1. By the preliminary decree for partition, Of the properties of a tarwad", As settled by the judgment of the travancore - cochin high court in s. A. No. 690 of 1124, The purchase made by the deceased 43rd defendant of an item of property in execution of the decree in o. S. 1239 of 1102 was set aside, Subject to a charge in her favour over the property, For the sale amount and for the value of improvements effected by her, And to her right to be in possession till the payment of the amount due to her. In execution of the partition decree, When the 62nd defendant, To whom apart of the property was allotted on partition, Attempted to obtain possession, A dispute arose between him and the 68th defendant who was impleaded as the legal representative of the 43rd defendant, And is the appellant here, As to the value of improvements payable to the latter. A commission which was issued, Assessed the value of improvements according to the customary method, I. E., Irrespective of the provisions of the kerala compensation for tenants improvements act, Act xxix of 1958, Or shortly the act. The appellant however claimed to be a "tenant" within the meaning of the definition of the term in s. 2 (d) of the act, And insisted, That the improvements ought to be valued pursuant to the provisions of the act. The courts below have negatived the claim.

2. The only point to be decided in the appeal is, Whether the 43rd defendant was a "tenant" under the act. In the courts below, This contention was founded on s. 2 (d) (iii) of the act, Which runs as follows:

s. 2 (d). "'tenant' with its grammatical variations and cognate expressions' 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."

this contention was repeated in this court too, But greater stress was laid on s. 2 (d) (i) of the act which reads thus:

"a person who, As lessee, Sub - lessee, Mortgagee or sub - mortgagee or in good faith believing himself to be lessee, Sub - lessee, Mortgagee, Or sub - mortgagee of land, Is in possession thereof."

for the sake of completeness, The remaining clause may also be quoted:

(ii)

"a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste - land, But without the permission of such person, Brings such land, Under cultivation and is in occupation thereof as cultivator."

3. The basic facts have to be kept in view. The hypothecation bond on which the 43rd defendant sued and obtained the decree in 0. S. 1239 of 1102 was found to be supported by consideration and necessity, But the purchase by her in execution was held to be invalid, By the judgment in s. A - 690 of 1124. The purchase by the 43rd defendant was evidenced by ext. V certificate dated the 17th karkadakam 1106. She thereby became the owner, And reduced the property to her possession, Through court delivery, On the 29th karkadakam,1107. The judgment in s. A. 690 of 1124 was pronounced several years later, On the 20th october 1953.

4. To put it simply and shortly, A tenant is one who holds or possesses land or property under another; what underlies this concept, Is certainly one of derivative possession. One of the objects of the act being to define, As widely as possible, If not to enlarge, The category of those, Who, Upon eviction from their holdings, May claim the value of improvements which they may have effected, The act has extended the concept outside its strict limits, So as to take in those, Who, If not by mutual agreement, Unilaterally and subjectively by reason of their bonafide intention or belief, Hold under others. This extended notion underlies the latter part of clause (i), And the whole of clause (ii) of the definition in s. 2 (d). There is no reason to think, That this is not true of clause (iii) also, Though in one view, This may be deemed to be a residuary clause.

5. So understood clause (iii) also envisages a case of derivative possession in the extended sense explained above, Which must fulfil the two conditions prescribed, Of ownership in another, And of the requisite "belief" in making the improvements. The latter part of clause (iii) has therefore to be read in conjunction with, And supplementary to, The earlier part. A person who therefore enters possession in pursuance of a court sale in his favour, Does come into possession of property belonging to himself and not to another, And when he improves it, He does so as owner, His "belief" in making the improvements being wholly irrelevant. I am therefore of the view, That the courts below were justified in rejecting the appellant's claim on the basis of clause (iii).

6. The argument based on clause (i), Was, That by virtue of the decree in s. A. 690 of 1124, The 43rd defendant obtained a charge and also a right to continue in possession, And that this ipso facto resulted in a mortgage. I cannot accept this argument. To me, It seems impossible to conceive of a mortgage, Except as defined in the transfer of property act, Or in accordance with the principles of that act in cases not governed by it. The learned counsel for the appellant has not pointed out one instance, Either from the text books or from decided cases, Where a notion like this has been entertained. Speaking of the definition of a mortgage in the transfer of property act, Mahmood, J. Observed as follows in gopal v. Parsotam, 5 all. 121 at 137:

"mortgage as understood in this country cannot be defined better than by the definition adopted by the legislature in s. 58 of the transfer of property act. That definition has not in any way altered the law, But on the contrary, Has only formulated in clear language, The notions of mortgage as understood by all the writers of text books on indian mortgages. Every word of the definition is borne out by the decisions of the indian courts of justice."

