JUDGMENT

These two second appeals have arisen out of a suit brought by the Jemni mortgagor to redeem a kanom mortgage. Various complicated questions, chiefly relating (a) to the details of the properties mortgaged, (b) to the michavarsm payable by the mortgagee tenant (c) to the damages, if any, due to the mortgagee on account of the mortgagee's inability to get possession of some of the mortgaged properties, and (d) to the compensation, if any, payable for trees of spontaneous growth to the mortgagee, have to be dealt with in these two second appeals, one of which is by the plaintiff and the other by the 1st defendant's legal representatives. These questions might be thus stated in detail:—

1. (a) Was the tank situated in the item 7 marked in the Commissioner's plan (and described in the mortgage document, Exhibit A, as the boundary mark between items 6 and 7 of that deed) included in the mortgage demise?

(b) Has the Lower Appellate Court wrongly given a decree for the redemption of that tank also while deciding that the tank site is not included in the demise?

2. (a) Do those portions of the plaint mortgaged properties, which were decided in the former suit 147 of 1890 to belong to a rival jenmi (38th defendant in that suit) and which are now enjoyed by the defendants 13, 32, 33, 44, 47, 50 and 62, who claim to be sub-lesses of that rival Jenmi, really belong to the plaintiff?

(b) Is that question res judicata against the plaintiff by the decision in that former suit?

(c) Is the plaintiff estopped in any other manner from claiming redemption of those properties?

3. (a) Did the plaintiff by including those properties in the plaint demise of 1888 covenant with the 1st defendant that he had title to those properties?

(b) In case it is found that the plaintiff had no title to those properties, is the 1st defendant entitled to claim damages from the plaintiff on account of the breach of the plaintiff's said cevenant?

(c) Had the 1st defendant knowledge on the date of the Ex. A of all the facts and was there, in consequence, no right in him to rely in his defence on any such covenant of title?

(d) Is the 1st defendant precluded by acquiscence or waiver from claiming such damages?

(e) Is the 1st defendant's claim for damages barred by limitation. If it is not so barred, what is the amount of damages to which he is entitled?

4. (a) Whether the 1st defendant has, at the instance of the plaintiff, been spending 16 paras of paddy a year at the annual festival in the temple of the plaintiff called Porukurkkikavul, on the understanding that the 16 paras should be credited towards the Michavaram due to the plaintiff?

(b) Is the 1st defendant entitled to credit for the said 16 paras?

5. (a) The yearly Michavaram agreed upon under the plaint demise of 1888, Exhibit A, being for the 1st two years only, the old Michavaram of 168 paras and 2 Rs. worth of arecanuts, did the 1st defendant agree to an enhancement of the Michavaram by 43 paras, 8 Narayans and 4 Nazhis of paddy for the remaining years of the term agreed upon by the 1st defendant, as the 1st defendant expected the other properties which he litigated for in 147 of 1890 to be reduced to his possession?

(b) Is the 1st defendant, therefore, not liable to pay the said additional Michavaram as he was unable to reduce the other properties into his possesion?

6. (a) Is the 1st defendant entiled to add to his kanom account the costs which he incurred in the litigation in the former suit 147 of 1890?

(b) Is he precluded from so claiming the said costs by any contract to the contrary found in the kancm document, Exhibit A?

7. (a) Is the 1st defendant entitled to claim compensation under the Malabar Compensation Act for the value of the trees of spontenous growth?

(b) Is the said claim ret judicata by the decree in O.S No. 147 of 1890?

8. Are the plots N3, N4, and N5 in the Commissioner's plan included in the properties demised under Exhibit A and is the Lower Appellate Court in error in having held otherwise?

(I have formulated only those questions which were argued before us and not all the numerous questions formulated in the 46 grounds stated in the two memoranda of Appeals taken together).

Questions (1 a and b).—The Lower Appellate Court has given good grounds for its conclusion that the tank situated in item 7 was not included in the mortgage demise. As it is, however, not clear that its decree, which modifies the Subordinate Judge's decree by disallowing among other reliefs the compensation claimed for the tank, makes a corresponding modification in the said Subordinate Judge's decree so as to exclude that tank from the properties to be redeemed by the plainliff, I would direct that the matter be made clear by mentioning in the decree to be prepared in this Court that the said tank is excluded from the properties of which redemption is decreed to the plaintiff. I need hardly say that the question of the ownership and possession of that tank is left undecided in this suit.

2nd question.—This relates to the title to the properties which the 1st defendant sought to recover as part of the properties demised to him by the plaintiff under Exhibit A in the former suit 147 of 1890 on the file of the Valluvanad District Munsif's Court. To that suit the present plaintiff was a party. There can be no doubt that that suit was conducted bond fide by the present 1st defendant (as plaintiff) in the interests of both himself and the present plaintiff, who was the 37th defendant in that suit. The title to those properties was decided against the present plaintiff and the present 1st defendant in favour of the 38th defendant in that suit. So far as those properties were concerned, therefore, the matter is clearly res judicata according to the decision in Pathuma v. Salimamma (decided by Sir Charles Turner, C. J., and Mr. Justice Muthusamy Aiyar) though that suit 147 of 1890 was brought in the Valluvanad District Munsif's Court which has had no jurisdiction over the present suit whose value is over 2500 Rupees. In I.L.R, 8 Mad., 83 the learned Chief Justice and Muthusamy Aiyar, J., draw a distinction between the competency of a Court to decide on the subject matter directly in issue and the competency of the same Court to decide finally all the questions of fact and law which have to be decided in order to arrive at the decision on the title of subject matter. The decisions on such questions of fact and law will not be res judicata if the subject matter of the subsequent suit was beyond the jurisdiction of the Court which decided the first suit.

But it is argued by the plaintiff's learned Vakil Mr. C. V. Anantakrishna Aiyar that the decision in I.L.R, 8, Mad., 83 must be held to have been over-ruled impliedly by the observation of their Lordships of the Privy Council in Gokul Mandar v. Pudmanund Singh. Their Lordships' dictum, though obiter, (as their Lordships expressly say that it was not necessary for their Lordships to decide the plea of res judicata”), is, of course, binding on us, if it is really against the ratio of the decision in I.L.R, 8, Mad., 83. But as I understood their Lordships' decision it only criticises an objection raised by the respondent's counsel that the finding of a Revenue Officer in a Revenue Suit on the status of the appellant was res judicata in the subsequent suit which was not within the jurisdiction of the Revenue Officer; and their Lordships point out the difference between the wording of Sect. 13 of the Civil Procedure Code of 1877 and the wording of Sect. 13 of the Civil Procedure Code of 1882, which latter introduced for the first time the words “competent to try such subsequent suit etc.” It must, no doubt be admitted that the Calcutta High Court in Shibo Raut v. Baban Raut has interpreted the observation of their Lordships in 29 Cal., 707 as deciding that even the decree in the former suit as regards the title to the subject matter of that suit is not res judicata in the subsequent suit provided that the subsequent suit related, not only to the subject matter of the former suit but also to other matters so as to make the total value of all the subject matters in the subsequent suit to exceed the jurisdiction of the Court which tried the first suit. But this Court has consistently followed I.L.R, 8 Mad., 83, one of the latest cases on this point being Ranganatham Chetty v. Lakshmi Ammal decided by Sir Arnold White, C. J., and Oldfield, J. As the learned C. J., puts it “although taking all the causes of action together, the second suit may be said to be outside the jurisdiction of the Original Court, still if the specific question be within the jurisdiction of the Original Court and was determined by the Original Court, it is no answer to say that the whole suit was beyond the jurisdiction” (of the Court which tried the first suit). I, therefore, hold on question 2 (b) that the decision in the former suit on the title to the subject matter of that suit is res judicata by the decision in that former suit given against the present plaintiff and against the 1st defendant. Even if the question is not res judicata, the 1st defendant and the plaintiff having been both parties to the suit 147 of 1890, the plaintiff is equitably estopped by reason of the finding in the previous suit from raising the contention that the properties disputed in that suit belong to him. The principle on which this equitable estoppel is raised has been clearly indicated in the decision of Sundara Aiyar, J. and Phillips, J., in Nallappa v. Vridhachala. I would, therefore, answer question 2 (c) also in the affirmative.

