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Judgment
Krishnamoohthy Iyer, J.—Plaintiffs 1, 3 to 5 and 7 who are the appellants, filed the suit for declaration of their title and recovery of possession of the plaint schedule items The facts alleged in the plaint and necessary to decide the questions raised in the appeal and the memorandum of objections are stated here.
The plaint properties belonged to Parayampurath tarwad. In the tarwad partition '' Ext. P-l in 1088, the plaint properties were allotted to the share of Narayana Kartha who executed a will Ext. D-3 dated 7-2-1092. By Ext. D-3. the properties were Riven for life to three persons who constituted the second lavazhi in Ext P-l and after the death of the last of them, the properties were allotted to the members of the third tavazhi in Ext P-l without any right of alienation. The last surviving member of the second tavazhi Kunjan Kartha executed Ext. D-13 dated 3-3-1114 in respect of the plaint items in favour of the father of the first defendant. Kunjan Kartha died on 14-12-1129. The plaintiffs who are members of the third tavazhi in Ext P-l filed the suit for recovery of the plaint items claiming title under Ext. D-3.
The first defendant contended that Ext, D-3 conferred an absolute right in the plaint items in favour of the members of the second tavazhi. that Ext. D-13 is valid and in case recovery is ordered he should be awarded value for the improvements effected by the members of the second tavazhi in Ext. P-l. by him and his father in the plaint items.
The trial Court held that under Ext. D-3 the members of the second tavazhi got only a right of enjoyment over the plaint items for their lifetime, that Ext. D-13 is not binding on the plaintiffs and that the first defendant is not entitled to claim any compensation for improvements effected in the plaint items and decreed the suit. The appellate Judge modified the decree of the trial Court to the extent of awarding the first defendant Rs. 4,000 towards value of improvements and confirmed the decree in other respects.
In second appeal, the sole contention of the plaintiffs relates to the right of the first defendant to claim the value of improvements. The first defendant has filed a memorandum of objections objecting to the decrees of the Courts below granting recovery of possession to the plaintiffs on the ground that under Ext. D-3, the members of the second tavazhi under Ext. P-l, were granted absolute right.
We shall dispose of the ground raised in the memorandum of objections first. The words of disposition in Ext. D-3 are in these terms:
(Words of disposition in Malyalam language are omitted--Ed.)
From the above passage, It is clear that the members of the second tavazhi were given only a right of enjoyment of the plaint items during their lifetime. We therefore agree with the findings of the Courts below on this aspect and hold that the cross-objection is without any substance.
This takes us to the point raised by the appellants whether a person or tavazhi getting a property after a life-estate, is bound to pay value of improvements to the life tenant Or his alienee before recovering possession. The trial Court considered the claim of the first defendant to compensation for improvements u/s 51 of the Transfer of Property Act and held against him on the ground that the vendee under Ext. D-18 and the first defendant knew that the members of the second tavazhi had only a life interest in the properties The lower appellate Court allowed the claim of the first defendant holding that he is a tenant within the meaning of Section 2 (d) (iii) of the Kerala Compensation for Tenants Improvements Act, 1958 (Act 29 of 1958) and he is therefore entitled to compensation for improvements u/s 4 of the Act.
The compensation of Rs. 4,000 awarded to the first defendant by the appellate Court includes the value for improvements made in the property by the members of the second tavazhi in Ext P-l prior to Ext D-13. The value for improvements effected after the date of Ext D-13 comes to Rs 850-10-8.
The claim of the first defendant for compensation for improvements cannot be sustained u/s 51 of the Transfer of Property Act. which reads thus:
"When the transferee of Immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any 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 amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free Ingress and egress to gather and carry them.".
This section has no doubt been the subject of several decided cases. The scope of the section is limited in its application to transferees who in good faith believe them-selves to be absolutely entitled to the property. Two conditions must be satisfied before the benefit u/s 81 can be attracted. They are:
(a) that the person evicted is a transferee; and
(b) he must have made the improvements believing in good faith that he was absolutely entitled to immovable property by virtue of which he had the authority to make improvements.
