Decided on November 16,1967



- (1.) In this appeal preferred by defendants 1 and 2 in a suit for redemption of an usufructuary mortgage the only question raised before me is whether the defendants are entitled to be paid value of improvements in respect of the conversion by them of a portion of the Nilam into garden land. Although the Trial Court upheld the claim of the defendants for value of improvements, the lower appellate court held that the conversion of paddy land into a reclaimed garden does not constitute 'improvement' within the definition of the term in Kerala Act 29/1958 and that therefore the plaintiff is not liable to pay any compensation for such work done by the defendants.
(2.) On behalf of the appellants, learned counsel relies upon the provision contained in the mortgage deed Ext. P 1 whereunder the mortgagee is authorised to reclaim an extent of 14 cents situated in the southern portion of the mortgaged property and to convert it into a garden and also to put up buildings and structure thereon. What has however happened is that the defendants left the southern portion severely alone but reclaimed an extent of 14 cents in the northern portion of the property. This work is certainly not covered by the provision in Ext. P 1 and the mortgagor has not contracted to pay for such reclamation work. The only question that remains is whether the mortgagee is entitled to get compensation for the work so done by him treating it as an improvement under the Kerala Compensation for Tenants Improvements Act. In Sankaran v. Sankaran Channar ( 1959 KLT 1259 ) Vaidialingam, J. held that the conversion of a double crop paddy land into a garden land, however desirable it may be from the point of view of the mortgagee or the tenant, is a substantial alteration of the character of the holding and cannot therefore be considered to be an 'improvement' in any sense of the term. The learned Judge referred to the definition of the expression, 'improvement' contained in S.2(b) of the Act and held that such a conversion of paddy land into garden land cannot constitute the 'improvement' because the work will not be consistent with the purpose for which the holding was mortgaged.
(3.) The same view has been taken by Velu Pillai, J. in Markose v. Pennamma & Others ( 1962 KLJ 1061 ). The learned counsel for the appellants submitted that the view taken in the aforesaid decisions is incorrect and requires reconsideration. I do not however, see my way to accept this contention. I am in respectful agreement with the aforesaid pronouncements and applying to the present case the principle laid down therein, it has to be held that the defendants are not entitled to claim compensation in respect of the work of reclamation done by them in the northern portion of the mortgaged property.;

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