7. It is therefore to the definition in the transfer of property act, That one must turn, In order to understand what a mortgage is. A mortgage involves a "transfer" of an interest in specific immovable property. A transfer means, In terms of s. 5 of that act:

"an act by which a living person conveys property to one or more other living persons and to 'transfer property' is to perform such act."

8. While a charge under s. 100, T. P. Act, May be created by act of parties or by operation of law, A transfer as defined, Can never take place by operation of law. This has become so well - established, As to be one of the important distinguishing principles between a charge and a mortgage. Sadasiva jyer, J. Observed thus in srinivasa raghava iyengar v. K. R. Raghunatha iyengar, A. I. R. 1919 madras 528 at 530 (2) :

"where it (a charge) is created by law and not by act of parties, It is of course, Not a mortgage, As the definition of a mortgage under s. 58 contemplates the creation of the mortgage by the intentional act of a private person called the mortgagor who transfers the mortgage interest in favour of the mortgagee."

9. The same test to distinguish a charge from a mortgage, Was proposed in balasubramani nadar v. Sivagura asari,11 i. C. 629 at 632. The two cases lakshmanan mariady v. Narasimha aiyan ranga rao, 10 t. L. R. 147 and krishnan sivaramakrishna pillai v. Sankaran narayan pillai, 22 t. L. J 1127, Were both cases of transfers within the definition of s. 5 of the transfer of property act, And have no application.

10. Counsel for the appellant contended, That a charge created by a decree of court, Is not a charge by operation of law, Within the meaning of s. 100 of the transfer of property act. This has really nothing to do with the distinction pointed out already, Once it is realised, That a court cannot and does not make a "transfer of property" as defined. A court is not a juridical person and cannot hold or assign property. Raj raghubar singh v. Jai indra bahadur singh 42 all. 158 at 167. A decree itself cannot transfer property, Sayid wajid ali shah v. Mussamat umrai bibi (1940) 1 all. L j. 621; nor is a court sale such transfer. As observed in mangal lal v. Gasikhan, A. I. R. 1929 all. 800 "for transfer there must be a person who conveys in the case of an auction sale, There is no person who conveys". At the same time, It must be observed, That the proposition that a charge created by a decree is not one created by operation of law, Is open to doubt, And courts are not uniform in their opinion. The madras and bombay high courts have held, That it is a charge by operation of law. Hidayutallah, J., As he then was, Has taken the same view in bapurao v. Narayan a. I. R, 1950 nag. 117. However, It is unnecessary to pursue this matter,

11. The 43rd defendant came into possession in the year 1107 under the court delivery. This certainly did not amount to a mortgage, Nor was it contended to be so. There was no transfer in any sense of the term, Even of possession, By the judgment in s. A. 690 of 1124, Assuming it to be capable of making a transfer, Because the 43rd defendant had been in possession all the time. It may be, That her right was guaranteed to continue in possession till the amount due to her is paid, And this may partake of the nature of a lien, Which, As supposed, Is not altogether unknown in india, Even with respect to immovable property; for example, See instances of such liens over immovable property mentioned by rashbehari ghosh in "the law of mortgage in india", 4th edition, Vol. I, Pages 111, 126,127, And of a possessory lien of an agent over immovable property, See page 140 of the same book, And s. 221 of the indian contract act, Not to mention the lien of an unpaid vendor which has been enacted as a charge in s. 55 (4) (b) of the transfer of property act. It seems to me, That the right and the proper view to take, Of the effect of the judgment in s. A. 690 of 1124 is, That while it created a charge in favour of the 43rd defendant, It made also the recovery of the property from her, Prayed for by the tarwad members claiming partition, Conditional upon their paying the full amount due to her; this affected only the nature or the substance of the relief granted in the suit.

12. On the principles discussed above, There is no reason to hold, That by virtue of the directions in the judgment referred to, The 43rd defendant became a mortgagee of the properties. She was not therefore a "tenant" within the meaning of clause (1) of s. 2 (d) of the act, And her prayer for assessing the improvements pursuant to the provisions of the act, Was rightly dismissed.

13. The respondent, The 62nd defendant, Has preferred a cross - objection, In that, The lower appellate court allowed the full value of the reclamation to the appellant, And did not make any deduction from it, On account of the expenses of planting the reclaimed area, Which had been separately assessed. While it is true, That the execution court had made a deduction of 1/3rd stating no reason therefor, It does not appear, That the point taken in its present form, Had been raised in the courts below, And i therefore decline to go into it.

14. No other point was pressed in the appeal and in the cross - objection, Which are both dismissed; but in the appeal the appellant shall pay the full costs of the respondent. No order for costs in the cross - objection.