MATHEVAN SANKARAN Vs. NARAYANAN NARAYANAN & ORS.

JUDGEMENT

(1.) What are the circumstances under which partial redemption can be allowed is the question referred to the Division Bench by one of us. The mortgage sought to be redeemed (Ext. P1) was executed on 6-12-1094 in the erstwhile Travancore State to which the provisions of the Transfer of Property Act were extended only in 1951. The question to be decided Ss as to whether such mortgages can be partially redeemed in spite of the specific prohibition contained in the last proviso to S.60 of the Transfer of Property Act.

(2.) This appeal is by the plaintiff whose suit for partial redemption was concurrently dismissed by the courts below. The facts necessary for the disposal of the case are the following: The suit is for redemption of Ext. P1 mortgage dated 6-12-1094 ME in respect of eight items included therein, scheduled as A-schedule to the plaint. Fourteen items of properties including the plaint schedule properties belonged to Kuzhivilakam tarwad. The said tarwad executed a mortgage of these 14 items of properties under Ext. D1 dated 5-8-1088 ME. This was followed by Ext. P1 superior mortgage (Melotti) in favour of one Krishnan Appi and her son, the plaintiff who was a minor at that time. The mortgage money under Ext. P1 was 24500 Fanams made up of 12500 Fanams reserved for redeeming Ext. D1 mortgage: 7600 Fanams out of the mortgage money was paid out of tarwad funds of Krishnan Appi. 1400 Fanams paid by plaintiff's father for the benefit of the plaintiff and 3000 Fanams reserved to be paid to Eachambi Madevan, plaintiff's father to whom it was due from the mortgagors. Thereafter by Ext. P10 release deed dated 30-9-1097 ME. Ext. D1 mortgage was redeemed. Defendants 1 and 2 are the children of Krishnan Appi through her first husband Narayanan. The 3rd defendant is the son of the 2nd defendant and the 4th defendant is the daughter of 2nd defendant's deceased daughter. Plaintiff's father had another wife and eight children and he was a misradayi Ezhava. Ext. P2 dated 7-5-1100 ME is the partition deed among the Makkathayam and Marumakkathayam heirs of Eachambi Madevan. The 1st defendant was party No. 15 and plaintiff and his mother party No. 16 to that document 3000 Fanams which was recited to be paid to the plaintiff's father under Ext. P1 was allotted to the plaintiff and in f lieu of that D-schedule properties (two items) were allotted to the plaintiff. Those items were properties included In Sy. No. 1789 and plaint B-schedule property included in Ext. P1 mortgage. Thereafter, an anubhava udampadi (maintenance arrangement) was entered into in respect of tavazhi properties of Krishnan Appi and her children, evidenced by Ext. P3 dated 5-6-1102 ME. The 1st defendant - karnavan of the tavazhi was party No. 1 and he had a special claim of 5250 Fanams. In lieu of that amount D-schedule properties therein were allotted to him exclusively. D-schedule properties included 4 items of properties included in Ext. P1 mortgage. The normal share for maintenance was allotted to the 1st defendant under A-Schedule, B-schedule was allotted to the plaintiff and his mother's branch and C-schedule to the 2nd defendant and others. There were further provisions in that anubhava udampadi regarding devolution of the maintenance right after the death of the mother.

(3.) As Stated earlier, the equity of redemption in respect of Ext. P1 properties belonged to Kuzhivilakam tarwad who sold their rights to the members of the Thengil Azhikath Veedu. Ext. P4 is the partition dated 1-10-1114 ME in the Thengil Azhikath tarwad by which the properties included in Ext. P1 were allotted to various sharers. By the allotment and subsequent purchase Exts. P7 and P8, the equity of redemption over the plaint schedule properties vested in Krishnan, Sarada and Kunju Devaki and her children. They sold their right to one Ramakrishnan benami for the plaintiff under Ext. P5. Plaintiff filed O. S. No. 306 of 1954 against the benamidar for declaration of his title and possession. That suit was decreed and thereafter the benamidar Ramakrishnan executed Ext. P6 sale deed dated 24-2-1959 in favour of the plaintiff and he became entitled to the equity of redemption over the plaint schedule properties. Plaintiff further alleged that he is in possession of plaint A-schedule items 4 and 7 by Ext. P3 udampadi and that he is in possession or plaint B-schedule under Ext. P2 partition deed. It is further alleged by him that the mortgage right over the property in Sy. No. 1789 was surrendered to the allottee under Ext. P4 partition deed in the mortgagor's family. It is alleged that the 1st defendant executed Ext. P9 release deed dated 14-8-1122 ME of one of the mortgaged properties included in D-schedule to Ext. P3 to the allottee under Ext. P4 partition deed According to the plaintiff, in view of the partition in the family of the mortgagors and mortgagees and also on account of the release by the 1st defendant of one of the mortgaged properties under Ext. P9, the integrity of the mortgage is lost and he is entitled to partial redemption of the properties belonging to him on payment of the proportionate mortgage money. Accordingly the suit is filed for redemption and possession of items 1 to 3 and 5 and 6 and for extinguishment of the mortgage in respect of items 4 and 7 (which are already in his possession) by payment of a proportionate mortgage amount of 6352 Fanams.