Ummini Vasavan vs Vairavan Saraswathi

M. Madhavan Nair, J.—The appellant is the 2nd defendant in a decree for redemption, which relegated assessment of compensation for improvements to execution. The decree-holder, applying for execution, moved for a commission to assess improvements. Two items only in the commissioner''s report form the subject matter of this appeal: the first is a drain across the mortgaged property, of which the cost is estimated by the commissioner at Rs. 500/-, But the time of opening could not be assessed by him; and the second 94 coconut palms and 10 jack-trees extant at the time of the mortgage for which the Commissioner assessed compensation u/s 11 of the Kerala Compensation for Tenants Improvements Act, XXIX of 1958--hereinafter ''the Act''--read along with the table published by the Government u/s 13(1)(b)(iii) of the Act (Vide 1961 KLT (Rules & Notifications) 138). The Courts below concurred to negative compensation for both these items. Hence this second appeal. The primary burden to prove existence of improvement on the property in possession of the mortgagee, for which compensation is due to him, is on the mortgagee. Mere presence of a drain across the land, without proof that it is a work of the mortgagee beneficial to the property, will not show it to be an item of improvement. The mortgagee has given no evidence in this regard. As observed by the Privy Council in Radha Krishnan v. Khrushed Hossein (A.I.R. 1920 P.C. 81, 83), "of things that do not appear and things that do not exist the reckoning in a Court of law is the same". Things not proved have therefore to be taken as non-existent for purposes of adjudication. Further, the observation of the Courts below, that the name of the property as "Ovuthalachal purayidom"--''Ovu'' and ''Chal'' both denote a channel in vernacular -- is indicative of a drainage channel in the property even before the land registration, appears right. The Courts below were therefore justified in not awarding cost of the drain to the mortgagee.

As regards the coconut palms and jack trees extant on the property at the time of the mortgage: The following sections of the Act have to be read:

Definitions.--In this Act, unless the context otherwise require,--

(a)..........

(b) ''improvement'' means any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding is let, mortgaged or occupied, but does not include such clearances, embankments, levellings, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary course of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry;

What are presumed to be improvements:--Until the contrary is shown, the following works or the products of such works shall be presumed to be improvements for the purposes of this Act:--

(a) the erection of dwelling houses, buildings appurtenant thereto and farm buildings;

(b) the construction of tanks, wells, channels, dams, and other works for the storage or supply of water for agricultural or domestic purposes;

(c) the preparation of land for irrigation;

(d) the conversion of one-crop into two-crop land:

(e) the drainage, reclamation from rivers or other waters or protection from floods or from erosion or other damage by water, of land used for agricultural purposes, or of waste land which is cultivable;

(f) the reclamation, clearance, enclosure or permanent improvement of land for agricultural purposes;

(g) the renewal or reconstruction of any of the foregoing works or alterations therein or additions thereto: and

(h) the planting or protection and maintenance of fruit trees, timber trees and other useful trees and plants.

Other kin Is of improvements.--When the improvement is not an improvement to which sub-section (1) of Section 7 or Section 8 applies, the compensation to be awarded shall be the cost of the labour including supervision thereof and of the materials together with other expenditure, if any, which would at the time of the valuation, be required to make the improvement, less a reasonable deduction on account of the deterioration, if any, which may have taken place from age or other cause.

Improvement consisting in protection and maintenance of trees and plants:--When the improvement consists in the protection and maintenance of timber or fruit trees or of other useful trees or plants not sown or planted by any of the persons mentioned in section 4 or of such trees or plants spontaneously grown prior to the commencement of the tenancy, the compensation to be awarded shall be the proper cost of such protection and maintenance ascertained as provided in section 9.

Power to prepare tables of prices of produce etc:--(1) For the purpose of determining the amount of compensation to be allowed under this Act, the Government may prepare tables for the whole or any part of the State showing all or any of the following matters:--

(a) the price of coconuts, arecanuts, pepper and paddy;

(b) the cost of--

(i) ..........

(ii) ..........

(iii) protecting and maintaining a coconut tree, an arecanut tree, a jack tree, a mango tree, such other tree as may be notified by the Government from time to time and a pepper vine for one year when in bearing.

Counsel for appellant contends that u/s 11 the mortgagee is entitled to cost of protection and maintenance of the coconut palms and the jack-trees since the date of the mortgage according to the table published u/s 13(1)(b)(iii) of the Act.

Section 11 opens with the expression "When the improvement consists in the protection and maintenance of timber or fruit trees". So, the first requisite is that the item for which compensation is claimed must be an improvement. By the definition in Section 2(b) of the Act ''improvement'' is any work or product of a work which adds to the value of the holding and "does not include......benefit accruing to the land from the ordinary operations of husbandry. The purpose of a definition clause in an Act is to read the definition wherever the expression defined occurs in the Act (unless the definition is inconsistent with the provision in the section or renders the provision of the section absurd), When Section 11 is read along with the definition of improvement in Section 2(b) it becomes clear that the protection and maintenance mentioned in Section 11 should not be ordinary operations of husbandry, but must be something outside it.

Under the law of mortgage embodied in Section 76 of the Transfer of Property Act,

When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,--

(a) he must manage the property as a person of ordinary prudence would manage if it were his own;

.......

If the mortgagee fail to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure.

It is the imperative duty of a mortgagee to manage the mortgaged properly as a man of ordinary prudence would manage his own property. Acts done in that way are reckoned as ''ordinary operations of husbandry'' and will not entitle the mortgagee to compensation at redemption. It follows that unless the work of protection and maintenance of trees is above or beyond ''ordinary operations of husbandry'', no compensation can be claimed therefor by a possessory mortgagee.

