- (1.) THIS is a second appeal by the plaintiff in a suit for redemption. The defendant Chintaman Das, respondent No. 3, has filed cross-objections.
(2.) THE relationship of the plaintiff-appellant with the original mortgagor is shown by the following table - Kanwarlal Chhoteylal = widow Mst. Gurka Ghasilal = widow Mst. Bhawani Bhanwarlal = widow Mst. Kesar (plaintiff) Mst. Kesar instituted the suit on the 15th of June, 1944, on the allegations that Mst. Bhawani and Bhanwarlal mortgaged their half share in a house situated at kotha on the Chogan Road, consisting of a specific portion in that house, subsequently described to be as follows - (1) In the first storey - Pakka obra facing west opening in a tibari. (2) In the second storey - Two chobaras one facing east and another facing west, one tibari and four ikdaras. (3) In the third storey - Chobara facing west, uteri facing east and another chobara facing east, for a consideration of a loan of Rs. 325/- on 31st July, 1912, with Ramchandra Kesrilal under a registered mortgage of the aforesaid date, and the period of redemption was fixed as ten years. It was alleged that Kesrilal had died and was represented by Mst. Gulab, and, therefore, Ramchandra and Mst. Gulab were made defendants. Both Ramchandra and Gulab pleaded that the house had been sold to Chintamandas, and, therefore, he should be made a party to the suit, Chintamandas was added as defendant No, 3. Ramchandra and Gulab did not contest the suit beyond stating that the property was not in their possession, and had been sold to Chintamandas, Chintaman Das denied the mortgage, and pleaded that Ramchandra and Kesrilal had purchased the whole house from Mst. Gurka by a registered sale-deed dated 3rd of August, 1912, in lieu of Rs. 315/ -. Thereafter Ramchandra Kesrilal mortgaged the whole house with one Mannalal by a registered document dated 18th January, 1913, to secure a loan of Rs. 400/ -. Mannalal obtained a decree and put the whole house to sale, which was purchased by Chintaman Das under an auction sale on the 15th of June, 1915, and the sale was subsequently confirmed and the sale certificate was issued to him on the 25th of October, 1915. Thereafter Chaintaman Das in the belief that he was the full owner thereof remodelled and reconstructed the whole house including the half portion now sought to be redeemed, and spent about Rs. 5,000/- in this reconstruction. It was pleaded that Mst Bhawani and Bhanwarlal as also the plaintiff Mst. Kesar knew very well of all this new construction by Chintaman Das, but had never objected to it, and Mst. Kesar was, therefore, estopped from asserting her right of redemption, if any. It was also pleaded that Chintaman Das having purchased the property in auction-sale about 29 years prior to the suit, the date of redemption was barred by limitation. The suit was originally dismissal on the point of limitation, but it was held to be within time on appeal to the High Court After remand the Civil judge held that Mst. Gurka had no right to sell the whole property and the mortgage by Bhawani and Bhanwarlal was proved, and, therefore. Mst. Kesar, who was the sole legal representative of the mortgagors, was entitled to redeem the property. It was held that Chintaman Das having purchased the property in a court auction could not get more rights than what the judgment-debtors Ramchandra Kesrilal had, and that such rights were only absolute with regard to the halt portion which belonged to Gurkabai, but with respect to the other halt, they had only the mortgagee rights. The plaintiff was held entitled to redeem the property, but it was held that as Chintaman Das, believing himself to be an owner of the property, had spent money in making improvements, it would be equitable if the plaintiff was given a decree for money in respect of her interest in the property. The court assessed Rs. 1200/-as the value of the interest of the plaintiff and gave a decree for that amount, and ordered that on payment of this sum within two months, all the rights and interest of the plaintiff will be deemed to have been transferred to Chintaman Das. The plaintiff was also awarded her costs. Both parties filed appeals, but they were dismissed by the District Judge by judgment dated 30th August, 1951. The plaintiff has come in second appeal, while the defendant Chintaman Das has filed cross-objections The plaintiff's appeal is that the award of compensation was not proper, and a decree for redemption of the property mortgaged should have been passed. The defendant's cross-objections are that out of the amount directed to be delivered to the plaintiff the mortgage amount of Rs. 325/-should have been deducted. Learned counsel for the plaintiff appellant has urged that the two courts have committed error in relying on sec. 51 of the Transfer of Property Act, when a plea to that effect had not been taken by the defendant, and in any case the aforesaid section had been wrongly interpreted. In my opinion, although the plea allowed by sec. 51 was not taken because the Transfer of Property Act bad not been shown to be in force in Kotha at that time, yet the facts which may enable the defendant to obtain the benefit of sec. 51 were stated by him. The principle embodied in sec. 51 of the Transfer of Property Act is a general one, and would be applicable in places where the Transfer of Property Act is not in force, as being in consonance with justice, equity and good conscience (Koran Singh vs. Budh Sen (1) ). The defendant Chintaman Das had clearly stated in the written statement that after the purchase in the auction sale, he considered himself to be the full owner of the property, and in that belief reconstructed the property and spent considerable amount over it. The plea has been upheld by the two courts. While the two courts have held that the actual amount spent by Chintaman Das in reconstructing this particular portion of the property has not been proved, yet there was evidence on record that he did make considerable improvements. The plaintiff has produced certain documents purporting to be the permits under which the repairs and reconstruction had been made. These are Exs. DD 2, DD 3, DD 4, DD 5, DD 6, DD 7, DD 8, DD 9 and DD 10. He has also produced Mr. Ram Ratan, retired Assistant Engineer, who has drawn rough sketch, and made out a rough estimate of the value of such repairs and reconstruction at Rs. 3476/ -. This may not be accepted to be correct, but all this documentary evidence shows that certain improvements were made to the property by Chintaman Das, while he believed himself to be the full owner of the property. The principle of sec. 51 of the Transfer of Property Act is that if any transferee of immovable proprety makes any improvement on the property, believing in good faith that he was absolutely entitled thereto, and he is subsequently evicted therefrom by a person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The lower courts were not right in fixing Rs. 1200/- to be paid to the plaintiff. It was at the option of the plaintiff, who is the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee or to sell her interest. While, therefore, maintaining the decree of the two courts declaring that the plaintiff has a right to redeem the mortgage made by Mst. Bhawani and Bhanwarlal by document of 3lst July, 1912, and Chintaman Das, the purchaser of the property at the court auction, having made improvements on that portion of the property, believing himself to be the owner, the plaintiff Mst. Kesar should be allowed the option whether she would have the value of the improvements estimated and paid or secured to the transferee, or would like to sell her interest in the property to the transferee at the present market value thereof, irrespective of the value of such improvement, that is, without taking into consideration the value of such improvement. The option is to be exercised by the plaintiff within two months of the delivery of this judgment, and should be notified to the trial court. If there be any dispute as to the fact of repairs being done to any portion of the property, the matter may be decided on such evidence as the parties may choose to produce. In case the option is not exercised she will get Rs. 1200/- as settled by the trial court. The appellant has already been allowed costs of the trial court. She will also get half costs in the lower court and in this Court, As to cross-objections, they are not maintainable, because the cross-objections lie to the decree appealed against by Mst Kesar. That decree is entirely in favour of Chintaman Das, as the appeal had been dismissed. Chinta-man Das could have filed a second appeal, but this he has not done. The cross-objections are accordingly dismissed. No order as to costs, because the objection was nut raised on behalf of Mst. Kesar. . ;