Chandi Avira vs Thomman Varkey and Others

Subramania Iyer, J.—This is an appeal filed by the Plaintiff against the judgment and decree passed by the Additional Temporary Second Judge, Kottayam, on 11th Kumbhom 1116, dismissing his suit, O. S. No. 96 of 1102 on the file of the District Court of Kottayam which was for redemption of a mortgage and puravaippa. The appeal, besides impeaching the decree, attacks the findings recorded by the learned Judge that in the event of redemption compensation for improvements is payable by the Plaintiff. The properties sought to be redeemed are Cherikkal lands, that is to say, "lands on the summit and slopes of hills cleared for purposes of cultivation." A certain mannoor Tarwad originally held the properties on Adiyara tenure as early as the year 983 M. E. That tarwad usufructuary mortgaged the properties to one Valluvasseril Kurian Mani in the year 1021 and assigned the equity of redemption in the year 1027 in the name of one Ratmaru Kartha benami for the mortgagee. Exhibit W is the deed of assignment. On even date Kartha gave a surrender in favour of the said Mani acknowledging his benami character and the real title of Mani. On 20th chingom 1062 Kurien son of the said Mani gave a usufructuary mortgage of the properties in favour of Varkkey Thomman, the father of Defendants 1 to 3 for Rs. 500. Exhibit B is the deed of mortgage. On 12th Karkadogom 1062 the said Kurien executed a puravaippa, i.e, a subsequent simple mortgage for Rs. 350 in favour of the mortgagee. Exhibit C is that deed of puravaippa. The mortgagee Varkkey Thornmen died thereafter, leaving Defendants 1 to 3 as his heirs. On a 1st Vrischigom 1083, Defendant 2 gave a sub-mortgage of 1/3 of the properties for Rs. 684 to Defendants 4 and 5. Exhibit A is the sub-mortgage deed. Three days later, Defendants 1 and 3, gave a sub-mortgage of their 2/3 interest also in favour of Defendants 4 and 6 for Rs. 2,052. The document is not filed, but the fact is admitted. Thus, Defendants 4 and 5 became the sub-mortgagees of the entire interest covered by Exs.B and C.

On 23rd Thulam 1096, Kurien Mani, the son and representative of the aforesaid Kurien, assigned the equity of redemption over the properties in favour of Defendant 6. Exhibit AD is the deed of transfer. Defendant 6 in his turn assigned his rights in favour of the Plaintiff on 9th Kumbhom 1102. Exhibit D is the deed of transfer in favour of the Plaintiff. Those are the facts relied upon by the Plaintiff to entitle him to a decree for redemption.

There were only 6 Defendants to the suit originally. Defendant 4 died pending the suit on 2lst Thulam 1107 and his legal representatives were impleaded as Defendants 7 to 14. The Respondents to this appeal are Defendants 1 to 9 (Respondents 1 to 3), Defendants 5 and 6 (Respondents 4 and 6) and Defendants 7 to 14 (Respondents 6 to 13).

The suit was filed on 17th Kumbhom 1102. Along with the suit the Plaintiff filed an application for an injunction restraining the Defendants from effecting improvements on the properties and from altering their appearance in any other manner, and obtained an ad interim order. The Plaintiff also filed an application for the issue of a commission to inspect the properties and report on their then condition, The Court appointed a commissioner who inspected the properties in the presence of the Plaintiff and Defendants 2 and 5. The Commissioner submitted his report on 9th Medoc 1102 which is Ex. R in the case. Defendant 6 filed written statement on 27th Idiom 1102 and Defendant 2 filed written statement on 27th Mithunam 1102. The remaining Defendants were ex parte.

Defendant 2 admits the Plaintiff''s claim and agrees to a decree as sued for. Defendant 5 contended inter alia that within the boundaries shown in the mortgage deeds as also in the plaint, a much larger extent and other survey numbers, than the extent and survey numbers shown in the plaint are comprised, that in that extra extent the sub-mortgagees have effected considerable improvements, that the relief claimed by the Plaintiff is to redeem the unimproved part of the mortgage properties excluding the improved portion which, if allowed, would prejudice the mortgagees, and that for the reason that the redemption sought is partial, the suit is unsustainable He put the Plaintiff to proof of the original title of the Maunoor tarwad and of Mani Kurien. He pleaded ignorance as to whether the father of Defendants 1 to 3 got possession, under the usufructuary mortgage of 1062 of all the properties comprised in the mortgage. He also pleaded that pursuant to the sub-mortgage in favour of Defendants 4 and 5, the sub-mortgagees got possession only of a part of the properties and did not get possession of survey Nos. 1951/1 and 1952/3, measuring 176 acres 35 cents as shown in the plaint, that those survey numbers had been declared and constituted a Reserve Forest called the Kalaketti Reserve by the Government taking proceedings in that behalf even as early as the year 1078, that the Government were thereafter in possession of these properties as Reserve Forest, that he filed a suit (O. S. No. 9 of 1092 on the file of the Kottayam District Court) against the Government in respect of those properties, that that suit was compromised the Government agreeing to give the properties to Defendants 4 and 5 as Pudaval on payment of Rs. 13,6373/4 towards value of Bite and trees thereon, that that amount was paid by Defendants 4 and 5, and that they are in possession under that title and not as mortgagees. Defendant 5 also contended that the equity of redemption over the mortgaged properties comprised in the mortgage had been purchased by his father from the representatives of Mani Kurien as early as in the year 1083 and that though the transfer in favour of Defendant 6 was by the members of the owner''s family, the transfer could not operate to convey anything as the entire title hand already been assigned in favour of his father. The averment in the plaint that the mortgagees are not entitled to any value of improvements was also denied by Defendant 5, who contended that though there is no provision enabling the mortgagees to effect improvements in the mortgage in favour of the father of Defendants 1 to 3, the sub-mortgage in favour of Defendants 4 and 5 did contain a provision in that behalf, that pursuant to that provision, the sub-mortgagees had effected considerable improvement which fact was known to and acquiesced in by the mortgagors and that the title of the mortgagees to get compensation could not in any event be disputed.