Counsel stressed the presumption embodied in Section 3 and urged that protection and maintenance of fruit trees has always to be reckoned as improvement for which compensation is payable, unless the redeemer proves the contrary. This construction of Section 3 does not appear correct. "It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them" (Sanjeevayya v. Election Tribunal, Andhra Pradesh--A.I.R. 1967 S.C. 1211, (sic)). Section 3 has therefore to be read along and consistently with Section 2(b) of the Act; it cannot be read in such a way as to render the exclusion of ordinary operations of husbandry meaningless. Section 2(b) defines improvement as "any work or the product of a work", and Section 3 enumerates several items of "works or the products of such works" that may presumably be improvements. Section 3 is thus a clarification or clarificatory categorisation, and not a supersession of the definition in Section 2(b). Reading Section 3 in harmony with Section 2(b), it is clear that a work enumerated in Section 3 cannot be reckoned as an improvement if it amounts only to an "ordinary operation of husbandry". Of course, the burden of showing any work mentioned in Section 3 and seen done in the mortgaged property to be ''ordinary operation of husbandry'' is laid on the person seeking redemption; but if the nature of the work done, is self-evident on the point that burden may well be taken as discharged. Thus, the construction of boundary bunds on the four sides of a paddy field to keep water for the wet cultivation therein, which is an ordinary operation of husbandry, cannot be an improvement within the meaning of Section 3(b) "the construction of other works for the storage of water for agricultural purposes". I am afraid that such a construction would be ridiculous. A mere transfer of possession under a mortgage of land-with-fruit-trees for appropriation of its yield cannot impose an obligation on the mortgagor to pay for the normal maintenance of the fruit trees thereon. It is not claimed that if mortgaged property is a paddy field the mortgagor has to pay the cultivation expenses incurred from season to season. Normal acts of protection-and-maintenance of the coconut palms and jack-trees in bearing stage are the clearest equivalent to normal acts of planting-and-maintenance of paddy plants in a field. In the words of Friedmann "words and concepts have no pre-established meaning. It varies according to context and purpose". (Legal Theory, 5th Edn., page 274). Ogden and Richards in The Meaning of Meaning have characterised words as "a special class of symbols used in thinking and communication" and said "Words receive meaning only by reference to an object or a situation in the real world" (which they called ''referent''). Pertinent then is the observation of the Supreme Court in Shahdara (Delhi) Saharanpur Light Railway Company, Ltd., v. Upper Doab Sugar Mills, Ltd. (A.I.R. 1960 S.C. 695, 701), "It is well-settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the Legislature should be presumed not to have intended the same". In the context of Section 11 the words "the protection and maintenance" have to bear a limited interpretation, limited by Section 2(b) of the Act itself.

Clause (h) of Section 3 of the Act includes two items of work--(i) the planting and maintenance, and (ii) the protection and maintenance, of fruit trees, timber trees and other useful trees and plants. It is pertinent to note that all the different works enumerated in Section 3, other than that in the latter part of clause (h) which is in question here, are special works of a lasting nature that are not ''ordinary operations of husbandry''. As the entire enumeration of works in Section 3 is of species in a genus, the work mentioned in the latter part of clause (h) "protection and maintenance of fruit trees, timber trees and other useful trees and plants" must also share the same characteristic, under the ejusdem generis principle, and therefore must not be an ''ordinary operation of husbandry'', but must be some special work beyond it.

Counsel for appellant argued that if such be the construction, there is no purpose in publishing a table of "the costs of protecting and maintaining a coconut tree, an arecanut tree, a jack tree, a mango tree, such other tree as may be notified by the Government from time to time and a pepper vine for one year in bearing" contemplated in Section 13(1)(b)(iii) of the Act. The answer to this argument appears simple. Compensation for coconut palms, areca palms, jack trees, mango trees and such other trees and pepper vines which are bearing is to be assessed u/s 7 and not u/s 13 of the Act. u/s 7 the criterion is "the annual net produce" of the property. Explanation I to that Section gives the meaning of ''net produce'' as the gross produce minus cost of cultivation and taxes; but the expression "cost of cultivation" is inept in the case of a garden full of bearing fruit trees like coconut palms, areca palms, jack trees, mango trees and such other trees and pepper vines which last for decades, unless it is given an extensive sense to include cost of normal protection and maintenance of lasting trees and plants. In the case of such trees and plants the net produce can only be, as generally understood, their gross produce minus the cost of their normal protection-and-maintenance--the expression ''protection-and-maintenance'' being understood, consistently with the context, as denoting only ordinary operations of husbandry by way of protecting and maintaining the trees or plants, for which alone general rates can possibly be notified by the Government. Precedents in Travancore used to allow one-fourth of the gross produce of fruit trees for such protection and maintenance. Cost of a special work by way of protection and maintenance, for example, a granite wall on the side of an erosive river, which may be an ''improvement'', must necessarily depend on the particularity of the work done and cannot therefore be prescribed by an anticipatory notification or at a common rate. The table published u/s 13(1)(b)(iii) is, like the table published u/s 13(1)(a), obviously for the purpose of ascertaining "the value of the annual net produce" of the fruit trees u/s 7, and not for the purpose of assessing compensation for those trees u/s 11 at the rates mentioned therein.

I am therefore definitely of opinion that any work by way of "protection and maintenance of fruit trees" on the mortgaged property, which is only an "ordinary operation of husbandry" does not call for any payment of compensation under the Act. As there is no proof, not even a claim, of any special work by way of protection and maintenance of the coconut palms and jack-trees that were on the property at the time of the mortgage, except of the mortgagee having kept them in existence and taken the yield thereof, the disallowance of compensation for their protection and maintenance by the Courts below appears well justified. Even if it be presumed that he has manured or watered them in the ordinary course of husbandry, he cannot claim compensation therefor. In the result, the second appeal fails and is dismissed. No order as to costs here.