JUDGMENT
Usha, J.
1. This appeal has come up before the Full Bench in view of the conflict between two Bench decisions of this Court, namely, Veerasikku Gounder v. Korah Kurian, 1960 Ker LT 213 and Moideenkutty v. Subhadra, 1966 Ker
LT 1125. The issue involed is whether a transferee under a void document would come within the definition of ‘tenant’ in Section 2(d)(iii) of Kerala Compensation for Tenants Improvements Act 29 of 1958 and can claim compensation for the improvements made by him on the property. In 1960 Ker LT 213, it was held that the transferee who had to surrender possession of the property on finding that the document under which he acquired title to the property was to be set aside would come within the definition of ‘tenant’. Any improvements effected by him on the land covered by the sale must be taken to have been effectd by him in the bona fide belief that he is entitled to make such improvements because of the existence of the sale in his favour. In 1966 Ker LT 1125 supra, it was held that a purchaser of a property from a person who had no title to it whatsoever cannot be consisdered to be a person who has made any purchase whatsoever. Therefore, he will not come within the expression ‘tenant’ in Section 2(d)(iii) of the Kerala Compensation for Tenants Improvements Act 29 fo 1958. Learned single Judge who referred the matter for consideration of a Larger Bench expressed his view in favour of the first decision. But, the Division Bench, which referred the matter, has not expressed any view at all.
2. The second appeal is at the instance of the 3rd defendant in O.S. 236/83 of the file of the Court of Munsiff, Pala. Repsondents to 3 are the plaintiffs and respondents 4 to 6 are defendants 1, 2 and 4 respectively in the suit. Plaintiffs contended that they, along with their mother, 4th defendant, acquired 39 1/2 cents of property under a sale deed No. 1723/70 and were enjoing the same jointly. While so, 4th defendant-mother sold the properties under sale deed No. 1734/75 dated 17-7-1975 to the 1st defendant who, in turn, transferred the property under a sale deed of the year 1977 to the 2nd defendant. 3rd defendant-appellant acquired the property from the 2nd defendant under a sale deed of the year 1982. When the 4th defendant executed sale deed in favour of the 1st defendant, plaintiffs were minors. Plaintiffs contended that the sale deed executed by their mother, 4th defendant as their guardian is void in law. There was no necessity at that time to alienate the property. No consideration was passed from the vendee and no property was acquired in their favour, in spite of a recital to
that effect in the sale deed. Defendants 1 and 2 and 4 remained ex parte. 3rd defendant filed written statement and contended that he was a bona fide purchaser from the 2nd defendant, sale deed of the year 1975 in favour of the 1st defendant was supported by consideration and that the sale deed is binding on the plaintiffs and 4th defendant.
3. Trial Court as well as First Appellate Court found that Ext. A1 sale deed 17-7-1985 executed by the 4th respondent on her behalf as also as guardian of the plaintiffs is void in law in view of the provisions contained under the Hindu Minority and Guardianship Act, 1956, to the extent it covered the interest of the plaintiffs. Trial Court granted a preliminary decree for partition declaring plaintiffs’ 3/4th share over the property and allowing them to have their share separated together with future profits which would be assessed in the final decree proceedings. 3rd defendant as allowed to take the improvements effect by him, in his share, without diminishing the share of the plaintiffs. We do not find any reason to interfere with the concurrent finding entered by the courts below on this issue.
4. Regarding the claim for value of improvements, trial Court took the view that the defendant cannot put forward claim under Section 51 of the Transfer of Property Act as he is not a bona fide purchaser as contemplated by the above provision. Lower appellate Court held that since the document under which the 1st defendant acquired title to the property is found to be void, the sale deed in favour of the 2nd defendant and 3rd defendant are also void and therefore, the 3rd defendant can be treated only as a trespasser, in which case he is not at all entitled to get any value of improvements. Appellate Court affirmed the decree passed by the trial Court. There is no discussion with reference to Section 51 of the T.P. Act or the provisions of Kerala Compensation for Tenants Improvements Act.
5. Admittedly, the predecessors-in-interest of the appellant, namely, the 1st and 2nd defendants had made improvements in the property. Appellant would contend that he is entitled to claim compensation for the value of such improvements as he would come within the definition of ‘tenant’ under the Kerala Compensation for Tenants Improvments Act, 1958. The relevant portion of the definition reads as follows :
“2(d) Tenant–“tenant” with its grammatical variations and cognate expression includes –(iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements.”
A reading of the above provision would show that in order to come under Clause (iii), two requirements are to be satisfied : (1) He must have come into possession of land belonging to another. (2) He must have made improvements thereon bona fide believing that he is entitled to make such impovements. In this case, there is not dispute that the appellant satisfies the first condition. The only other question to be considered is whether the predecessors in interest of the appellant had made improvements on the property bona fide believing that he was entitled to make improvements.
6. It was contended by the learned counsel for the respondent that the predecessors-in-interest of the appellant could not have bona fide believed that they were entitled to make the improvements, It was specifically referred in Ext. A1 document that the property belonged partly to the minors. ‘The fact that B shedule property is offered as indemnity should have alerted the appellant’s predecessors-in-interest to the defect in title that was being transferred to them.
