IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16882 of 2006(I)
1. PRABHAVATHI, D/O.LATE PADMAVATHI AMMA,
... Petitioner
2. JAYAPRAKASAN, S/O.LATE PADMAVATHI AMMA,
3. MURALEEDHARAN, S/O.LATE PADMAVATHI AMMA,
Vs
1. K.T. PADMAVATHI AMMA, W/O.DAMODARA MENON
... Respondent
2. SANTHI, D/O. K.T.PADMAVATHI AMMA,
3. MURUKANANDAN, S/O.K.T.PADMAVATHI AMMA,
4. KRISHNAKUMAR,S/O.K.T.PADMAVATHI AMMA,
5. LAKSHMI DEVI, D/O.K.T.PADMAVATHI AMMA,
6. LEELAVATHI, D/O.AMMU @ GOURI AMMA,
7. KOMALAKUMARI, D/O.AMMU @ GOURI AMMA,
8. RATNAKUMARI, D/O.AMMU @ GOURI AMMA,
9. KALLYANIKUTTY, D/O.AMMU @ GOURI AMMA,
10. ACHUTHANKUTTY, S/O.AMMU @ GOURI AMMA,
11. PRABHAKARAN,
12. VISWANATHAN,
13. SATHYAVATHI,
14. SUJATHA,
15. VIJAYAN, S/O. MANGALAKUMARI,
16. PADMAKUMAR, S/O. LEELAVATHI,
17. SILU, D/O. LEELAVATHI,
18. SINI, S/O. LEELAVATHI,
19. REMADEVI, D/O. KOMALAKUMAR,
20. PRADEEPKUMAR, S/O. KALLIYANIKUTTY,
21. MANOMOHANAN, S/O. UNNIKRISHNA MENON,
22. VIJAYAKUMARI, D/O.UNNIKRISHNA MENON,
23. PREMALATHA, D/O.UNNIKRISHNA MENON,
24. VENUGOPALA MENON,
25. DAKSHAYANI AMMA, W/O.GOVINDA MENON,
26. NARAYANAN, S/O. GOVINDA MENON,
27. BHANU, D/O. GOVINDA MENON,
28. KUNHILAKSHMI, D/O. GOVINDA MENON,
29. BHASKARAN, S/O. GOVINDA MENON,
30. REMA, D/O. GOVINDA MENON,
31. SARAWSATHY, D/O. GOVINDA MENON,
For Petitioner :SRI.P.CHANDRASEKHAR
For Respondent :SRI.P.N.RAVINDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.16882 OF 2006 ()
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Dated this the 1st day of February, 2010
J U D G M E N T
The writ petition is filed seeking mainly the following
reliefs:
i. to call for the records leading to Ext.P4
and set aside the same.
ii. to issue a direction directing the court
of the Munsiff-Magistrate, Pattambi not to
evict the petitioners without determining
the value of the improvements and without
paying to them the value so determined.
2. Ext.P4 order passed by the learned Munsiff-
Magistrate, Pattambi in the execution proceedings of a decree
passed in a suit for partition and redemption, declining the
request of the petitioners for assessment of the value of
improvements and payment of compensation invoking the
provisions of the Kerala Compensation for Tenants
WPC.16882/06 2
Improvements Act, 1958, is challenged in the writ petition.
3. Petitioners are the legal heirs of the 3rd defendant in
O.S.No.27 of 1978 on the file of the Munsiff-Magistrate Court,
Pattambi. Admittedly, the 3rd defendant as one of the
co-mortgagors redeemed the mortgage, and thereafter,
plaintiffs, the other co-owners applied for partition and
redemption instituting the above suit. Parties had gone up to
the apex court over the disputes covered by the suit and by
Ext.P2 judgment, the apex court directed for passing of a
preliminary decree holding that the suit has been filed within
the period of limitation and the redeeming mortgagor by
subrogation has a status of a mortgagee and the
non-redeeming co-mortgagors remitting the share of the
mortgage price from them can get partition of the property.
Admittedly, pursuant to Ext.P2 judgment, preliminary and
final decrees have been passed in the suit. In execution of the
decree, the present petitioners/legal heirs of the 3rd defendant
raised the plea of valuation of improvements invoking the
provisions under the Compensation for Tenants Improvements
WPC.16882/06 3
Act, 1958. The decree holder filed objections to that claim and
the learned Munsiff, after hearing both sides, declined the
request made by the petitioners for valuation of improvements
vide Ext.P4 order. Propriety and correctness of Ext.P4 order
is challenged in the writ petition.
I heard the learned counsel on both sides. Admittedly,
before passing of the preliminary decree, no claim for value of
improvements was canvassed nor assessed, and further, the
share of the mortgage amount due from the plaintiffs had
already been deposited by them. So much so, there is
cessation of the relationship of mortgagor-mortgagee between
the parties. Then the only question is whether the
petitioners/legal heirs of the 3rd defendant are entitled to
canvass and claim the benefit under the Compensation for
Tenants Improvements Act, 1958. Section 5 (3) of the above
Act makes it abundantly clear that the compensation for
improvements made subsequent to the date up to which
compensation for improvements has been adjudged in the
decree and the re-valuation of an improvement can be
WPC.16882/06 4
canvassed by a tenant, provided there was a claim for
improvement, its determination and awarding of compensation
under the decree. In the present case, there was no claim nor
any adjudication as to valuation of improvements before
passing of the decree. That itself is sufficient to conclude that
the present petitioners are incompetent to canvass any claim
under the above Act. On that ground, without going into the
other aspects covered by Ext.P4 order, I find no interference
is called for, and the writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp