CHEERU Vs. MUHAMMAD

JUDGEMENT

(1.) In this Second Appeal by the defendants against a decree for the redemption of a mortgage, based on concurrent findings of fact, the only question which falls for determination is whether the plaintiff, who had purchased the rights of the illom which owned the mortgaged properties on jenmom in execution of a decree, can impeach a kanam, Ext. B-6, granted by the illom, as lacking in illom necessity or benefit. The learned counsel for the appellants relied on the decision of the full bench of this court in Mathew v. Ayyappankutty, 1962 KLT 61 , in support of the contention, that being a stranger to the illom the plaintiff cannot impeach the kanam. Mathew v. Ayyappankutty was a case of a private transferee impeaching a prior transfer as lacking in written consent of all the major members of the tarwad to which the property transferred belonged and as thereby offending S.21 of the Travancore Ezhava Act. A different view has been held in judicial decisions in respect of the rights of a purchaser in execution of a decree to impeach a prior transfer as lacking in tarwad necessity or benefit, notably in Chekku v. Puliyasseri Parvathy alias Amma Amma, AIR 1956 Mad. 634 . See also Madan Lal v. Chiddu, AIR 1930 Allahabad 852, Ramnath Balibhadra v. Sundarabai AIR 1948 Nagpur 290, and Shyam Behari Singh v. Rameshwar Prasad Sahu, AIR 1942 Patna 213. Reliance was placed on the observations of the full bench in Para.31 of the judgment at page 74 of the report, declining to adopt the dictum in Chekku v. Pulyasseri Parvathi alias Amma Amma. As observed, the Madras case dealt with the right of a purchaser in execution of a decree. This distinction between the rights of such a purchaser and of a private transferee did not arise before the full bench and was not necessary to be considered. I therefore hold, that the observations of the full bench referred to above do not govern the decision of the present case. Following the cases cited above, I hold that the plaintiff is competent to impeach the alienation as lacking in illom necessity.

(2.) The above is sufficient to maintain the decree under appeal, but the appellants have moved C.M.P. 7073 of 1961 to dispose of the case in accordance with the provisions of Act 4 of 1961. They have contended that by virtue of Ext. B-6, the impugned kanam, they bona fide believed themselves to be tenants and have been in occupation of the properties as such; to be more accurate, the plea is related to Ext. B49 as a kanam. The case has therefore to go hack to the first court for trial and decision on this point.

(3.) In the result, the decrees of the courts below are affirmed, except to the extent of reopening the suit for trial and decision on C.M.P. 7073 of 1961. The appellants having failed on the main question, will pay the costs of the plaintiff respondent in this Second Appeal. The case is sent back as directed.