SANKU KRISHNAN Vs. HARI PRABHU GOVINDA PRABHU

JUDGEMENT

(1.) These five appeals were heard together since common questions of law arise for consideration in these appeals.

(2.) With regard to the contention that the case would come within the purview of Act XXII of 1124, it was not pressed by learned counsel for the appellant since the kudiyirippu has not been registered as required by the provisions of that Act. The only question to be decided in this Second Appeal is whether the decree in this case comes within the purview of Act VIII of 1950. The document which was the basis of the suit was not produced either in the execution Court or in the lower appellate court. These courts proceeded on the basis of the provisions of the document contained in the decree. The appellant produced in this court the document which is the basis of the suit and also two other documents relating to the property in dispute. The respondents also produced in this court some documents relating to the property. All the documents were admitted in evidence. The documents produced by the respondents were marked as Exts. A, B and C and those produced by the appellant as Exts. I, II and III. Ext. I dated 14.6.1074 is a venpattom deed executed by the uncle of the defendants mother in favour of the plaintiffs family in respect of the decree schedule property. On 27.10.1083 the plaintiffs ancestor executed a pattapanayam, Ext.A in favour of the defendants mother. The lessees under Ext. I assigned their leasehold interest in favour of the defendants and their mother under Ext. II dated 13.11.1086. Subsequently the plaintiffs predecessor-in-interest executed a pattapanayam, Ext.III, on 17.2.1098 in favour of the defendants mother in renewal of Ext. A. The suit was brought on the basis of Ext. III for redeeming the property. The defendants contended that Ext. III created an irredeemable kanom and that therefore the suit for redemption was not maintainable. That contention was repelled by the Trial Court and the suit was decreed. The appeal filed from that decree was also dismissed.

(3.) It is argued for the respondents that the finding on the trial side that Ext. III is a redeemable mortgage and not an irrdeemable kanom is res judicata between the parties so far as the question in issue is concerned. We do not think that it is so. The question that was raised and considered on the trial side was whether Ext. III is a redeemable mortgage or an irredeemable kanom. The present contention of the defendants is that, although the demise under Ext. III is not an irredeemable kanom it is a redeemable kanapattom coming within the purview of S. 2 of Act VIII of 1950. The question that has to be decided in these proceedings is not whether the transaction evidenced by Ext. III is an irredeemable kanom or not but whether it is a kanapattom coming within the purview of S.2 of Act VIII of 1950. S.2 of the Act reads thus: