AIYDROSE AMEEN PILLAI Vs. ABDULKHADER MALUK MOHAMMED

JUDGEMENT

(1.) The plaintiff whose name is Ameen Pillai Ayidross is the appellant. The plaint property belonged to one Thevan of Poottakuzhi house. He mortgaged it to two ladies by name Kali Kali and Kali Bhagavathi on 25.5.1067. In 1081, Kali Kali sub-mortgaged her one-half right to the 2nd defendants father for 700 fanams. Kali Bhaghavathi also sub-mortgaged the remaining one-half in 1086 to the identical party for the same amount. After the death of the 2nd defendants father, the 2nd defendant was in possession of the property, and that was leased out to the plaintiff on 20.10.1109 with a stipulation, that in case the sub mortgage right was assigned, it would be in favour of the plaintiff. An agreement was also executed on 15.12.1109 to this effect. Thus the plaintiff was in possession of the property as lessee. While so, on 21.4.1111, he took a mortgage Ext. A from the members of Thevans tarwad with a recital to redeem the mortgage of 1067. The suit is for the same. In the suit, he had also asked for the settlement of accounts with the 2nd defendant.

(2.) The 1st defendant, one Abdulkadir, contended that after the expiry of the term in the sub-mortgage in favour of the 2nd defendants father, the 2nd defendant had no right to execute any fresh document in favour of the plaintiff, that the superior mortgage relied on by the plaintiff was not executed by all the adult members of the Jenmis tarwad, that it was not supported by consideration and tarwad necessity, that it was a void document, and that he, as the assignee of the mortgage right of 1067, had filed O.S. 456 of 1111 for redemption of the sub mortgage from the 2nd defendant. It was therefore stated that the plaintiffs suit was not actuated by bona fides. The 3rd defendant who had taken an assignment of the sub-mortgage right in 1110 contended that the agreement to assign the sub-mortgage right to the plaintiff had not come into operation and that the plaintiff was not entitled to any relief.

(3.) The first court found that the plaintiff was in possession of the property as lessee of the 2nd defendant and his father, that the lease deed, and the agreement Ext. B were executed fraudulently and collusively, that Ext. A superior mortgage was opposed to S.22 of the Ezhava Act and as such, it was invalid, and that this suit was to be dismissed. O.S. 456 of 1111, the suit filed by the first defendant in the present case, was tried along with this case and decreed, allowing him to recover possession of the property on payment to the 7th defendant in that case (3rd defendant in O.S. 626 of 1112) the submortgage amount of 1400 fanams and value of improvements coming to 1355 fanams 1 Ch. 1 Cash. He was also ordered to deposit 540 fanams 2 ch. 5 cash as value of improvements due to the 2nd defendant (plaintiff in O.S. 626 of 1112).