VELAYUDHAN NARAYANAN Vs. KRISHNAN SANKARAN

JUDGEMENT

(1.) These appeals arise from the decree in a suit for redemption of a mortgage and purakkadom executed by deceased Kochukunju Raman in favour of defendants 1 to 3 The plaintiffs case is that Kochukunju Raman was the karnavan of the Sakha to which they and defendants 9 and 10 belong, that the property was acquired in his name with the aid of funds provided by his father and that they are entitled to redeem the property on behalf of their sakha. The mortgage right vested in defendants 4 to 6 and 8 on the date of suit. The plaintiffs claimed recovery of a sum of Rs. 3,000/- as damages for allowing part of the property, a paddy field, to get silted and mesne profits at the rate of 350 paras of paddy per annum. The fourth defendant, a son of Kochukunju Raman, denied the plaintiffs title to redeem the property. According to him the property was the self acquisition of Kochukunju Raman and the same devolved on his children. The claim for damages was denied. It was also contended that the annual mesne profits would amount to only 100 paras of paddy. The 8th defendant claimed title to 20 cents in the eastern part of the property under a revenue sate. As regards 2/3rd of the property in his possession under the mortgage, he stated that he was prepared to surrender to such person as was entitled to redeem. He too denied liability for damages. The court below held that Kochukunju Raman was the maternal uncle of the plaintiffs, that the property belonged to their thavazhi and that the plaintiffs were entitled to redeem. The 8th defendants claim in respect of the 20 cents purchased in revenue sale was found against. The claim for damages was disallowed. It was also found that the annual mesne profits would amount to only 120 paras of paddy. A.S. No. 192 has been preferred by the plaintiffs and A. S. No. 383 by the 4th defendant, from this decree. The 4th and 8th defendants have preferred a memorandum of cross objections in A.S. No. 192 claiming the 20 cents under the revenue sale, as well as the whole costs incurred by them.

(2.) A.S. No 383 of 1955 may be considered first. This is the 4th defendants appeal and the only point raised by him is that the plaintiffs are not entitled to redeem the property. The 4th defendants case is that Kochukunju Raman was a junior member of the main tarwad, that the property was acquired by him with his own funds, that he had no sisters as alleged by the plaintiffs and that Chakki from whom the plaintiffs and defendants 9 and 10 have descended was not Kochukunju Ramans sister but a member of a different thavazhi. The court below upheld the plaintiffs case on these points. The property was acquired in the name of Kochukunju Raman under Ext. H dated 5-2-1046. According to the age given by Kochukunju Raman in Ext. XIV and other documents, he could not have been more than eleven years old on the date of Ext. H. The property was in the possession of his father under Ext C of the year 1044 and the premium paid under Ext. C was treated as part of the consideration under Ext. H. The learned Judge found that the property was acquired in the name of Kochukunju Raman by his father and that it should therefore be treated as the thavazhi property of Kochukunju Raman and his sisters. The question whether Kochukunju Raman had sisters will be dealt with later. At this stage it is sufficient to observe that the evidence referred to above supports the plaintiffs case that the property was acquired in Kochukunju Ramans name by his father. The acquisition made by a marumakkathayee father in the name of his son in the year 1046 must be treated as one for the benefit of the thavazhi.

(3.) It is also contended by the 4th defendant that Chakki was not the sister of Kochukunju Raman but that she belonged to another thavazhi. Ext. XIV, a partition deed by which the main tarwad became divided in 1081, no doubt, supports the appellant. It is stated in Ext. XIV that Chakki and Kunjupennu belonged to a different sakha. Kochukunju Raman deposed in Ext. III that he had two sisters, Chakki and Kunjupennu. A decision on this point is unnecessary in view of the fact that Kochukunju Raman died in the year 1092 when the parties were governed by the customary law applicable to marumakkathayee Ezhavas according to which his property would have devolved on his thavazhi, and in the absence of a tavazhi, on the main tarwad. The main tarwad became divided into several sakhas under Ext. XIV so that each sakha would have got a specific share in the property of Kochukunju Raman. The plaintiffs and defendants 9 and 10 belong to one sakha and they are therefore entitled to maintain the suit. Even if the property had belonged to Kochukunju Raman, the result would have been the same. In these circumstances the court below rightly held that the plaintiffs were entitled to redeem. A.S. No. 383 must therefore be dismissed.