On 4th Mithunam 1102, the District Court dismissed C. M. P. No. 2094 of 1102, disallowing the injunction prayed for and cancelling the interim injunction granted. The two grounds mainly relied upon by the Court for dismissing the petition were, that the suit was one for partial redemption and that the Forest Department having been in possession after the year 1078 on account of the afforestation proceedings relied upon by Defendant 5, the mortgagors'' claim had been lost by adverse possession. Against that order, the Plaintiff filed Civ. Misc. App. No. 116 of 1102 in the Travancore High Court. The decision of the High Court is reported in Chandi Avira v. Thommen Varkki 3 T.L.T. 5 of the judgment of the High Court are as follows:

(ii) The lower Court refused the application holding inter alia that neither the Plaintiff nor his predecessors in title had possession of the property after the year 1078 since which date the Forest Department had been in occupation. The rights of the mortgagors were therefore lost by adverse possession. Another argument relied on by the learned Judge was that the Commissioner''s report shows that within the boundaries given in the plaint were several survey numbers other than those mentioned there and that the suit was bad as being an attempt to obtain a partial redemption. The learned Judge refers to the sale of 1083 set up in the written statement but does not express any opinion as to its validity. Hence this appeal.

(iii) I do not think the above grounds relied on by the lower Court are sound. In his suit viz., O. S No. 19 of 1092 (sic) (O. S. 19 of 1092) Kottsyam District Court, Defendant 5 relied both on his sub-mortgage and on his sale. His position therefore apart from the sale will be that of a sub-mortgagee in possession. That suit was determined by a compromise decree which is therefore not an not of the Court determining the rights of the parties, but only one which carries into effect a transaction between the parties. In the event of Defendant 5 failing to establish his sale from the Vallavassori family, it does not appear clear, how he can deny that the advantage obtained from the compromise decree should enure so the benefit of the mortgagors as well. It is of course possible that he may be able to claim credit for payment made under the decree as having been made bona fide for the purpose of saving the property. But that is not a point which need be considered at present. As regards the possible omission from plaint schedule of certain survey numbers even if it is a fact, it may merely amount to misdescription which could be cured by amendment.

(iv) * * * * *

(v) As two of the grounds relied on by the lower Court show that the Plaintiff had made out no prima facie case are discovered to be unsound, (sic) I do not think that the order of the lower Court can stand, and would set aside and send back the case for retrial and disposal according to law. Costs to be costs in the case. Vakil''s fee in this Court rupees (15) fifteen.

V.S. Subramonia Iyer, J.- I agree. Retrial ordered. The petition does not appear to have been dealt with thereafter by the lower Court.

The Plaintiff filed a written statement ("reply") as ordered by the Court on 27th Edavom 1105, wherein he stated that the suit is to redeem the entire extent of properties comprised in the mortgage and that the absence of the remaining survey numbers and extent in the plaint is an omission. He also stated that he is prepared to pay Defendants 4 and 5 the amounts claimed by them as having been paid for obtaining the properties pursuant to the compromise in O. S. 9 of 1092.

Issues in the case were framed on 30th Edavom 1105 and the case was posted for evidence. Thereafter the lower Court issued a commission at the instance of Defendant 5 to examine the properties, value of improvements and submit a plan, report and valuation statement. Exhibit 14 is the plan, Ex. 15 is the report, Ex. 16 is the mahazar and Ex. 17 series, the lists of valuation submitted by the Commissioner on the 11th Thulam 1106. The entire extent of the properties comprised in the mortgage sought to be redeemed is denoted by the Commissioner by a redline boundary and that part of it which formed the subject matter of O. S. 9 of 1092 is indicated by a green-line boundary. The Commissioner has separately noted and valued the improvements on the properties comprised in the green-line boundary as also outside the green-line boundary but within the red-line boundary. He valued the improvements on the property comprised in the green-line boundary at Rs. 49,367 Chs. 25 and 13 cash and on the rest of the properties at as. 1,21,414 Chs. 18 cash 9. Exhibit 15 shows the valuation and Ex. 14 shows the extent and other particulars.

