GOVINDA WARRIER Vs. SANKARA KURUP

JUDGEMENT

(1.) The 1st defendant is the appellant. The second appeal arises out of a suit for redemption of a mortgage. The facts may be briefly stated as follows: The plaint schedule properties belonged to Thattarathu family and were mortgaged with possession in the year 1085 under Ext. J. The mortgage right now vests in the 1st defendant. The mortgagee had given the properties on Pathivaram lease and the lessee's rights vested in the plaintiff at the time of suit. The plaintiff had also taken assignment of a Melotti right executed by one Velayudhan Pillai Neelakanta Pillai of the Thattarathu family in favour of a stranger, directing redemption of the mortgage of 1085. On the strength of the Melotti right, the plaintiff instituted the suit. The main contention was that the Melotti was invalid as the same was executed by a junior member of Thattarathu family and that it was unsupported by consideration and tarwad necessity. The 1st defendant also claimed to have acquired the equity of redemption over the property. On these grounds he resisted redemption.

(2.) The 1st defendant in this case had instituted another suit O.S. 341/17 against the plaintiff for recovery of possession on the basis of the Pathivaram lease. The plaint allegations in O.S. 548 of 1117 constitute the defence in O.S. 341/117. The two suits were tried together in the Trial Court. O.S. 548 of 1117 was dismissed on the ground that the Melotti was executed by an incompetent person. It was also held that the 1st defendant was not entitled to question the consideration and necessity for the Melotti. The plaintiff in O.S. 548 of 1117 filed A.S. No. 517 of 1121 in the District Court of Mavelikara against this decree. His appeal was allowed on the ground that the 1st defendant mortgagee could not question the competency of the person who executed the Melotti. This Second Appeal is from the decree in A.S. 517 of 1121.

(3.) In the connected suit O.S. No. 341 of 1117, the Trial Court gave a decree for recovery of properties on deposit of the amount due under the Melotti. Mesne profits was also allowed from the date of deposit of such amount. The 1st defendant in that case filed an appeal in the District Court as A.S. 516 of 1121. The two appeals were heard together and it was held in A.S. 516 of 1121 that the plaintiff was not entitled to recover the property from the defendant. The plaintiff in O.S. 341 of 1117 has filed second appeal 12 of 51 from that decree. The two second appeals were heard together.