Having thus answered questions 2 (b) and 2 (c) against the plaintiff it becomes unnecessary to consider question 2 (a).

Coming to the third question with its sub-divisions (a) to (e), the principal point is whether there was a covenant for title given by the plaintiff as to the properties claimed by the rival Jenmi Sect. 65, clause (a), of the Transfer of Property Act clearly says that “in the absence of a contract to the contrary, the mortgagor should be deemed to contract with the mortgagee that the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same.” As the plaintiff included the disputed lands in his demise to the 1st defendant he must be deemed to have contracted that he was the Jenmi of those disputed lands also. The question of the knowledge of the mortgagee as to the defect of title in the mortgagor is irrelevant as has been held in the recent cases in this Court on the analogous question as between vendor and purchaser. (See Raghava Aiyangar v. Samachariar, Subbaraya Reddiar v. Rajagopala Reddiar and Arunachala Aiyar v. Ramaswami Aiyar.

The sub-question 3 (c) need not, therefore, be answered.

As regards the question of acquiescence or waiver, question 3 (d), their Lordships of the Privy Council have doubtless held in Partab Bahadur Singh v. Gajadhar Bakhsh Singh, that a mortgagee, whose mortgage was created in 1851 and who lost portions of the mortgaged properties in 1853, 1858 and 1864 by acts beyond the mortgagor's control, cannot claim compensation after having acquiesced for 30 years, in the diminution of his security. But the mortgage in that case was executed before the Transfer of Property Act came into force and that fact might make some difference as is suggested in the later case Abdullah Khan v. Basharat Husain, decided by their Lordships of the Privy Council. I think that the 1st defendant's statutory right given by the breach of the covenant (attached to the mortgage transaction under Sec. 65 (a) of Act IV of 82) cannot be taken away except by an express release of such rights by the 1st defendant or by acquiescence of such a very long duration that a release can be safely presumed. In this case, the 1st defendant's former unsuccessful litigation of 1890 in respect of the disputed lands came to a close only in 1897 (See Exhibit X). This suit was brought in 1905 and the 1st defendant who has paid nothing for Michavaram after 1895, except the 16 paras of paddy annually spent for the temple festival cannot be said to have by his conduct released his claim for compensation for the breach of the covenant given by the mortgagor as to his title to the disputed lands. In the case of M. V. Seethikutti v. Kunhamtty (S. A., No. 259 of 1913), quoted on his side by the plaintiffs' Vakil, I find that the mortgage document sought to be redeemed was dated in 1871, long before the Transfer of Property Act came into force and hence, I do not feel pressed by that decision.

As to whether the 1st defendant's claim for damages is barred by limitation, part of question 3 (e), I do not think that any question of limitation arises as between mortgagors and mortgagees when accounts are taken at the time of redemption. (See Parasurama Pattar v. Venkatachellam Pattar, decided by Benson and Sundara Aiyar, JJ.

The only sub-question remaining under the head is what is the amount of damages to which the 1st defendant is entitled on account of the breach of the covenant [part of question 3 (e)] and this is connected with questions 4 and 5. They may, therefore, all be considered together.

The 1st defendant practically admits in paragraph 15 of his Written statement that the agreement to pay the additional Michavaram of 43 paras, 8 narayams and 4 nazhies of paddy per year after the expiry of the first two years of the lease term was based on his expectation that he would be able to obtain possession of the disputed properties also at or about the end of those two years. In other words, it is practically admitted that the old Michavaram of 168 and odd paras of paddy (and 2 Rs. worth of areca nuts) which were being paid by the former kanomdars (the Melappat Tharavad people) was the fair amount of Michavaram which would have to be paid if the mortgaged lands other than the disputed land had alone been given on demise to the 1st defendant. This, to my mind, clearly indicates that the reasonable compensation which the 1st defendant could claim for the breach of the plaintiff's covenant to secure title to the disputed lands was only his being released from the obligation to pay the additional Michavaram of 43 and odd paras annually. I do not think it necessary in this view to point out in detail some of the fallacies underlying the reasons given by the learned Subordinate Judge (the Court of first instance) for holding that the 1st defendant is entitled, not only to pay nothing as Michavaram but even to get compensation in addition from the plaintiff. One point, however, might be noted, viz., that the learned Sub-Judge takes the present pattom of these disputed lands as the basis of his calculation for the ascertainment of damages, ignoring the fact that that present higher pattom is obtainable owing to the large improvements effected on those lands by the former mortgagees, that the 1st defendant could not have recovered those lands for the enjoyment of the said higher income (assuming that those lands belonged to the plaintiff), without paying large sums as compensation for the improvements and that the damages which the 1st defendant sustained by being unable to get possession of those lands should, therefore, be calculated on the basis of the present pattom income minus the reasonable interest on the sum which he would have had to pay for the improvements.

I see no sufficient ground why the 16 paras which the Subordinate Judge finds to have been spent yearly by the 1st defendant at the plaintiff's request on the understanding that it shoud be credited towards the Michavaram should not be so credited towards the 168 and odd paras which I have found as above to be the Michavaram payable by the 1st defendant (to the plaintiff throughout. This disposes of the questions of damages and Michavaram referred to above.

The sixth question relates to the costs of the litigation in suit 147 of 1890. In Exhibit A, the 1st defendant clearly says that he himself will meet all the expenses to be incurred for recovering the properties mentioned in Exhibit A. Sect. 72, Clause (c) of the Transfer of Property Act, no doubt, allows the mortgagee to spend as much money as is necessary for supporting the title of the mortgagor to the mortgaged property; but it proceeds to say that it is only “in the absence of a contract to the contrary” that the mortgagee could add such money to the principal of the mortgage money. There is found in Exhibit A such a clear contract to the contrary. But it is argued for the 1st defendant that the litigation whose expenses the 1st defendant took upon himself to bear was only the litigation with the former Kanomdar on the questions of improvements, arrears of Michavaram, etc., and not a litigation in which he was obliged to fight a rival Jen mi also. I do not think that the contract to the contrary found in Exhibit A was restricted to litigation in which the Jerimi title to any portion of the property would not be put in dispute. The document generally mentions “all expenses necessary for recovering the properties”—whether the properties had to be recovered through one kind of litigation or another, it does not, in my opinion, matter. I, therefore, agree with the lower Courts that the 6th question must be decided against the 1st defendant.

