IDICHANDI MATHAI Vs. NARAYANAN UNNITHAN

JUDGEMENT

(1.) The 1st defendant is the appellant. The suit is for redemption of an otti and kuzhikanom executed by the predecessor in interest of the plaintiff in favour of the predecessor in interest of the defendants, evidenced by Ext. A dated 14-12-1080. The only contention that was urged before the Trial Court by the defendants was that Ext A was a renewal of another mortgage of 1061 and as such the defendants are entitled to the value of improvements effected on the property since 1061. The Trial Court decreed the suit assessing the value of improvements as S. Rs. 3,527, chakrams 9 and cash 3. The lower appellate court affirmed that decree with only a slight modification in the value of improvements enhancing the same to Rs. 3636, chakrams 5 and cash 9. In all other respects the decree of the court below was affirmed by the first appellate court. This Second Appeal is against the latter decree.

(2.) The main ground urged in this appeal before me by the learned counsel for the appellant is that the plaint transaction, being an otti and kuzhikanam, is either an irredeemable kanom or a lease coming within the purview of Act I of 1957.

(3.) No such contention was raised either in the Trial Court or in the lower appellate court. Even in the memorandum of second appeal preferred in this court there is no contention that it is a lease. A ground is taken in the memorandum of Second Appeal that the courts below erred in overlooking the most important point raised as to the irredeemable kanom demise of the property. Admittedly no such plea was ever raised in the courts below and therefore this accusation of non consideration of the most important point by the courts below is absolutely unwarranted.