P MUTHAYYA Vs. CHELLAPPAN PILLAI

JUDGEMENT

(1.) This appeal arises from the judgment of the learned Single Judge of the High court of Madras, dated 16/6/1980. It arises out of a suit for partition and redemption of mortgage deed filed by one P. Muthayya. The trial court had dismissed the suit. But, on an appeal by the plaintiff, the judgment of the trial court was set aside and the suit of the plaintiff for redemption was decreed and the share of the plaintiff was determined as 5/6th share in his 2/3rd share. Defendant 1's share was determined as the l/6th share out of the 2/3rd share. Some portion of the balance of l/3rd share was held to go to defendants 20 to 22 and defendants 2 to 19 were also held to get some portion by reason of the other sharers in not having instituted the suit forredemption within time. However, on the request of all the parties a preliminary decree for partition was passed but the matter was remanded to the trial court for determining the shares. The lower court was also directed to decide the amount due under the mortgage deed of which redemption was allowed and the value of improvements, if any, to be paid by the mortgagor.

(2.) The High court in second appeal set aside the decree for redemption of mortgage, vide mortgage deed Ext. A-1 on the ground that Karanavan in whose favour the mortgage deed was executed was Padmanabhan Pillai Mathevan Pillai (in short Mathevan Pillai) a junior member of the Karanavan and it was beyond his powers and that it was executed when the senior member of the Karanavan, namely, Raman Pillai was alive. The whole case turns round on the validity of Ext. A-1 having been executed in favour of the mortgagee, Mathevan Pillai.

(3.) The mortgagee under the suit mortgage deed Ext. A-1, namely, Mathevan Pillai belonged to the Tarwad of defendants 2 to 19. The plea of defendants 2 to 19 was that he was not the Karanavan of Tarwad and that he was only a junior member and as such he was disentitled to represent the Tarwad by figuring as mortgagee under Ext. A-l. The plaintiff/appellant's case was that mortgagee Mathevan Pillai was really the Karanavan of the Tarwad and he represented the Tarwad consisting of defendants 2 to 19. The plaintiff had relied upon the judgments in OS No. 678 of 1112 and OS No. 731 of 1112 (Ext. A-14 in support of his contention. But those suits were filed by Raman Pillai Bhagavathy Pillai, the then Karanavan of defendants 2 to 19. The plaintiff in that suit alleged that he was the Karanavan and Manager of the Tarwad. OS No. 678 of 1112 was filed to set aside a gift deed executed by Mathevan Pillai the prior Karanavan. It was specifically admitted in the plaint in OS No. 678 of 1 1 12 that the prior Karanavan was Mathevan Pillai. The second suit (OS No. 731 of 1112 was filed to set aside the will executed by Mathevan Pillai and for declaration of title. Therein also it was alleged that the plaintiff therein, namely, Raman Pillai Bhagavathy Pillai was the next Karanavan of the Tarwad after the death of Mathevan Pillai who was the prior Karanavan and that the said Mathevan Pillai died on 20-7-1 112 (M. E. ) (equivalent to 1937. It was specifically stated that the property in that case was purchased by Mathevan Pillai on behalf of the Tarwad.