Defendant 4 who was ex parte died on 2lst Thulam 1107 and his legal representatives brought in as Defendants 7 to 14 also remained ex parte.

On 12th Kanni 1115, the Plaintiff filed C. M. P. 311 of 1115 for amendment of the plaint by insertion of the omitted survey numbers and extent in the plaint. That petition was accompanied by a statement of even date showing the survey numbers and extent. Amendments were allowed by the lower Court on 1st Vrischigom 1115. Against that order, Civ. Revn. Petn 880 of 1115 was filed by Defendant 5 in the High Court of Travancore impleading the Plaintiff alone as party Respondent. The High Court allowed the revision on the ground that the amendment should not have been allowed as the application was made when the arguments were practically over. The High Court, however, observed that:

the parties should succeed or fail on the pleadings on which they rested the case.

When the petition for amendment was pending in the Court below, Defendant 8 filed C. M. P. 602 of 1115 stating that he knew about the suit only when he got notice on the application for amendment and praying that the order declaring him ex parte may be set aside. That application was allowed and Defendant 8 filed a written statement on 80th Thulam 1116. Defendant 8 in para. 2 of his written statement admits all the statements contained in Para. 1 of the plaint, which paragraph states all the facts commencing from the registry in favour of the Mannoor tarwad of the year 983 and the subsequent transactions from the year 1021 culminating in the sub-mortgage in favour of Defendants 4 and 5 in the year 1083. Paragraph 1 of the plaint also states that possession of the properties was given to the father of Defendants 1 to 3, that their father and afterwards they were in possession as mortgagees until they parted with possession in favour of Defendants 4 and 5 pursuant to the sub-mortgage in their favour, and that Defendants 4 and 5 are in possession thereafter and continue to be in possession as sub-mortgagees. The only contest raised by Defendant 8 is that the equity of redemption was assigned by the representatives of Mani Kurien in favour of the father of Defendant 6 on behalf of Defendants 4 and 5 on 8th Makaram 1083 and that, therefore, the transfer of the equity of redemption in favour of Defendant 6 of the year 1096 and the subsequent transfer by Defendant 6 in favour of the plain tiff of the year 1102 relied upon in Para. 4 of the plaint, are invalid and inoperative. In Para. 8 of his written statement, Defendant 8 mentions the various survey numbers that Defendants 4 and 5 got and Defendants 5 and the representatives of Defendant 4 continued to be in possession of, measuring over 300 acres and seeks information from the Plaintiff as to the location of the properties indicated as measuring 176 acres 35 cents in the plaint. As per the order of the Court, the Plaintiff filed a statement on 13th Vrisohigom 1116, declaring in Para. 3, that the properties sought to be redeemed in the suit are all the properties measuring 300 acres odd. shown in Para 8 of the written statement of Defendant 8 as properties that came into the possession of Defendants 4 and 5 as sub-mortgagees. Paragraph 2 of the said statement contains an explanation as to how a smaller extent happened to be shown in the plaint. The explanation is that it was on account of a mistake in commutation of the para extent mentioned in the documents into the extent as per survey in terms of acre and cent. Paragraph 2 also makes reference to the Plaintiff''s written statement filed in answer to Defendant 5''s written statement wherein the Plaintiff stated that all the properties comprised in the mortgage are sought to be redeemed in the suit.

The points that arise for decision in this appeal are:

(i) whether the Plaintiff has established his title to redeem,

(ii) what is the extent of the properties comprised in the plaint,

(iii) what is the effect of the afforestation proceedings relied upon by Defendant 5 and the compromise decree in O. S. 9 of 1092 pursuant to which Defendant 5 claims irredeemable title, and (iv) what is the price of redemption.

Point (i). The learned Judge in the Court below found that the Plaintiff has not established his title to redeem. He brushed aside the admissions of Defendant 5 contained in Exs. AA, AB and AC which are the plaint, the rejoinder and the deposition of Defendant 5 in O. S. 9 of 1092. They contain unequivocal admissions by the Plaintiff that the properties comprised in the two Cherioals, Vadakunthala and Kurtalingattru and a certain purayidom covering an extent of over 300 acres were in the possession of the mortgagee (the father of Defendants 1 to 3), Varkki Thommen, that they continued to be in the possession of Defendants 1 to 3 after their father''s death, that those properties came into the possession of Defendants 4 and 5 under the sub-mortgage of 1088, that Defendants 4 and 5 continued to be in possession, that in the year 1088 the Government alleging trespass by Defendant 5 into Reserve Forest, took certain criminal proceedings which ended in his conviction, That in consequence of the said conviction and only after that conviction the Government assumed possession of some of the properties before the suit was filed, that after the suit was filed, the entire properties claimed by the Government as being comprised in the Reserve forest, was taken possession of by the Government, that the afforestation proceedings relied upon by the Government did not comprise any property in his possession as sub-mortgagee, that in so far as the properties in his possession are concerned, no cairns had been put up at the time of the alleged afforestation proceedings that cairns were put up only after the suit, that in consequence of the prior, continuous and uninterrupted possession of the properties by himself and his predecessors, he is entitled to get back the properties from the Government. The lower Court did not attach importance to the admissions of Defendant 5 on the ground that they did not operate as estoppels. The lower Court erred in supposing that the only kind of admissions that will either be relevant to, or conclude, the matter in issue are admissions operating as estoppels. Two other kinds of admissions, equally if not more effective are (1) admissions contained in the pleadings in a case which would circumscribe the issues and avoid the necessity for proof, and (2) admissions made by the parties to a suit on earlier occasions, either in prior proceedings in a Court of law, or in statements made out of Court.

