MADHAVAN NAIR Vs. RAMANKUTTY MENON

JUDGEMENT

(1.) This half a century old litigation has a chequered career, and the members of a tarwad are kept out of possession of the property which was mortgaged by their karnavan to his children for an amount of Rs. 50/-.

(2.) Defendants 1 and 2 are the appellants. They are entitled to 15/30 and 6/30 shares in the plaint schedule property which consists of two items of properties, item No. 1 being a nilam having an extent of 1.03 acres and item No. 2 a paramba having an extent of 1.34 acres. In a karar in the tarwad evidenced by Ext. A dated 27-6-1091 M. E. these two items of properties were set apart to the karanavan Govindan Nair for his enjoyment for life. It was provided in the document that for the medical expenses during his lifetime, he is entitled to raise an amount up to Rs. 50/- either by a possessory mortgage or by a simple mortgage, if the other members do not contribute towards the same, Thereafter the tarwad was partitioned into four branches on 20-7-1095 M. E. Under Ext. B possessory mortgage dated 24-8-1101 M. E. the karnavan Govindan Nair executed a mortgage in favour of his children for Rs. 50/-. The total rent of the properties was fixed at 30 paras of paddy and Rs. 2/-, out of which 8 paras of paddy and Rs. 1/- was to be appropriated towards interest; and the residual rent payable by the mortgagee was 23 paras of paddy and Rs. 1/- per annum. Thereafter by an assignment dated 19-12-1119 M. E. the Ist defendant obtained the rights of defendants 2 to 21 and be filed a suit O. S. No. 85 of 1120 M. E. before the Irinjalakuda Munsiff's Court for redemption of the mortgage. A decree for redemption was passed on 28-1-1122 ME. That decree was ultimately confirmed by this Court in S. A. No. 6 of 1124 and it was held that the plaintiff is entitled to past profits of 22 paras of paddy plus Re. 1/- from 30-7-1112 M. E. till the date of suit in 1120 M. E. and after the deposit of the mortgage money and the value of improvements, the profits were fixed at 72 paras plus Rs. 40/-. At that juncture the 1st respondent herein the 1st plaintiff got an assignment of the rights of plaintiffs 2 to 7 in the properties and he filed the suit for partition by metes and bounds claiming 16/30 shares for all the plaintiffs together including himself In the meantime, the 1st plaintiff became the absolute owner of the entire mortgage right as well. The 1st defendant herein also claimed share in the property by virtue of his purchase of the rights of some of the members. On 27-8-1955 a preliminary decree was passed in this suit by which the 1st plaintiff was declared entitled to 9/30 shares, 1st defendant to 15/30 shares and the thavazhi of the 18th defendant to 6/30 shares. It was further provided that the accounting between the parties in regard to the mortgage, profits etc. will be worked out in the decree for redemption in O. S. No. 85 of 1120. In the meanwhile, the execution petition filed in O. S.85 of 1129 was held to be barred by limitation and ultimately that finding was confirmed by this Court on 6-2-1962 in S. A. No. 125 of 1958. In the light of the above finding, the application for passing a final decree M. P. 777/1961 was dismissed by the Trial Court against which the 1st appellant filed C. R. P. No. 914 of 1962 before this Court. By order dated 6-3-1964 this Court held that the rights of parties can be worked out in this suit itself by passing a second preliminary decree. This Court adopted that course in order to avoid multiplicity of suits. Accordingly the dismissal of the final decree application was set aside and the lower court was directed to pass a second preliminary decree as indicated in the order. Thereafter, the matter came up before the Trial Court and on 21-9-1964 an agreed preliminary decree was passed which provided:

(3.) Counsel for the appellants contended that the view taken by the court below that the 1st plaintiff is entitled to fixity of tenure being a deemed tenant under S.5 of the Kerala Land Reforms Act is erroneous. He further contended that in order to attract S.5 of the Kerala Land Reforms Act a person must be in possession of a property as a mortgagee as on 1-4-1964 on which date the Act came into force and in the facts and circumstances of the case the 1st plaintiff was not a mortgagee in possession as on that date. In support of his contention he raised the following four points for consideration: -