SANKARA PILLAI Vs. AIYAPPAN NAIR

JUDGEMENT

(1.) At a partition in a tarwad, Neelakantan Nair the karnavan and a few others separated as a branch. Soon after the members of that branch in their turn entered into an arrangement of partition, the terms of which are evidenced by Ex. B. Neelakantan Nair separated alone. The other members got themselves split up into two sakhas with varying number of members in each sakha. Schedules A. B and C contained the properties which were retained by Neelakantan Nair. As regards the properties in the first two schedules, the deed expressly recited that Neelakantan Nair had only the right of enjoyment and that after his death the properties were to be divided between the two sakhas in proportion to the number of members in each. As regards the properties in Schedule C. Neelakantan Nair was given full title. So far the parties to the litigation are in agreement. Their difference relates to the nature and legal effect of the provisions made in Ext. B stating that the properties in the C schedule should, after the death of Neelakantan Nair be taken by the two sakhas in equal moieties. Neelakantan Nair died within a few years of the date of Ext. B. The two plaintiffs are members of one of the sakhas. Claiming under the above provision the members of the other sakha transferred a half right in the properties in favour of the 1st plaintiff. The 1st plaintiff claims the half right thus obtained for himself. Both the plaintiffs claim the other half as having devolved on their sakha and on its behalf. The suit is for redemption of a mortgage granted by Neelakantan Nair over the properties in the C schedule. The title to redeem relied upon by the plaintiffs is as above explained. The mortgage right ultimately became vested in defendants 5 and 6. They obtained a sale deed from Karthiyayani Amma who was the only issue of Neelakantan Nair, who left him surviving besides her, her mother who died not long after. The title that was conveyed by Karthiyayani Amma is the title to the equity of redemption possessed by Neelakantan Nair which is claimed to have been inherited by herself and her mother to which she became solely entitled on her mother's death. On the basis of this transfer of the equity of redemption, the 5th defendant who alone contested the case raised a plea that the plaintiffs have no title to redeem. The clause in Ext. B providing for the devolution of the interests of Neelakantan Nair on the two sakhas is it is contended repugnant to the absolute title given to him and therefore void in law. Another contention raised was that in the event of redemption being decreed, the value of improvements effected on the property by the mortgagee should be awarded as part of the price of redemption.

(2.) The 5th defendant is the appellant in this Second Appeal. Both the courts below concurred in finding against the plea raised by the appellant as regards the plaintiffs' title to redeem. Neither court however approached the question from the proper point of view. As already stated the parties are not at variance on the question of Neelakantan Nair's title. Both the parties agree that Neelakantan Nair obtained absolute rights over the property comprised in the C schedule. The only point at which they were at variance is whether the last portion of the deed noted above operates and if so what is its effect. It is obvious from the said portion read above that the deed indicates the intention of Neelakantan Nair that after his death his rights should devolve upon the two sakhas in equal moieties. It is therefore a testamentary disposition. No special form or words is necessary to constitute a testament. The requisite provisions of the Travancore Wills Act are satisfied in this case because the document is attested by two witnesses and it has been registered. The circumstance that the registry is in Book No. 1 and not in the Book appropriate for the registration of a will is not one that would invalidate the document.

(3.) The other question that arises in this second appeal relates to value of improvements. The mortgage sought to be redeemed is Ext. I. It authorises the mortgagee to dig tanks, to erect kayyalas (which is the expression used in this part of the country to connote protection walls) and Theppala which is the name given to the construction made for purposes of holding water drawn out of the tank before it is diverted through canals into the paddy flats. The document also permits the mortgagee to level the property and render it even for the purposes of cultivation. Some other items of improvements are also mentioned in a general way. As regards one item, namely a building, for which value is claimed the plaintiff contends that it is not an improvement to be paid for at all. This contention has been accepted by both the courts below and is the subject matter of the second appeal. The plaintiffs have filed a memorandum of cross objections taking exception to the enhancement of the compensation made by the District Judge over the value fixed by the Munsiff. As regards the building, the evidence shows that it is an unenclosed structure made up of pillers and a thatched roof. The purpose for which the structure was made was for extracting oil from lemon grass which defendants 5 and 6 were cultivating in a property adjacent to the properties sought to be redeemed in this case. The ground on which value is claimed for this structure is that the refuse of the lemon grass after extraction of oil, would be a good manure for cultivating paddy. It need hardly be stated it is an altogether irrelevant consideration. To constitute an improvement it should add to the value of the holding, should be useful to it, and consistent with the purpose for which the holding is mortgaged, demised, or leased. It is not contended on behalf of the appellant that the building in question is useful for any purpose connected with the holding. The 1st plaintiff, when examined, distinctly swore that the building in question is useless for the plaint property. No attempt is seen made in his cross examination to assail this position. There is also no evidence adduced on behalf of the defendants that the building is a proper adjunct to the plaint property or in any manner necessary or useful for its enjoyment. Under the circumstances I confirm the conclusion reached by both the courts below that the building in question is not an improvement to he paid for. Liberty is granted to defendants 5 and 6 to remove the building, within two weeks after the records reach the Trial Court.