In this case, in the written statement Defendant 8 admits that the statements contain in Para.1 of the plaint are true, that possession of the entire properties comprised in the mortgagee(SIS) passed to the mortgagee, the father of Defendants 1 to 3, that the possession of the entire property passed to Defendants 4 and 5 under the sub-mortgage, and that the sub-mortgagees continued to be in possession until their possession was sought to be disturbed by the Government and until the circumstances leading to the filing of O. S. 9 of 1092, which ended in a compromise by the Government pursuant to which Defendants 4 and 5 are in possession. Had this been the only written statement in the case, the question of the original title to the father of Defendants 1 to 3, or his possession of the properties, or as to whether possession of the properties was given to Defendants 4 and 5 as sub-mortgagees, would not have been matters in issue. These questions, however, having been put in issue by Defendant 5, issues had been framed and had to be considered. In consider(SIC) upon a co-Defendant but they would certainly bind the party making them. So far as Defendant 5 is concerned, the admissions made by him (contained in the plaint, Ex. AA, in the written statement, Ex. AB, and in his deposition, Ex. AC) can be relied upon by the Plaintiff as evidence to establish the title set up by him in the plaint as prima facie proving his claim. As observed by Baron Parke in Slatterie v. Pooley (1840) 6 M. & W. 664 : 10 L. J. Ex. 8 quoted by their Lordships of the Judicial Committee in Chandra Kunwar v. Chaudhuri Narpat Singh 29 ALL. 184 : 34 I. A. 27 P. C. "what a party himself admits to be true may reasonably be presumed to be so." The burden of proof is, no doubt, upon the Plaintiff, but it is difficult to conceive how he could, as against Defendant 5, prima facie, at all events, discharge that harden more effectually than by proving his solemn statement, verified by him to be correct, contained in Ex. AA and Ex. AB and the sworn testimony given by him in the witness box, Ex. AC. These admissions are, no doubt, not conclusive, and can be rebutted and the question for consideration will, therefore, be "has Defendant 5 proved satisfactorily that the admissions made by him in Exs. AA, AB and AC are, in fact, untrue", In our opinion, the answer must be in the negative. The only explanation that Defendant 5 (examined in this case as D. W. 2) attempts, is in respect of Exs. AA and AB, and the explanation is that the statements were so made therein as advised by his lawyer. This explanation can hardly be accepted. Time was, when, according to John Vesley, a Bill in Chancery was "stuffed with stupid, senseless, improbable lies," and Bentham spoke of it as "a volume of notorious lies". In that time of antiquity, pleadings used to be rejected as admissions on the theory that the statements were not those of the party, but were merely "pleader''s matter" and consisted largely of "suggestions of counsel" and "flourishing of the draftsmen." But all that time is long since past and the improved system of pleadings envisaged by the CPC in India enjoin preparation of pleadings in such a way as to obviate the possibility of such explanations on questions of fact.

Defendant 5 has not even attempted any explanation in respect of the admissions contained in his previous deposition (ex. AC) which was shown to and admitted by him in the witness box. Indeed he admits that Ex. AC is his deposition and that he does not remember having surad(SIC) anything therein which is false.(SIC) 1062 recites that possession of the properties is given to the mortgagee. That document is accepted and produced for registration by the mortgagee. The Puravaipa in favour of the mortgagee Varkki Thommen in Ex. C was taken by him 11 months after Ex. B. That document was also accepted and produced for registration by the mortgagee. Exhibit C contains a recital that the properties, the equity of redemption of which is being mortgaged there under, are in the enjoyment of the mortgagee, pursuant to the possessory mortgage, Ex. B. Had there been no delivery of possession of all or any part of the properties comprised in Ex. B, the mortgagees are hardly likely to have accepted the statement contained in Ex. C, viz., that the properties are in the possession of the mortgagee pursuant to the possessory mortgage. In the sub-mortgage in favour of Defendants 4 and 5, there is a recital that the sub-mortgagors (Defendant 2 along with others) are in possession and enjoyment of the properties paying the tax due to the Government. If any part of the properties comprised in the mortgage had not been delivered pursuant thereto to the sub-mortgagee, one would expect some complaint in that regard. No such complaint is seen to have been made at any time. It is admitted in this case that possession of part of the properties comprised in the mortgage (Ex. B) and sub-mortgage (Ex. A), passed to the mortgagees and sub-mortgagees pursuant to those documents. Defendant 5''s only complaint is that, as regards the properties comprised in the afforestation proceedings, even if the mortgagee under Ex. B had possession, he ceased to have such possession from the year 1080, when the notification u/s 18, Travancore Forest Act II [2] of 1068, constituting the Kalaketti Reserve Forest was passed. Exhibit G is an application filed by Defendant 4 before the Huzur Outcherry enquiring whether any of the properties in his possession as sub-mortgagee is comprised in the Reserve Forest and he got an order dated 11th Karkadagom 1084 in the negative. Exhibit G1 is the order. Exhibit XXI dated 80th Chingom 1087 is an order from the Government to Defendant 5 that no property in his possession is included in the Kalaketti Reserve. Exhibit XXVIII is an order of the Division First Class Magistrate, Kottayam, dated 8th Thulam 1084 in a dispute relating to possession of some of the properties comprised in Exs. B and A. The Petitioners therein are Defendants 4 and 5. They claimed to be in possession pursuant to the sub-mortgage in their favour and that claim was upheld. Exhibit II of the year 1085, Ex. I of the year 1088 and Ex. III of the year 1090 are petitions by Defendant 5 claiming relief based upon his possession of some of the properties comprised in the sub-mortgage in question. It is thus seen that until the defense was entered in this case, there was no occasion when Defendants 4 and 5 ever stated that any part of the properties comprised in the sub-mortgage in their favour did not come to their possession or continue to be in their possession until such possession was disturbed by the Government in the year 1088 or 1089. Except producing Exs. IX, XI and XII, the contesting Defendants have made no attempt to prove that there was, in fact, afforestation of any part of the properties sought to be redeemed in this case, or that any part of these properties had been, at any time, in the actual possession of the Government as forest forming part of the Kalaketti Reserve. It is thus clear that the Plaintiff has established his title to redeem, in so far as title and possession under the mortgage (Ex. B) and sub-mortgage (Ex. C) are concerned.

