RAJAVARAMA THAMPAN Vs. MATHAI

JUDGEMENT

(1.) The plaintiff in O. S. No.15 of 1121 of the District Court of Anjikaimal is the appellant before us. He is a member of a divided branch of the Koratti Swaroopam (hereinafter called the tarwad) and the suit, as stated in the words of the opening paragraph of the judgment under appeal, was for a declaration that the decree and sale of the suit properties in O.S. No. 308 of 1111 of the Irinjalakuda Munsiffs Court and their basic debt and mortgage evidenced by deed No. 1554 of 1104 of the Chalakudi Registry are binding neither on him nor on his branch, and for their surrender by defendants with mesne profits, past and future.

(2.) The plaintiffs tarwad obtained the properties by Ext. AJ, the award decree dated 23.7.1104 in O.S. No. 172 of 1101 of the Anjikaimal District Court and Ext. AF is a certified copy of the usufructuary mortgage deed of 21.2.1104 on the basis of which O.S. No. 308 of 1111 was filed. Ext. AF was for a sum of Rs. 475/- and was executed by four members of the tarwad, Kunhikitavu Thampan, his brother Kavu Thampan, his sister Kunhipilla Thampatti and her eldest son. What was mortgaged to the 1st respondent (1st defendant) was the mortgage right under Ext. AG of 22.11.1080 which Kunhikitavu Thampan had purchased under document No. 178 of 1092 of the Chalakudy Registry (and which he had already dealt with under the mortgages, Ext. S dated 9.3.1099, Ext. T dated 22.12.1101, Ext. P dated 27.10.1102 and the pattomchit Ext. AL dated 27.10.1102) and equity of redemption over the seven items of property described in the schedule to Ext. AF; and what was actually sold in pursuance of the decree in O.S. No. 308 of 1111 were the items described in the schedule to the present plaint which except to an extent of 2 acres and 24 cents in item 3 were not included in Ext. AG and Ext. AF. As stated by the lower court there is no indication in the document that the rights under Ext. AG, taken assignment of in 1092 from the original mortgagee were intended to enure or had enured to the benefit of any but Kunhikitavu Thampan himself, that Ext. AF had been executed on behalf of any group or individuals other than its four executants, or that the consideration therefor had been borrowed for the needs or benefits of any but its executants or any or more of them. After noticing the circumstances which were urged in favour of the contention that the rights under Ext. AG might have been taken by Kunhikitavu Thampan for and on behalf of his tarwad and that the money borrowed under Ext. AF might have been borrowed and used for tarwad purposes the learned District Judge proceeded to deal with the matter as follows:-

(3.) The economic consequences of the two karars are clearly brought out in the statements filed by the learned counsel for the appellant which reads as follows:-