7. There is no averment in the plaint that there was any collusion between the 1st defendant and the plaintiffs’ mother 4th defendant in execution of Ext. A1 sale deed. There is also no case that defendants 1 and 2 were aware of any defect in title and therefore, it is not a case where improvements were made by them bona fide believing that they are entitled to make such improvements, the recitals in Ext. A1 would show that the property was originally acquired by the plaintiffs along with their mother. This is not a ease where the executant of the document had no title to the property at all. The sale deed had to be declared void since it was executed in violation of Section 8 of the Hindu Minority and Guardianship Act. It cannot be contended that defendants 1 and 2 made the improvements with the knowledge that they have no legal right in the property. Reliance made by learned counsel for the respondent on a decision of the Supreme Court in R. S. Maddanappa v. Chandramma, AIR 1965 SC 1812 has no application to the present
case. It was a case which arose under Section 51
of the Transfer of Property Act. The plaintiff in
that case contended that the suit property was the
absolute property of her mother being her
Sthreedhanam property and on her death it
devolved on the daughters. Father and sons had
no right in the property. When a claim was put
forward for value of improvements made by the
father, Supreme Court took the view that the
appellant was in enjoyment of the property after
his wife’s death, though, he was fully aware of
the fact that the property belonged to her
daughters. No man who is knowing fully well
that he has no title to the property, spends money
on improving it, can be permitted to deprive the
original owner of his right to possession of the
property, except upon the payment of
improvements which were not affected with the
consent of that person. We do not think the
appellant in the abovementioned case part be
compared to defendants 1 and 2 in the present
case.
8. The provisions contained under Section 4 of the Kerala Compensation for Tenants Improvements Act, 1958 would enable the subsequent transferee also to claim compensation for the imporvements made by his predecessor in interest. Therefore, if defendants 1 and 2 have made improvements bona fide believing that they were entitled to make such improvements, it is within the right of the appellant to claim compensation for value of such improvments.
9. In 1960 Ker LT 213 supra, claim for value of improvements was put forward by transferee of certain properties sale deeds in respect of which were set aside under a decree in a civil suit. Whiel considering the claim as a ‘tenant’ coming under Section 2(b)(iii), their Lordships observed as follows :
“…….. 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 entiled to make such improvements. A person who comes into possession of land covered by a Court auction or a private sale, need not necessarily be taking possession of the land belonging to himself. The question whether he is taking possession of the land belonging to himself or to another person, will necessarily depend upon the nature of the sale in question. The sale may be a valid sale, or it may be a void or viodable sale. If it is a valid sale, then it is clear that the vendee will be taking possession of the property belonging to him by virtue of the sale. If the sale is a void sale, the vendee does not become the owner of the property and it cannot be said that he will be taking possesion of the property belonging to himself. The property will still belong to the real owner in spite of the void sale. The position is not in any way different in the case of a voidable sale so long as the right to avoid the sale is available to those who are entitled to exercise that right. If that right is exercised by them and the sale is avoided, such avoidance takes effect from the date of the sale and the vendee cannot tit such a siutation be held to have been in possession of the land belonging to himself. On the other hand, he must be deemed to have been in possession of the land under another person who continued to be the real owner of the property in spite of the voidable sale which had come into existence. A vendee who has to surrender possession of the property in such circumstances must certainly be a tenant within the meaning of Sub-clause (iii) of clause (d) of Section 2 of Act XXIX of 1958. Any improvements effected by him on the land covered by the sale must be taken to have been effected by him in the bona fide belief that he is entitled to make such improvements because of the existence of the sale in his favour.”
We find that the facts of the case decided in 1966 Ker LT 1125 were entirely different. In that case, the suit was filed contending that the suit property belonged to the plaintiffs mother as Sthridhanam properties and on the death of the mother, the properties would devolve on the plaintiff and her two sisters. The contention was that neither her father nor her brothers have any right or title to the properties left by her mother The suit was decreed. A contention was taken on behalf of the assignee from the father that he had made, valuable improvements and therefore entitled to claim compensation as a tenant coming under Clause (iii) of Section 2(d) of the Kerala Compensation for Tenants Improvement Act 1958. The father and brothers of the plaintiffs were dealing with the properties. The claim for compensation was rejected. It was found that the father when he executed the document, did not
recognise the title of his daughters, but, on the other hand, he assumed that they are owned by him and his sons. The Court took the view that when a person like the appellant chooses to take a transaction from a person who has no title to it whatsover, he cannot be considered to be a person who has made any purchase whatsoever and therefore, he would not come within the definition of the expression ‘tenant’ in Section 2(d)(iii) of the Kerala Compensation for Tenants Improvements Act. The Division Bench distinguished 1960 Ker LT 213.
10. We are in respectful agreeement with the view taken in 1960 Ker LT 213 supra. Whatever be the reason for avoiding a sale deed whether as a document which is voidable at the instance of one of the parties or as a document which was inherentlly void due to any defend in the title or lack of title at all of the transferor or due to any other vitiating factor like the one in the present case, the transferee will be a person who have come into possession of the land belonging to another pursuant to the transaction. While making improvements thereon, whether he was labouring under a bona fide belief that he is entitled to do so, is a matter to be decided on the facts of each case. While deciding that issue, the reasons for avoiding the sale deed either as a void one or as a voidable one may be relevant. But, it cannot be held that in all cases where a transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document, will not be entitled to claim compensation for value of the improvements as a tenant coming under Clause (iii). We are therefore, of the view that 1966 Ker LT 1125 has not laid down the correct law.
11. Now, coming back to the facts of this case, we find that the appellant is entitled to claim compensation for the value of improvements made by his predecessors-in-interest as a ‘tenant’ coming under Section 2(d)(iii) of the Act. Arguments were addressed by both sides on the claim made by the appellant under Section 51 of the T.P. Act. Several decisions were also cited by both sides. But, since we are taking the view that the appellant is entitled to claim compensation under the provisions of the Kerala Compensation for Tenants Improvements Act, we do not propose to go into the question whether he is entitled to claim the benefit of Section 51 of the T.P. Act. The judgment and decree of the Courts below are
modified to the extent that the finding entered against the appellant that he is not entitled to compensation for the value of improvements made by his predecessors-in-interest in the property is set aside. The actual amount of compensation due to the appellant will be computed in final decree proceedings. Appeal stands allowed as above. No costs.