Another aspect of the question relating to the Plaintiff''s title to redeem remains to be considered and that relates to the claim of the Plaintiff that he has acquired title to the equity of redemption from Defendant 6 under Ex. D who got it under Ex. AD. The contention of Defendants 5 and 8 in this matter is that the equity of redemption had already been purchased by the father of Defendant 5 as early as in the year 1083, under Ex. IV and that there was nothing left to be conveyed to Defendant 6 in 1096 under Ex. AD. The lower Court finds in favour of the validity of both Exs. IV and AD on the view that the vendors therein were both part-owners of the equity of redemption and each document operates to convey the part ownership of the respective transferers. P. W. S is the son of the executant of Ex. AD. He swears that his grandfather Kurien (who is the executant of Ex. B) had an only son Mani who was his father. The case of the contesting defendants is that P. W. 2''s father is no doubt a son of Kurien, but he was the son of Kurien''s first; wife, that Kurien married another lady and through that wife, he had two sons, Chandi and Mathai, and the executants of Ex. IV, Mariam and Dummini, are the children of the said Chandy and Mathai respectively. This case is disproved by P. W. 2. It is, therefore, clear, that the executant of Ex. AD had a title in the equity of redemption to convey that Ex. AD is an operative document, and that Defendant 6 who was the purchaser under Ex. AD could convey title to the Plaintiff under Ex. D. Whether the assignor under Ex. AD is the sole owner of the equity of redemption or whether, as held by the Court below, the executants of Ex. IV in favour of the father of Defendant 5 are also co-owners of the.

equity of redemption need not be decided in this case, as the contesting Defendants did not raise a plea that the Plaintiff is a transferee from a co-owner of the equity of redemption and as such disentitled to redeem the properties from them who are also co-owners. That question is, therefore, left open as the Plaintiff would have a title to redeem, even if the transferor under Ex AD be regarded only as the owner of a part of the equity of redemption. Another contention raised by the Defendants against the Plaintiff''s claim for redemption is that Exs. D and AD under which Plaintiff claims title are unsupported by consideration and are, therefore, inoperative. This plea is not available to the Defendants who are utter strangers to the said deeds which stand good between the parties thereto (SIC) (vide Ahmad-ud-Din Khan v. Sikander Begum 18 ALL 256 : (1896) A. W. N. 52 and Aahal Ram v. Kazim Hussain Khan 27 ALL. 271 P. C. : 32 I. A. 113 P. C. We are, therefore, of opinion that Plaintiff has clearly established his title to redeem.

Point (ii)-The written statements filed by Defendants 5 and 8 show that the properties comprised within the boundaries of the mortgage sought to be redeemed comprise an area of over 800 acres. The boundaries given in the schedule to the plaint are the same as those in the usufructuary mortgage deed, Ex. B. The properties are described in the schedule to the plaint an "the whole block comprising the Yadakkumthala and Kuttalingattu cherikkals as also the Palathanam Purayidom " within the boundaries. The survey numbers shown in the plaint are only 1951-1 and 1953-2 and the extent is shown in the plaint as 176 acres and 35 cents. On the basis that the plaint relates only to the specific survey numbers and extent shown in the plaint us aforesaid, the plea was raised by Defendant 5 that the suit is one for partial redemption (SIC) is unsustainable for that reason. Issue 16 raised in the case relates to that plea. In answer to this, the Plaintiff filed a written statement stating that he seeks to redeem in the suit the entire property comprised in the mortgage. With reference to this matter, the High Court, in C. M. A. 116 of 1102, stated that the omission of certain survey numbers from the plaint may merely amount to misdescription, which could be cured by amendment. Defendant 5 got a commission issued by the lower Court to inspect the properties and ascertain and locate the proper, ties comprised in the mortgage. The report submitted by the Commissioner (Ex. XIV) shows the properties comprised in the mortgage enclosed by red-line boundary, taking in the southern portions of survey Nos. 1944/1, 1947/1, 1948/1. and 1949/1 and the entire extent of survey Nos. 1945/1, 1946/1, 1950/1 and 1952/1 and a small bit on the north-western corner of survey No. 1951/1B, covering an extent of 119 acres 50 cents as also survey Nos. 1951/1B, 1952/2 and 1952/3, covering an extent of 183 acres 46 cents, the latter being the subject matter of O. S. No. 9 of 1092, which lead to the compromise decree (Ex. K). Thus, the total extent of the properties comprised in the mortgage as also in the plaint is 302 acres 96 cents. There is, however, a complication created by the application for amendment made by the Plaintiff in C. R. P. No. 311 of 1116 which, though allowed by the Court below, was dismissed by the High Court in C. R. P. No. 380 of 1115. Apart from the fact that in that C. R. P. only the Plaintiff was a party and that the order allowing the amendment operated not merely in favour of the Plaintiff, but, also in favour of Defendants 1 to 8, and that in their absence, the order passed by the High Court cannot operate to their prejudice, there is the circumstance that even in the order passed by the High Court, there is an express reservation that the parties should succeed or fail on the pleadings on which they rested their case. If on a proper construction of the pleadings, it is to be concluded that the total extent of the properties comprised in and sought to be redeemed by the suit is the entire extent within the 4 boundaries, and not the limited extent indicated by the survey numbers and measurement given, the order of the High Court in revision will not stand in the way of a decree being given for redemption of the entire extent of properties. There is the further circumstance that the written statement of Defendant 8 was filed after the order of the High Court in C. R. P. No. 380 of 1115 which was passed on 24th Karkadakom 1115. In the written statement of Defendant 8 and in the further statement filed by the Plaintiff on 13-4-1116 pursuant to the order of the Court, the extent and survey numbers of the properties sought to be redeemed in the suit have been given as shown in the Commissioner''s plan and report (Exs. XIV and XV). The lower Court dealt with this matter in dealing with issue 16 and came to the conclusion that only the specific survey Nos. 1951/1 and 1952/3 and the specific extent of 176 acres 35 cents shown in the plaint constitute the properties sought to be redeemed in the suit. In coming to that conclusion, the learned Judge depended on the order of the High Court in the aforesaid C. R. P. No. (380 of 1115), disallowing the amendment asked for therein by the plaintiff, and on the circumstance that, during the course of the arguments the advocates appearing on behalf of the Plaintiff admitted that extent alone need be considered as the subject. matter of the suit, though on the Court directing a statement to be filed in that behalf signed by the party, instead of a statement limiting the claim to the specific survey numbers and the specific extent as aforesaid an application for amendment was filed which was ultimately rejected by the High Court. The lower Court infers from the fact of the petition having been field, that the properties specified in the amendment petition and the statement accompanying it, refer to properties to be brought in afresh in the plaint. The lower Court is in error in this conclusion and the reasons leading thereto. The amendment was meant merely to give a complete description of the properties comprised within the 4 boundaries shown in the schedule to the plaint and the mortgage sought to be redeemed in the suit. The lower Court did not also advert to the fact that the order of the High Court in C. R. P. No. 380 of 1115 specifically states that whatever properties can be considered as being comprised in the pleadings will be regarded as the subject matter of the suit. On a proper understanding of the pleadings viz., the plaint, the written statements, as also the supplementary statements in the light of the proceedings in the case narrated above the only conclusion possible is that the properties really included in the schedule to the plaint constitute the entire extent of 302 acres 96 cents as shown in Exs. XIV and XV. The learned District Judge, in considering issue 16 found that the suit is not bad as one for partial redemption based on the conclusion come to by him that the suit is confined to the specific extent shown in the plaint and the mortgage should be regarded as comprising only that extent and in recording a finding in favour of the Plaintiff on issue 16 added a remark "that the Plaintiff cannot in a fresh suit, seek redemption of the remaining area and the other survey numbers." It is impossible to endorse this remark of the learned District Judge, who is not free to decide the competency of a suit yet to be brought. Issue 16 has to be found in favour of the Plaintiff, not for the reason recorded by the Court below, but for the reason that the suit is for redemption of the entirety of the extent of 302 acres 96 cents comprised in the mortgage (Ex. B).

Point (iii). Defendant 5 contends that survey Nos. 1951/1, 1952/2 and 1952/3 were constituted a part of the Kaleketti Reserve Forest in the year 1080 and relies upon Exs. IX, XI and XII. He also contends that the Government was in possession of the properties thereafter, that he got the properties as puduval as a result of the compromise in O. S. No. 9 of 1092 on payment of the value of the site and trees to the Government and that the title thus obtained by him is an absolute title because all antecedent titles over the properties, assuming any existed, before the afforestation, would be destroyed as a result of the afforestation proceedings, and that those rights would not be restored by the subsequent exclusion of the properties from the Reserve Forest and the grant of the same by the Government to private parties. The plaint in O. S. No. 9 of 1092 (Ex. AA) clearly shows that his claim for possession was based entirely on the antecedent possession of himself and his predecessor-in-title. He, in fact, relied upon the registry as adiyara pathivu in favour of the Mannoor Tarwad, their enjoyment of the properties and the continuous enjoyment of the properties by the mortgagees under Ex. B who, in their turn, delivered possession to Defendants 4 and 5 as sub-mortgagees. Regarding the afforestation proceedings, Defendant 5 alleged that they had no relation to the properties in his possession as sub-mortgagee which was a continuous and uninterrupted one ever since the year 983. It is this claim that was the foundation of and the occasion for the compromise of O. S. No. 9 of 1092. The decree of compromise passed in the case is marked as Ex. K. Exhibits A, B, C and W in this case are seen exhibited and relied upon in that case as Exs. A, E, H and P respectively. The issues in the case also show the nature of the claim made by the Plaintiff and the nature of the contest made by Government. The petition of compromise contained in Ex. K distinctly shows that the formal recognition of the title of the Government contained therein was made as a preliminary to getting a puduval registry and that it was conditioned on the Government agreeing to give the properties on puduval registry (see Para. 5 of the petition of compromise copied in Ex. K). Para. 6 of the said petition expressly recites that Government would not be answerable for any loss or detriment arising to Defendant 5 out of any claim for title to or possession of the properties raised by anyone. Defendants 1 to 3 in this case were Defendants 2 to 4 in O. S. No. 9 of 1092. Apprehending that the compromise might adversely affect his interest, Defendant 3 sought to be impleaded as a party Plaintiff. That was opposed by the Plaintiff and the Court, in up-holding opposition put forward by Defendant 5 (Plaintiff therein), stated as follows:

I am unable to see how the plaintiff''s purchase of the Government''s rights over the plaint items is prejudicial to Defendant 3, the relationship of mortgagor and mortgagee still subsists between the Plaintiff and Defendants 2 to 4.

Having taken up this attitude in the case and induced the Court to conclude in his favour and disabled Defendant 3 to fight the battle which, was started by the Plaintiff for safeguarding his interests as well, Defendant 3 cannot be allowed now to (SIC) round and say that he has obtained an irredeemable right over the properties pursuant to the said compromise.

The (SIC) of this case attract the application of the provisional contained in Section 90, Indian Trusts Act which provides as follows:

Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persona interested in such property, gains any advantage, he must hold, for the benefit of all persona so interested, the advantage so gained, but subject to repayment by such persona of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.

The principles embodied in this section are of general application and have been applied in Travancore. Defendant 5 obtained the advantage of a puduval registry in his favour by availing himself of his position as possessory sub. mortgagee under Defendants 1 to 3. Any advantage obtained by him, he would hold, as trustee for his mortgagors (Defendants 1 to 3). That advantage will constitute an accretion to the mortgage property which would enure to the benefit of their mortgagor, that is to say, to the benefit of the Plaintiff who is the mortgagor''s representative. The price paid by Defendant 5 for getting the registry from the Government is at the rate of Rs. 75 per acre, while the adjoining northern property, excluded from the Reserve Forest at about the same time as the compromise of O. S. 9 of 1092 appears to have been given out at the rate of Rs. 250 per acre. The low price can be accounted for only as the result of the antecedent title to and possession of the properties as claimed by Defendant 5. The price paid is moderate and there is nothing to show that the payment was made at the time otherwise than bona fide and in the interests of Defendants 1 to 3 and their (SIC). Defendant 5 does not appear then to have had any idea of claiming the property for himself or as being free from the liabilities under the mortgage. The intention to make that claim would appear to be a subsequent development.

The Plaintiff and Defendants 1 to 3 appear to condemn the compromise in O. S. 9/92 as fraudulent and collusive. The learned Judge in deciding O. S. 9/92 found no fraud. No attempt is made in this case either to prove fraud. But fraud is not necessary to attract the operation of Section 90, Trusts Act. Suffice it, that the party gaining the advantage, obtained it by availing himself of his position as mortgagee. There can be no doubt whatever in this case that Defendant 5 obtained the advantage under the compromise decree in O. S. 9/92 as sub-mortgagee. That advantage he holds on behalf of the Plaintiff-subject to the Plaintiff paying the amount of Rs. 13,6373/4 spent for obtaining the advantage which is an expense properly incurred.

In this view of the matter, the questions as to whether there was in fact any afforestation proceedings at all, whether there were the requisite notifications in that regard, whether the lands not having been at the disposal of the Government, the afforestation even if true can be valid, whether there was an exclusion from forest under the provisions of Section 20, Forest Act, what the consequence of such exclusion would be and whether the sub-mortgage is void under the Contract Act or the Land Conservancy Act raised in the course of the argument do not fall to be decided. There is no dispute that Defendant 5 and the representatives of the deceased Defendant 4 are in peaceful and undisturbed possession and enjoyment of all the properties and are in a position to deliver possession to the Plaintiff on redemption.