The words "believing in good faith that he is absolutely entitled thereto" are the Important words in the Section and generally the mortgagees in possession, lessees and other persons not having an absolute title are not entitled to claim the benefit of the Section. The maxim which is found in English law, namely quicquid plantatur solo, solo credit (whatever is affixed to the soil belongs to the soil) does not apply to India. Sir Barnes Peacock in Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee. (1866) 6 Suth WR 228 observed:
"We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself
xx xx xx xx xx
We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil --the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess."
Lord Cranworth, L. C. observed in Ramsden v. Dyson. (1866) 1 HL 129 140:
"If a stranger begins to build on my land supposing it to be his own and 1 perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest In me to remain wilfully passive on such an occasion. In order afterwards to profit by the mistake which I might have prevented.
But it wilt be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and secondly, that the real owner at the time of the expenditure knows that the land belong to him and not to the person expending the money in the belief that he is the owner. For If a stranger builds on my land knowing is to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure, made on it. There would be nothing in my conduct, active or passive making it inequitable in me to assert my legal rights." In order to entitle an occupant of land to claim compensation for improvements, as a general rule, three things are necessary: (1) he must have held possession under colour of title, (2) his possession must not have been by mere permission of another but adverse to the title of the true owner and (3) he must be under the honest belief that he has secured good title to the property in question and is the owner thereof. Section 51 of the Transfer of Property Act gives only statutory recognition to the above principles. It was held in Meenatchi Animal v. Manicka Ghetty 24 Ind. Cas. 918: AIR 1916 Mad 263 that Section 61 is not applicable to improvements made by the transferor and when a purchaser from a Hindu widow is evicted by the reversioner he cannot claim compensation for improvements made by the widow. In view of this decision it has to be held the first defendant is not entitled to claim compensation for improvements effected in the property prior to the date of Ext. D-13.
The question whether a remainderman can be made liable for the improvements effected by the alienee of a life tenant was decided by Mookerjee, J. in Kandarpa Nath Ghose v. Jogondra Nath Bose. 12 Cal LJ 391 at p. 398 in the following words:
"As a general rule, improvements made on property by a life tenant thereof, attach to the estate and pass to the reversioner or remainderman, at the expiration of the life-estate, without any liability on his part to make compensation therefor. The same is true of improvements made by a purchaser from one who holds a limited interest, for it is presumed that such purchaser knows the title which he acquires The most satisfactory reason, which may be assigned in support of this position, is that the life tenant or one holding through or under him does not hold in any way adversely to the remainderman or reversioner, and, therefore, must be held to have made such improvements merely with the view of enjoying them so long as the life estate continued, or to have intended them to be for the benefit of the remainder-man."
As was held by their Lordships of the Supreme Court in R.S. Madanappa and Others Vs. Chandramma and Another, "no man who, knowing fully well that he has no title to property, spends money on improving it can be permitted to deprive the original owner of his right to possession of the properly except upon the payment for the improvements which were not effected with the consent of that person.'' Section 51 cannot apply to a transferee of a life tenant as the latter could not convey a better title to the transferee.
There is also nothing in the case to show that the first defendant or his father believed in good faith that Ext. D-I3 gave the latter absolute title to the property. Ext. D-13 purported to transfer to the father of the first defendant only those rights which Narayana Kartha had under Ext. D-3. In the circumstances of this case, in the absence of any evidence, it has to be presumed that the father of the first defendant knew at the time of Ext. D-13 that his transferor had only a life interest in the properly and that he could not transfer any better title to him. Neither the first defendant nor his father can therefore be considered to be a transferee believing in good faith that he is absolutely entitled to the property when the improvement were effected.
We do not therefore think that there is any possible scope for the application of Section 51 of the Transfer of Properly Act.
