VENKITASUBRAMONIA IYER Vs. NARAYANAN

JUDGEMENT

(1.) The 1st defendant is the revision petitioner. The petition is to revise the finding on issue No. 5 recorded by the lower court. The suit was for redemption of two mortgages, Exts. A and B of 7.8.1091 relating to the plaint properties. The plaint properties which are S. No. 2236 which has an area of 3 acres and 72 cents and S.No. 2237 which has an area of 3 acres and 21 cents belonged in equal shares to the two branches of "Athiyara Matom". The 1st plaintiff is the manager of one of the branches known by the name of "Athiyara Matom" in Trivandrum, and the 3rd plaintiff is the manager of the other branch known by the name of "Kolloor Athiyara Matom". By an arrangement between these two Matoms, the eastern half of the property which is described in the plaint as A schedule was allotted to the 1st plaintiff's branch, and the remaining portion to the 3rd plaintiff's branch. Thus the A schedule property with an extent of 3 acres and 47 cents formed the eastern portion of S.No. 2236. The remaining 25 cents in that survey number and the whole of S.No. 2237 went to the share of the 3rd plaintiff's Matom. Exts. A and B related to the eastern half, and it was mortgaged for 8000 fanams. They had been executed in renewal of a previous mortgage of 1080. On 18.5.1120, a Melotti had been executed from the 1st plaintiff's branch in favour of one Krishnan Govindan Potti authorising him to redeem the mortgages of 1091. The 2nd plaintiff has taken an assignment of that right. In order that there might not be any dispute as to the property covered by Exts. A and B the other heirs of the 3rd plaintiff also had been made parties. A portion of the property belonging to the 3rd plaintiff is now being enjoyed by the 7th defendant. The improvements in the plaint A schedule property will come to 7000 fanams. The mortgagees had committed waste on the property and the plaintiffs wanted the same to be ascertained and set off. They also claimed the Karam and Michavaram provided for in the document.

(2.) Defendants 1 and 7 contested the suit. The 1st defendant denied the allegation that he was in possession under the mortgage deeds of 1091. His case was that his predecessor in interest was one Vellayambalam Narayana Iyer who obtained this property on 8.11.1102 in respect of the eastern half for Rs. 9900 from the father of defendants 2 and 6 and his brothers. Ext. I is that mortgage. He had also taken subsequently a sale deed Ext. II on 20.2.1120 for Rs. 11400/-. The western one half also had been mortgaged to Narayana Iyer on 9.5.1102 for Rs. 3250, and the equity of redemption over the same was subsequently purchased by him in court auction in execution of the decree in O.S. 559 of 1106 of the Trivandrum Munsiff's Court. The mortgage deeds of 1102 and the sale deed Ext. II of 1120 were executed on the basis that the executants were the full owners of the properties. The 1st defendant further stated that on further enquiry he had understood that the executants had obtained only a mortgage right in 1091 and that was in renewal of prior mortgages dating back to 1029, that his predecessor in interest was not aware of the limited right of the executants over the property, that he was however willing to be redeemed provided he was paid the amount due under the mortgage of 1102 and the further charges on the property on the basis of the lease deed taken by the mortgagor along with the value of improvements effected after 1029. He contended that the right to redeem the mortgage of 1091 was barred by limitation under Art.122 of the Limitation Act (Travancore). He wanted a decree as contended for him. The 7th defendant stated that he was an unnecessary party as the property in his possession was not the subject matter in this suit. Issues had been raised and the fifth issue was "whether the suit was barred by limitation as contended by the 1st defendant".

(3.) The Court below, after hearing the parties and after considering the documents produced before it, held that Art.122 of the Limitation Act would not apply to the facts in the present case. It is this finding that is sought to be revised.