2l. Point (iv) The Plaintiff contends that, in so far as improvements effected after the suit are concerned, no value thereof is payable as they were effected after, and in violation of, an order of injunction passed by the Court restraining the effecting of improvements. Though the Court below passed an ad interim order of injunction, the same was cancelled and the petition for injunction dismissed afterwards. In C. M. A. 116 of 1102, filed by the Plaintiff against the order dismissing the petition for injunction, the High Court, no doubt, passed an ad interim order, pending disposal of that appeal which ended in only remanding the application to the lower Court for disposal. No further orders appear to have been passed on that application. It is not, therefore, right to say that improvements made after the suit, were made in violation of the Court''s order. It is not, therefore, necessary in this case, to consider the controversial question as to whether, even if the Court had passed an order of injunction restraining the Defendants from effecting improvements, they would not, nevertheless be entitled to get the value thereof on redemption.

The Plaintiff also contends that the mortgagee is not authorised to effect improvements in Ex. B and that, though the sub-mortgage in favour of Defendants 4 and 5 contains such an authorisation, the same cannot be used against the Plaintiff and that improvements effected without express authority need not be paid for. This contention is untenable. According to the custom prevalent in Malabar, Cochin and Travancore the right of possessory mortgagees to get value of improvements effected by them, independent of any agreement in that behalf but in the absence of an agreement to the contrary, has been recognised. No agreement negativing the right of the mortgagee to get value for his improvements is set up. The correctness of the quantum of the compensation fixed by the Commissioner was not questioned on behalf of the Plaintiff-Appellant. Defendant 5 and the legal representatives of the deceased Defendant 4 (Defendants 7 to 14) would thus be entitled to get the value of improvements effected by them. Such value has been ascertained and fixed by the Commissioner in Ex. XV at Rs. 49867 chs. 25-13 cash for the improvements over the properties comprised in the compromise decree in O. S. 9 of 1092 and at its. 1,21,414-chs-13-cash for the improvements effected upon the remaining part of the properties. The price of redemption is thus the aforesaid two amounts plus Rs. 13, 6l73/4 paid by Defendants 5 to the Government for getting the registry of the properties pursuant to the compromise decree in O. S. 9 of 1042 (Ex. K). This is over and above the amounts of Rs. 500 and Rs. 300 and interest being the amounts of mortgage and puravaippa as per Exs. B and C respectively. The puravaippa (Ex. C) is a subsequent simple mortgage of the equity of redemption of the properties already mortgaged with possession under Ex. B. The amounts of principal and interest are made a charge over the equity of redemption. There is a covenant for personal payment of the principal and interest. Whether a possessory mortgagee can resist redemption of that mortgage and insist upon payment not merely of the amounts due under the mortgage, but of an independent subsequent simple mortgage of the equity of redemption is a question that does not arise and is not decided in this case as the Plaintiff offers to pay the amounts due under the subsequent simple mortgage also and seeks redemption of the properties from liability under that mortgage as well.

The learned Counsel for the Appellant contended that Defendants 4 and 5 have committed waste upon the properties by cutting and removing certain Anjili (antocarpus hirsuta) trees on the eve of the suit. The report of the Commissioner relied upon in this connection would probabilise the case of the contesting Defendants that the cutting was not a waste but was merely a process in the work of improvement. Cutting timber and clearing the ground for purposes of improvement would not constitute waste. The Plaintiff would be entitled to the value of the trees cut, had they been proved to belong to him, i.e., to have existed before his predecessor-in-title parted with possession of the properties. There is no such evidence in the case and therefore the Plaintiff has not made out a case for getting any compensation from the Defendant. In the result the appeal is allowed in part. There will be a decree as sued for redemption of the plaint properties with an extent of 302 acres, 96 cents as shown in the Commissioner''s plan (Ex. 14) with all improvements thereon as shown in the Commissioner''s report, mahazan and lists (Exs. 15,16 and 17 series) on payment by the Plaintiff into Court of Rs. 1,70,782 chs-16-6 cash towards value of improvements, Rs. 13, 6173/4 by way of the amount spent by Defendant 6 for getting the puduval registry pursuant to the compromise decree in O. S. 9 of 1092 as also the amounts covered by Exs. B and C.

The contesting Defendants also claim payment of the costs incurred in O. S. 9 of 1092 as a part of the price of redemption. There is no evidence in this case as to the costs and the claim is, therefore, disallowed.

Mr. Paikaday also raised a contention that improvements having been valued in the year 1106 and many years having elapsed thereafter, the improvements have to be valued afresh before fixing the price of redemption. Mere lapse of time would not be a ground for a revaluation. There may be circumstances justifying or necessitating a revaluation in certain cases, but no such circumstance has been pointed out and the request for revaluation cannot therefore, be allowed.

The appeal being one filed in forma pauperis the Appellant is ordered to pay the proper amount of court fee to the Government.

In the circumstances of the case parties will bear their respective costs throughout.

Kunhi Raman, C.J.

I agree.

Koshi, J.

I also agree.