The 7th question relates to the claim for compensation for trees of spontaneous growth allowed to the 1st defendant by the lower Courts. Madras Act I of 1900, Sect. 5, Clause (1), says that every tenant [“tenant” including “mortgagee” under Sect. 3, Clause (1)] shall be entitled to compensation for improvements which have been made by him or his predecessor in interest and for which compensation has not been already paid. Sect. 10 says (as 1 understand it) that trees and plants of spontaneous growth grown during the period of the tenancy must also be considered as improvements made by the tenant, though the compensation is to be awarded only on a lower scale than for other improvements. Mr. Anantakrishna Aiyar ingeniously argued that as Sect. 10 allows the award of compensation only for trees and plants spontaneously grown during the period of the tenancy, the 1st defendant is not entitled to compensation for trees which had begun to grow before 1888 when his tenancy commenced. Though the language of Sects. 5 and 10 of the Act are not very happy, I have no doubt that the compensation due to the 1st defendant's predecessor in the Kanom right now vested in the first defendant is claimable by the 1st defendant. In Thupran v. Mamad Kasim Sait, Sundara Aiyar, J., and myself state as follows:—” It is immaterial whether the improvements were made by the 2nd defendant himself or by any other person in possession before him. It is quite sufficient that the improvements are on the land even if they were made by some previous occupant, as it was not the case of either party that anybody except the 2nd defendant was in occupation at the time of the suit.” Further, if the construction contended for by Mr. Anantakrishna Aiyar be accepted, the result would be that a Melkanomdar who is obliged to pay after 1900 the compensation for spontaneously grown trees to the prior Kanomdar cannot claim that money when he is himself sought to be redeemed by the Jenmi afterwards. Further, apart from Sect. 10 of the Malabar Tenants' Improvements and Compensation Act, the subsequent mortgagee who pays a prior mortgagee, acquires all the rights and powers of the prior mortgagee under Sect. 74 of the Transfer of Property Act. The plaintiff's suit, though it is worded as a suit to redeem the Kanom in favour of the 1st defendant, is in the eye of the law a suit to redeem the prior Kanom also, the rights under which have passed to the 1st defendant by his redemption of the said 1st mortgage. Now, if the plaintiff sued to redeem the first mortgagee (that is, the Melappat Tarwad, assuming that they had continued in possession of the mortgaged property till the date of this suit) the plaintiff would be obliged to pay compensation for the trees of spontaneous growth under Sect. 10 and it follows that he is bound to pay the 1st defendant also compensation for those trees. The fact that under the old law no compensation was payable for trees of spontaneous growth and that the 1st defendant was, therefore, not obliged to pay anything to the prior Kanomdars for those trees is irrelevant. The question is: what, on the date of this suit, was payable as compensation for improvements and not what was payable when the suit 147 of 1890 was brought. The decision in suit 147 of 1890 as to what the 1st defendant had to pay to redeem the prior mortgagees is, therefore, not res judicata on the question what on the date of the redemption in this suit, the plaintiff has to pay to the 1st defendant to redeem all the mortgage rights vested in the 1st defendant. I would, therefore, confirm the decision of the lower Courts on this question.

Lastly we have got the 8th question referring to the plots N 3, N4 and N5 in the Commissioner's plan. The boundaries mentioned in Exhibit A for item 14 may possibly include these plots also. The 1st defendant states that he did not get possession of them and as a question of fact it must be taken as found by both the lower Courts that these plots belong to the Vallapuzha Jenmi and are held by the 73rd defendant under that Jenmi.

In the result, the Lower Appellate Court's decree will be modified in a few respects, viz., that there should be no decree for redemption of tank, item 7, that the Michavaram should be calculated throughout on the basis that only the original rate of 168 paras, 1 narayam and 2 nazhies of paddy and two rupees worth of arecanut is payable per year to the plaintiff and that credit should be given to the 1st defendant for 16 paras per year as paid towards Michavaram (besides the sums already allowed by the Lower Courts). In other respects, the Lower Appellate Court's decree will stand confirmed. The above conclusion implies that S. A. No. 2547 of 1912 has totally failed and it must be dismissed with costs.

S. A. No. 2512 of 1912:—In this, the parties will have proportionate costs. There will be also proportionate costs in A.S No. 45 pf 1909 on the file of the District Court, the proportion being calculated on the result of the litigation as decided in S.A No. 2512 of 1912.

Hannay J.—I concur.

These second appeals having been posted to be spoken to this day the court delivered the following:—

JUDGMENT

(1) Six months' time will be allowed from this day to the plaintiff to pay up the additional amount awarded to the defendants under our decree. That additional sum will carry interest at six per cent per annum from when the plaintiff obtained possession in execution of the Lower court's decree.

(2) Interest on arrears of Michavaram will run at 2 per cent.

(3) The value of the tank need not be taken into calculation in fixing the costs.

Decree Modified.