mortgagee in possession cannot be permitted to lay money in increasing the value of the land
Citation
CDJ 2010 MHC 3024
Selvaraju Kounder vs vadivel Pillai and others
Head Note
Civil Procedure Code - Section 100 - Transfer of Property Act - Section 63A - Original mortgagor one Kulandaivel Pillai, son of Arumugam Pillai after having executed the usufructuary mortgage in favour of the Defendant died later leaving behind him his wife and three daughters viz. Mangalakshmi and Malliga, Mala and Geetha respectively - Plaintiff purchased the suit properties from Mangalakshmi for a valid consideration of Rs.400/- with a direction to discharge the mortgage of Rs.600/- in favour of the Defendant and Plaintiff has agreed to discharge the same - Plaintiff obtained release deed from the daughters of the mortgagor on 29.7.1997 and thereby all the heirs of the mortgagor had parted away the rights in the mortgaged property and as such, Plaintiff is entitled to redeem the property mortgaged - The Plaintiff after the sale deed in his favour called upon the Defendant to agree for the redemption after the receipt of the amount, to which he did not give a proper reply - Plaintiff issued a notice on 19.3.1997 expressing his readiness to redeem the property mortgaged and Defendant has evaded the receipt of the notice - Plaintiff deposited a sum of Rs.600/- in the court being the amount due and as such, he is entitled to claim mesne profits, as the possession of the Defendant is that of a trespasser since the date of deposit - Hence suit has been filed for redemption of the mortgaged property with profits and costs - Trial Court decreed the suit and appeal filed by Defendant was dismissed by the lower Appellate Court - Hence second appeal has been filed by the Defendant.
Court held - courts below have clearly held that there is no evidence let in by the Appellant/Defendant clinching the point relating to the construction put up by him and the expenses incurred and also not filed any accounts to show any such expenditure incurred by him for putting up construction - Appellant has not shown anything in support of his contention that he has made construction with the permission of the Respondent which consequently enables him to recover the amount spent by him before the mortgaged property could be redeemed - Even assuming that Respondent had not objected to the Appellant constructing a house on the vacant site, it cannot be considered as an improvement necessary for the preservation of the land - There is no indication in the evidence adduced that he had made the construction as it was necessary to preserve the property from destruction or deterioration - mortgagee in possession cannot be permitted to lay money in increasing the value of the land except in circumstances which strictly fall within the corners of the Section 63A of the Act - claim of the Appellant/defendant has been rightly rejected by the court below - Second Appeal dismissed.
Cases Referred:
Sundram Ayyar Vs. Valia Mannadiar [59-LW-614]
Comparative Citations:
2010 (3) LW 72, 2010 (2) MWN(Civil) 143
Court held - courts below have clearly held that there is no evidence let in by the Appellant/Defendant clinching the point relating to the construction put up by him and the expenses incurred and also not filed any accounts to show any such expenditure incurred by him for putting up construction - Appellant has not shown anything in support of his contention that he has made construction with the permission of the Respondent which consequently enables him to recover the amount spent by him before the mortgaged property could be redeemed - Even assuming that Respondent had not objected to the Appellant constructing a house on the vacant site, it cannot be considered as an improvement necessary for the preservation of the land - There is no indication in the evidence adduced that he had made the construction as it was necessary to preserve the property from destruction or deterioration - mortgagee in possession cannot be permitted to lay money in increasing the value of the land except in circumstances which strictly fall within the corners of the Section 63A of the Act - claim of the Appellant/defendant has been rightly rejected by the court below - Second Appeal dismissed.
Cases Referred:
Sundram Ayyar Vs. Valia Mannadiar [59-LW-614]
Comparative Citations:
2010 (3) LW 72, 2010 (2) MWN(Civil) 143
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