AMBA THAMPURATTI Vs. KERALA VARMA THAMPURAN

JUDGEMENT

(1.) THE 2nd defendant is the appellant. Originally there were only the plaintiff and defendants 1 and 2 on the party arrary. On the death of the 1st defendant, defendants 3 to 6 were impleaded in the case as additional defendants. Subsequently, the fourth additional defendant died and the seventh additional defendant was added as his legal heir. All these persons are the members of the Panthalam Kottaram. THE plaintiff stated that the plaint property belonged to Valia Koikkal, the tarwad of the plaintiff and defendants, that the 1st defendant was the karnavan and manager of that tarwad and that valia Koikkal tarwad, at the time of the suit, had three branches viz. , vadakkae Kottaram, Srambikal and THEkkedam. THE plaintiff belonged to the srambikkal branch while defendants 1 and 2 belonged to the Vadakkae Kottaram branch. THE 2nd defendant was the 1st defendant's direct neice. THE 1st defendant had, on 31. 1. 1113, executed a superior mortgage for the plaint property for Rs. 1500. THE property was then outstanding on a mortgage for Rs. 1385. It was alleged that the document had no consideration to the extent of the additional amount said to have been received or given credit to and that this document, copy of which is Ext. K, was invalid and liable to be set aside. It was urged that the 1st defendant, by himself, was incompetent to execute this mortgage deed under the provisions of the Kshatriya Act, that the document had no consideration or family necessity, that the plaintiff or the other members of the family had not consented for the execution of the document, and that the 1st defendant's object was to create the evidence to show that the property belonged to his branch exclusively. It was, therefore, prayed that Ext. K. may be set aside to the extent of the additional consideration recited in the document.

(2.) THE 1st defendant died before filing any written statement. THE 2nd defendant contended that, as the plaintiff had filed the suit as a test case, he was to pay court fees on the market value of the property and that the property did not belong to Valia Koikkal. THE Panthalam family, because of the increase in the number of members, separated into two branches known by the names of Vliya Koikkal and Kochu Koikkal. Valia Koikkal again separated into two branches, THEkkedam and Vadakkeadom. THE plaintiff and defendants 1 and 2 belonged to Vadakkedam branch. THE Vadakkedam branch itself subsequently separated into four branches, Neerazhikettu, Naithalloor, Vadakkey kottaram and Srambikal. This separation took place even before 1000 M. E. THE 2nd defendant belonged to Vadakkae Kottaram sub-branch, and the plaintiff to srambikal. THE plaint property was acquired by Chithira Nal Ramavarma Thampuran of her branch, under a sale deed of 12. 7. 1032 for 1100 Razis. On his death in 1036, this property was inherited by the Vadakkae Kottaram sub-branch and no other branch had any right over the same. It was also contended that her branch karnavan Thiruvathira Nal Rajaraja Varma Thampuran had mortgaged it on 30. 1. 1071 under Ext. II, that there were subsequent mortgages on this property so that the total consideration came to Rs. 1385, that, on reciting Rs. 115 more, the plaint mortgage was executed in her favour with a direction to redeem the previous mortgage, that this sum of Rs. 115 had been reserved for improving the property and for meeting the expenses of registration, that the document was, therefore, supported by consideration and proper necessity, and that the plaintiff was not entitled to any relief.

(3.) SUIT O. S. 268 of 1115 was tried along with a similar suit O. S. 267 of 1115 filed by the same plaintiff. With the consent of the parties, the whole evidence was recorded in O. S. 267 of 1115, the second appeal from which is S. A. 152 of 1125. The evidence referred to here will be with reference to the documents exhibited in that case. The 2nd defendant had produced Exts. XIII and XIV in support of the title of her branch. They were said to be documents taken by Chithira Nal Thampuran in the year 1032.