GOURI KUNJAMMA Vs. KALU AMMA

JUDGEMENT

(1.) THIS second appeal was originally filed as a Civil miscellaneous appeal but was later converted into a second appeal on the application of the appellant. The second appeal arises from a suit for redemption of a mortgage Ext. D dated 17. 1. 1096 executed by deceased Easwara pillai Krishna Pillai husband of the 1st plaintiff and father of the 2nd plaintiff in favour of his mother Thonnamma. Thonnamma had another son Raman pillai who was dead on the date of the suit. Defendants 1 to 7 are the children of Raman Pillai. Krishna Pillai died in the year 1096 and Thonnamma died some time later. After the death of Thonnamma, Raman Pillai gifted the property to his wife and children under Ext. V dated 28. 7. 1101. The plaintiff's case was that the plaint property was the self-acquisition of Krishna Pillai and that on his death the equity of redemption devolved on them. They also claimed one-half of the mortgage right alleging that the same had become vested in them on thonnamma's death. The suit was accordingly brought for redemption of the mortgage on payment of one-half of the mortgage amount. Defendants 8 and 9 were mortgagees under Defendants 1 to 7. Defendants 2, 8 and 9 contested. They contended that the property did not belong to Krishna Pillai but to the tarwad consisting of Thonnamma, Krishna Pillai and Raman Pillai and that it devolved on Raman Pillai after the death of Thonnamma. The status of the plaintiffs as wife and son of Krishna Pillai was also denied. It was also contended that the suit was barred by limitation. The trial court found that the plaintiffs were the heirs of Krishna Pillai, that the equity of redemption devolved on them on krishna Pilla's death as the property was his self-acquisition and that they were entitled to redeem the mortgage on payment of the mortgage amount of 4900 fs. and the value of improvements which was assessed at Rs. 909 Chs. 23 Cash 12. On appeal by Defendants 8 and 9, the findings that the two plaintiffs were the wife and son of Krishna Pillai and that the property was the private acquisition of Krishna Pillai were upheld. It was also found that since Krishna pillai died before the passing of the present Nair Act, one-half of the equity of redemption devolved on his tarwad. Defendants 1 to 7 were thus found to be entitled to one-half of the equity of redemption. The decree of the trial court was accordingly modified and the plaintiffs were given a decree for recovery of one-half of the property on payment of one half of the mortgage amount and the value of improvements on the one-half property that would be allotted to them in division. Defendants 8 and 9 have preferred this second appeal from the decree of the lower appellate court.

(2.) THE findings that the plaintiffs were owners of one-half of the equity of redemption and that the property was the self-acquisition of Krishna Pillai were not disputed in second appeal. THE points urged were that the effect of the decree of the lower appellate court was to convert a suit for redemption into one for partition and that by passing a decree for recovery of one-half of the property, the appellants were deprived of the opportunity of raising such contentions as would have been open to them if the plaint had been amended. It was also contended that in a properly framed suit for partition of Krishna Pillai's property other items also would have to be brought in and that the Marumakkathayam heirs of Krishna Pillai would be entitled to retain possession until such division was effected.