The claim of the first defendant based on the provisions of Act 29 of 1958, hereinafter referred to as the Act, has next to be considered. It was contended by the learned advocate for the first defendant, that his client is a tenant within the meaning of Section 2 (d) (iii) of the Act.
Section 2 (d) of the Act defines "tenant" thus:
"2. In this Act, unless the context other-wist; requires,--
(a) .. .. .... ...... .. ...... ..
(b) ...........................
(c) .......... .. .... .... ..
(d) ''tenant with its grammatical variations and cognate expressions includes
(i) a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee, or sub-mortgager of land, is in possession thereof:
(ii) a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let wasteland, but without the permission of such per-son, brings such land, and/or cultivation and Is in occupation thereof as cultivator; and
(iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that be is entitled to make such improvements."
To hold that the first defendant is a tenant within the meaning of Clause(iii) above, he must be a person who came into possession of land belonging to another person. We take the view, that the first defendant being a transferee from Kunjan Kartha a life tenant cannot be considered to be in possession of the property belonging to another person during the lifetime of the transferor A similar question came up for consideration in Sankara Pillai Narayana Pillai v. Kutty Amnia Gomathv Amma, 1965 Ker U 613 where Madhavan Nair, J. observed at p. 615 in these terms:
"For a person to come within the 3rd category in the above definition (Section 2 (d) ) he must be in possession of ''land belonging to another'' I am afraid that when a particular property is given to one for life and to another in remainder, neither can be said to have a title superior to the other, and therefore the property cannot he said to belong to one in preference to the other. The property can only be said to belong to both--to the former for his life and then to the latter. It will be quite incorrect to say that the holder of a life-interest holds the land in his own unchallengeable right. That right may die with him; but in his hands it is an indefeasible right. None can determine his right. In my opinion, a person to whom a property is given for his life cannot be said to be a tenant within the definition of the Act XXIX of 1958." We are in entire agreement with the above observations made by the learned Judge. But the learned advocate for the first defendant relied on the decision in Veerasikku Gounder v. K. Kurian, 1960 Ker U 326 where a division bench of this Court held in these terms:
"It is significant In note that the person coming under Sub-clause (iii) need not be one in the position of a lessee, sub-lessee, mortgagee or sub-mortgagee. He need not also be enlertaining a bona fide intention of attorning and paying reasonable rent to the person entitled to enjoy the land. In fact, Sub-clause (iii) stands by itself unconnected with and independent of Sub-clauses (i) and (ii) ... . .No doubt one of the conditions to be satisfied for invoking the aid of Sub-clause (iii) is that the person concerned must have come into possession of land belonging to another person The other condition is that he must have made improvements on the land in the bona fide belief that he is entitled to make such improvements "
The dictum laid down in the above decision docs not in any way run counter to the dictum laid down by the learned single Judge in 1966 Ker LJ 613 or the view that we are taking in this appeal. The question that arose for consideration in 1960 KLJ 326 was whether a person who came into possession of land covered by a Court auction or a private sale can be said to be a person taking possession of the land belonging to himself if ultimately the sale is held to be a void sale The said question does not arise for consideration in (he second appeal before us and it is unnecessary for us to express our views on that question. But the learned Judge also took the view that one of the conditions necessary for Invoking the aid of Clause (iii) to Section 2 (d) is that the person concerned must have come into possession of the land belonging to another A transferee of property from a life tenant is in possession of the property not belonging to another as the entire rights of the life tenant were transferred to the transferee and he is in possession of the land as belonging to himself. It is not the case of the first defendant that any improvements were effected by him in the property after the death of the life tenant and that he should be paid the value for the same. It is therefore unnecessary to consider the claim for improvements of a transferee of a life tenant after the death of the life tenant as against the remainderman or the reversioner. In the result, the decree and judgment of the lower appellate Court are set aside and that of the trial Court restored. The second appeal is thus allowed with costs both here and ID the lower appellate Court.