgage in respect of the plaint schedule property for Rs. 3,000/- in favour of one Thankappan Aasari in 1965. The defendants took assignment of the mortgage right in 1969. Thereafter, the plaintiff executed a purakkadam for Rs. 500/- from the defendants and extended the period for mortgage for one year. Subsequently, another loan of Rs. 3,000/-was also taken by the plaintiff from the 1st defendant by executing purakkadam deed No. 1907 of 1972 and when the plaintiff requested for redemption of mortgage, the defendants did not comply with the request and therefore the suit was filed.
(2.) THE 1st defendant in the written statement contended that the plaintiff had agreed to sell the property to the defendant for a value of Rs. 5,000/- per cent for the land and Rs. 10,0007- for the building. THE defendant had effected improvements to the building by spending Rs. 15,000/ -. It is also contended that necessary steps will be taken for getting specific performance of the contract of sale. THE defendant is also entitled to kudikidappu right in the plaint schedule property. The trial court referred the question of kudikidappu to the Land Tribunal. The Land Tribunal entered a finding that the 1 st defendant is not entitled to kudikidappu right since no evidence was adduced in that respect by the 1st defendant. The trial court accepted the finding of the land Tribunal. Thereafter, the trial court also considered the question whether the defendant had effected any improvement. The trial court found that the defendants are not entitled for claiming value of improvements as the improvements effected to a building will not come under the provisions of the Compensation for Tenants Improvements Act (Kerala ). Therefore, the trial court decreed the suit directing the plaintiff to deposit the mortgage money of Rs. 6,500/- within three months and apply for passing a final decree. When the matter reached the appellate court, the appellate court observed that at the time of argument the learned counsel for the appellant limited his argument with respect to value of improvements only, though in the appeal memorandum there is challenge to the finding of the Land Tribunal with regard to kudikidappu right. The appellate court found that the defendants have effected improvements as assessed by the Commissioner and they are entitled to get an amount of Rs. 15,690/ -.
(3.) IN this second appeal, the learned counsel for the appellant strenuously argued that the appellate court should have considered the claim of kudikidappu also. It is also contended that the appellate court has not granted interest on the value of improvements and therefore the judgment and decree of the lower appellate court have to be set aside. The learned counsel for the respondent on the other hand submitted that when the counsel for the appellant had limited his arguments in the lower appellate court on the question of value of improvements only and the same is recorded by the appellate court, the appellant cannot be heard on any other point raised in the Memorandum of Appeal. He relied on the decision of the Supreme Court in bhavnagar University v. Palitana Sugar Mill (P) Ltd. ( (2003) 2 SCC 111) and also the decision of the Supreme Court in Daman Singh v. State of Punjab (AIR 1985 sc 973 ). IN both the decisions, it is " stated that the remedy of the appellant in such cases will only be to file proper application before the court before which the concession was made and the correctness of the matter recorded by the court cannot be considered in appeal. It is also pointed out by the learned counsel for the respondent that the appellant had confined the arguments on the question of value of improvements. It is pointed out that the case of the appellant was one of agreement for sale and the defendant made advances to the plaintiff on various occasions. It is also pointed out that what was mortgaged was a terraced building with water and electricity connection. Even the value assessed by the defendant for the purpose of alleged agreement for sale of the building is Rs. 10,000/-whereas the cost of construction of the building for a kudikidappu should not exceed Rs. 750/ -. It is no doubt true that it is not for this Court to consider the question whether the building is a but or not and the competent authority is the Land Tribunal. The 1st defendant did not take part in the proceedings before the Land Tribunal and the Land Tribunal was helpless to render a finding in the absence of any evidence on the side of the 1 st defendant. According to the learned counsel, the value of the building should have been got ascertained to find whether the building qualifies the definition of a hut. That argument is without any merit. The definition of kudikidappukaran under S. 2 (25) of the Kerala Land Reforms Act contains two parts. The first is the person claiming kudikidappu should not have any land in excess of three cents in Corporation/ Municipality area or 10 cents in a Panchayat and second is that he has been permitted to occupy a hut. Therefore, unless the 1st defendant adduces evidence to satisfy the definition of kuidikidappukaran, the Land Tribunal cannot enter a finding. The 1st defendant did not make any attempt to adduce any evidence before the Land Tribunal in that respect. Therefore, it is not open to the appellant now to contend that the Land tribunal did notdiseharge its duties properly. The learned counsel for the appellant also relied on the decision of the Supreme Court reported in Victoria v. K. V. Naik ( (1997) 6 SCC 23 ). IN Victoria's case (supra), the Supreme Court has held that if the plea of kudikidappu right had not been raised and rejected, it would operate as resjudicata on the principle of might and ought. If it is taken and rejected, it operates as resjudicata and the same cannot be raised in execution. That decision will not in any way help the case of the appellant. On the other hand, that decision will help the respondents in as much as the Supreme Court has observed as follows: "after all, the mortgagee-money lender comes into possession of the property as mortgage and always remains as mortgagee unless limitation snaps off the link. He cannot be permitted in good sense of law to eat away the cake as kudikidappu. " IN this case, the definite contention of the defendants is that he wanted to purchase the land and building at Rs. 5,000/- per cent for the land and Rs. 10,000/- for the Building. IN such a situation, it is impossible to think that he can also claim kudikidappu right because he was originally a mortgagee and the 1st defendant was advancing further amounts to the mortgagor. The other contention raised by the learned counsel for the appellant is with regard to interest for the value of improvements. Interest is claimed under S. 63a of the Transfer of Property Act. It has to be noticed that neither before the trial court norbefore the lower appellate court such a contention was raised by the appellant. Sub-s. (2) of S. 63a specified that where such improvements was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, the mortgagor shall in the absence of a contract to the contrary be liable to pay the proper cost thereof as an addition to the principal money with interest as is payable on the principal. S. 72 of the Transfer of Property Act states that a mortgagee may spend such money as is necessary for the preservation of the mortgaged property from destruction, forfeiture or sale and in the absence of a contract to the contrary add such money to the principal money at the rate of interest payable on the principal and where no such rate is fixed at the rate of nine per cent per annum. Proviso to S. 72 states that the expenditure of money by the mortgagee under Cl. (b) or Cl. (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title. Therefore, it can be seen that for the application of S. 63a, the improvements must have been made for preserving the property from destruction or deterioration and under S. 72 such spending of money for the preservation shall not be deemed necessary unless the mortgagor has been called upon and has failed to take timely steps to preserve the property. In this case, the courts below have not referred to any such demand by the mortgagee calling upon the mortgagor to take such steps. There is neither pleading nor any such contention even at the time of argument before the courts below with regard to interest on the improvements made. The learned counsel for the respondent submitted that his counterpart in the lower court had volunteered to pay the value of improvements as assessed by the commissioner in order to see that the property is delivered without further delay and there was no other contention raised in the appellate court. In the light of what is stated above, there is no merit in the appeal and the judgment and decree of the lower appellate court do not call for any interference in second appeal and it is dismissed without any order as to costs. . .;

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