T.K. Joseph, J.@mdashThis second appeal which arises out of a suit for redemption of a mortgage was referred to a Division Bench by the
following order :
It seems to me that the observations in ILR 1959 Ker 1203 go against the appellant. My attention was also drawn, to C.R.P. 342/58 in which a
Full Bench of this Court allowed the claim for improvement to be tried though the decree for redemption was treated as final. I therefore refer this
case to a D.B. for disposal.
The Division Bench which heard the case considered it a fit case for reference to a Full Bench, and it has accordingly come before us.
The controversy to the suit related to the price of redemption. The first defendant-appellant claimed, in addition to; the mortgage money,
compensation for improvements and re-imbursement of amounts expended by him for protection and preservation of the property including a sum
of Rs. 75-10-7 paid towards jenmikaram. The trial court decreed redemption on payment of the mortgage money and a sum of Rs. 1,106-9-4 on
account of compensation for improvements. The plaintiff preferred an appeal to the District Court claiming reduction of the sum awarded as
compensation and the first defendant preferred a memorandum of cross-objections which was originally confined to the claim for jenmikaram
disallowed by the trial court. During the pendency of the appeal in the District Court the Travancore-Cochin Compensation for Tenants
Improvements Act X of 1956, was passed and the defendant obtained an order for amendment of the memorandum of cross-objections so as to
include a prayer for reassessment of the improvements. The District Court reduced the sum awarded as compensation for improvements by Rs.
87-7-6 and awarded Rs. 75-10-7 to the first defendant towards jenmikaram paid by him. The claim for reassessment of improvements was
disallowed on the ground that the first defendant had surrendered possession of the property before Act X of 1956 was passed and that he was
not, therefore, a ''tenant'' as defined in the Act. The first defendant has preferred this second appeal from this decree and the plaintiff-respondent
has filed a memorandum of cross-objections regarding the sum of Rs. 75-10-7 awarded to the first defendant.
2. The point for decision is whether the first defendant is entitled to claim reassessment of improvements under Act X of 1956. The decision of our
learned brother Vaidialingam J. in Kadambalithaya v. Beepathumma (I.L.R. 1959 Ker 1203 = 1959 K.L.J. 1202) supports the decision of the
court below. It was urged that the view taken in the above case is too wide and is not in conformity with the decision of a Full Bench of this Court
in C.R.P. No. 342 of 1958. The contention of the appellant is that at least in those cases where the mortgagee would be entitled to redelivery of
property taken delivery of in execution of the decree of the trial court which is varied or reversed in appeal, the view taken in Kadambalithaya v.
Beepathumma (I.L.R. 1959 Ker 1203 = 1959 K.L.J. 1202) cannot apply. On the facts of this case it is unnecessary to examine this question as
the first defendant would not have been entitled to redelivery of property even if the decree of the trial court had been modified in the appeal. The
decree of the trial court was passed on 7th January 1956, and when the first defendant received notice of the decree-holder''s application for
delivery of possession, he filed C.M.P. 2574 of 1956 in the execution court stating that he was surrendering possession of the property, that he
had claimed in appeal an additional sum on account of jenmikaram paid by him and that in case the said claim was upheld, he would be satisfied
with a decree for recovery of the same from the plaintiff. It is therefore clear that he had voluntarily surrendered possession of the property
although he had claimed an additional amount in appeal. This was before the commencement of Act X of 1956. Having thus surrendered
possession, the first defendant cannot be brought within the definition of ''tenant'' in the Act. It is therefore unnecessary to consider the question
whether the decision in Kadambalithaya v. Beepathamma (1959 KLT 1089 = 1959 K.L.J. 1202) would apply to all cases pending in appeal
when Act X of 1956 became law. There remains the memorandum of cross-objections filed by the plaintiff respondent regarding the decree
awarding Rs. 75-10-7 to the first defendant. As observed by the lower appellate court the mortgagee was not bound to pay jenmikaram under the
deed of mortgage and he is entitled to reimbursement of the same. The memorandum of cross objections must therefore be dismissed.
In the result the appeal and the memorandum of cross-objections are both dismissed, but in the circumstances without costs.