KARTHIYAYANI Vs. CHEERAM PENNU

JUDGEMENT

(1.) The short question for decision in the second appeal is whether one Kochaiyan Krishnan, the father of respondents 1 and 2, was the last sole member of the Kanjirathumkal tarwad or whether the 1st appellant was also a member of the said tarwad. The lower courts have given conflicting verdicts on this question, the Trial Court holding that it was not sufficiently established that Krishnan was the last sole member and the lower appellate court taking the contrary view that Krishnan was the last sole member of the tarwad.

(2.) The suit was for redemption of a mortgage of 1089 evidenced by Ext. A executed by Kochaiyan Krishnan in favour of the 1st defendant, the other defendants being persons in possession. The plaintiff respondents alleged that Krishnan was the last sole member of the Kanjirathumkal tarwad and that after his death, they, who are the daughters of Krishnan, were entitled to the equity of redemption. Defendants 9 and 10, who are the appellants in the second appeal, contested the suit on the main allegations that the 9th defendant was also a member of the Kanjirathumkal tarwad; that Krishnan was not the sole member thereof; and that after the death of Krishnan the 9th defendant was the person entitled to the property and not the plaintiffs, who were only the personal heirs of Krishnan. The Trial Court, accepting the contention of the defendants, dismissed the suit; but on appeal the lower appellate court reversed the said decision and decreed redemption. The lower appellate court further directed the contesting defendants to remove items 2 to 4, which are sheds standing on the property, within two months of the receipt of records in the Trial Court. It is this reversing judgment of the lower appellate court that is being questioned in the second appeal.

(3.) The short question, as I have already mentioned, is whether Krishnan was the last sole member of the Kanjirathumkal tarwad. P. Ws. 1 to 3, who are neighbours, have given evidence to establish the case of the plaintiffs, that their father was the last sole member of the tarwad. The oral evidence of these witnesses has been read out to me and I do not think there are any serious discrepancies in their evidence so as to persuade me to discard the testimony. This evidence is fully corroborated by the recitals in Ext. B of the year 1075, which is a copy of the Settlement enquiry in respect of the plaint property. In this document one Aiyappen gives a statement. He says that the original Thandaper holder was his uncle, who had three sisters, namely Chacky, Kali and Nangeli. He states further that Chacky had two children, his brother Narayanan and himself; that Kali had two children, Kittan and Neeli; and that Nangeli had only one daughter Acharu. He states further that patta may be issued in the names of the three branches of Chacky, Kali and Nangeli. On that basis patta appears to have also been granted in the names of Aiyappen, Kittan and Acharu. Therefore at the time of Ext. B the members of the Kanjirathumakal tarwad were only those persons mentioned in that document.