PAKAVATHI NEELAKANTAN Vs. LEKSHMI PILLAI

JUDGEMENT

(1.) These two appeals arise from one and the same decree in O.S. No. 853 of 1119 on the file of the Kottarakara District Munsiffs Court. The suit was brought to redeem an otti and while the Court granted redemption, the terms on which it has been allowed has not met with satisfaction from the side of the plaintiff or that of the contesting defendants. Defendant 3, one of the legal heirs of the deceased mortgagee, has brought A.S. No. 330 while A.S. No. 598 has been preferred by the plaintiff. For the most part the two appeals cover common grounds but before we proceed to state them we have to state the facts of the case.

(2.) The plaint comprises three items of which item 3 is a building on item 1 put up by the mortgagee. Items 1 and 2 belonged to one Pazhavila Tarwad and in a family partition effected in 1101 these items were allotted to the share of the plaintiffs father, deceased Mathevan Krishnan. On the latters death in 1115 the plaintiff became the sole owner of the properties. Long before the partition of 1101, on 26.8.1071, the Pazhavila Tarwad had created an otti (Ext. B) in respect of these items in favour of the mother of defendants 1 to 3, Kurumba Echamma for a consideration of Fs. 10000 of which Fs. 5000 were left in the hands of the mortgagee to effect certain specified improvements on the properties. Item 1 is a puthuval which had got silted up and the mortgagee was directed to remove the sand and silt and make the property fit for paddy cultivation. Item 2 is a chira adjoining item 1 planted with cocoanut trees and the mortgagee was directed to widen a canal running alongside of it and to construct a culvert at the junction of the canal with an adjoining river. While the properties were thus outstanding in the possession of the mother of defendants 1 to 3, on 4.4.1078 the Pazhavila tarwad granted a melotti in favour of defendant 1 authorising him to redeem the otti and received a sum of Fs. 2000 as additional ottiartham. The document is Ext. C in the case and it is really a motti cum puramkadam deed, for besides the Fs. 2000 mentioned a further sum of Fs. 3000 was also received by the tarwad from defendant 1. In respect of the latter amount the equity of redemption was charged and the tarwad had made itself personally liable for its repayment. In fact the provision was that Fs. 1000 will be repaid before 30th Medom 1078 and the balance before 30th Medom 1080. Provision was also made in that document for payment of the value of improvements due to the mortgagee as per the terms of Ext. B, the otti deed. Defendant 1 however found himself unable to redeem the otti and on 29.3.1090 he conveyed his rights under Ext. C to his mother, the ottidar as per Ext. P. On the death of the mother defendants 1 to 3 succeeded to her estate and they are now the persons entitled to the rights under Exts. B and C. Defendants 4 to 20 were impleaded in the suit on the ground that they had obtained some interest over the properties under defendants 1 to 3 or their mother.

(3.) In her plaint the plaintiff offered to pay Fs. 7000 towards the mortgage money due under the two documents (Exts. B and C) and Fs. 2850 towards value of improvements. The plaint averred that out of five acres and fifty seven cents comprised in item 1, one acre and eighty cents alone had been converted into wet land and that the mortgagee had not widened the canal as per the stipulation made in the otti deed. It was admitted that the culvert had been constructed. According to the plaintiff as all the improvements specified in Ext. B were not effected, towards value of improvements the defendants were not entitled to anything more than the rateable proportion of the Fs. 5000 earmarked for that purpose in that document and such proportionate value was estimated in the plaint at Fs. 2850. The plaint also stated that the mortgagee and defendants 1 to 3 had committed waste on the properties and claimed damages in lieu thereof. Along with the plaint an amount of Fs. 12000 was paid into the Court, but the plaint contained no offer to pay the said amount or any portion thereof to the defendants before the suit was decided. The plaintiff wanted defendants 1 to 3 to remove the building shown as item 3 in the plaint schedule and claimed mesne profits of items 1 and 2 from the date of the institution of the suit as also costs of the action.