CHANDY AVIRA Vs. THOMMAN VARKEY

JUDGEMENT

(1.) THIS is an appeal filed by the plaintiff against the judgment and decree passed by the Additional Temporary Second Judge, Kottayam, on 11th Kumbhom 1116, dismissing his suit O. S. No. 96 of 1102 on the file of the District Court of Kottayam which was for redemption of a mortgage and puravaippa. The appeal, besides impeaching the decree, attacks the findings recorded by the learned judge that in the event of redemption compensation for improvements is payable by the plaintiff. The properties sought to be redeemed are Cherikkal lands, that is to say, "lands on the summit and slopes of hills cleared for purposes of cultivation". A certain Mannoor Tarwad originally held the properties on Adiyara tenure as early as the year 983 M. E. That Tarwad usufructuarily mortgaged the properties to one Valluvasseril Kurien Mani in the year 1021 and assigned the equity of redemption in the year 1027 in the name of one Ramaru Kartha benami for the mortgagee. Ext. W is the deed of assignment. On even date Kartha gave a surrender in favour of the said Mani acknowledging his benami character and the real title of Mani. On 20th Chingom 1062 Kurien son of the said Mani gave a usufructuary mortgage of the properties in favour of Varkkey Thomman, the father of defendants 1 to 3 for Rs. 500. Ext. B is the deed of mortgage. On 12th Karkadagom 1062 the said Kurien executed a puravaippa, i. e. , a subsequent simple mortgage for Rs. 350 in favour of the mortgagee. Ext. C is that deed of puravaippa. The mortgagee Varkey Thomman died thereafter, leaving defendants 1 to 3 as his heirs. On 21st Vrischigom 1083, the 2nd defendant gave a sub-mortgage of 1/3 of the properties for Rs. 684/- to defendants 4 and 5. Ext. A is the sub-mortgage deed. Three days later, defendants 1 and 3, gave a sub-mortgage of their 2/3 interest also in favour of defendants 4 and 5 for Rs. 2052. The document is not filed, but the fact is admitted. Thus, defendants 4 and 5 became the sub-mortgagees of the entire interest covered by Exts. B and C.

(2.) ON 23rd Thulam 1096, Kurien Mani, the son and representative of the aforesaid Kurien, assigned the equity of redemption over the properties in favour of the 6th defendant. Ext. AD is the deed of transfer. The 6th defendant in his turn assigned his rights in favour of the plaintiff on 9th Kumbhom 1102. Ext. D is the deed of transfer in favour of the plaintiff. These are the facts relied upon by the plaintiff to entitle him to a decree for redemption.

(3.) THE 2nd defendant admits the plaintiff's claim and agrees to a decree as sued for. THE 5th defendant contended inter alia that within the boundaries shown in the mortgage deeds as also in the plaint, a much larger extent and other survey numbers, then the extent and survey numbers shown in the plaint are comprised, that in that extra extent the sub-mortgagees have effected considerable improvements, that the relief claimed by the plaintiff is to redeem the un-improved part of the mortgage properties excluding the improved portion which, if allowed, would prejudice the mortgagees, and that for the reason that the redemption sought is partial, the suit is unsustainable. He put the plaintiff to proof of the original title of the Mannoor tarwad and of Mani Kurien. He pleaded ignorance as to whether the father of defendants 1 to 3 got possession, under the usufructuary mortgage of 1062 of all the properties comprised in the mortgage. He also pleaded that pursuant to the sub-mortgage in favour of defendants 4 and 5, the sub-mortgagees got possession only of a part of the properties and did not get possession of survey Nos. 1961/1 and 1952/3, measuring 176 acres 35 cents as shown in the plaint, that those survey numbers had been declared and constituted a Reserve Forest called the Kalaketti Reserve by the Government taking proceedings in that behalf even as early as the year 1078, that the government were thereafter in possession of these properties as Reserve Forest, that he filed a suit (O. S. 9 of 1092 on the file of the Kottayam District court) against the Government in respect of those properties, that that suit was compromised the Government agreeing to give the properties to defendants 4 and 5 as Puduval on payment of Rs. 13,637 3/4 towards value of site and trees thereon, that that amount was paid by defendants 4 and 5, and that they are in possession under that title and not as mortgagees. THE 5th defendant also contended that the equity of redemption over the mortgaged properties comprised in the mortgage had been purchased by his father from the representatives of mani Kurien as early as in the year of 1083 and that though the transfer in favour of the 6th defendant was by the members of the owner's family, the transfer could not operate to convey anything as the entire title had already been assigned in favour of his father. THE averment in the plaint that the mortgagees are not entitled to any value of improvements was also denied by the 5th defendant, who contended that though there is no provision enabling the mortgagees to effect improvements in the mortgage in favour of the father of defendants 1 to 3, the sub-mortgage in favour of defendants 4 and 5 did contain a provision in that behalf, that pursuant to that provision, the sub-mortgagees had effected considerable improvements which fact was known to and acquiesced in by the mortgagors and that the title of the mortgagees to get compensation could not in any event be disputed.