MADHAVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE plaintiff is the appellant. He claimed the entire land acquisition compensation awarded for the acquisition of a part of the plaint property. This property was outstanding on mortgage with the appellant under Ext. P1 dated 31-11-1102. This mortgage was executed by the then owners of the property one Neelakantan madhavan. On his death, the property devolved on his heirs in accordance with the provisions of S. 16 of the Ezhava Act, III of 1100. A partition was entered into by certain persons mentioned in the partition deed, Ext. P3, on 27-11-1114 , and the plaint property was allotted to one Kunjupennu Panikkathy. She executed Ext. P. 4 sale deed in favour of the appellant-plaintiff on 22-3-1119. It is by virtue of Exts. P3 and P4 that the appellant lays claim to the equity of redemption of the plaint property and, therefore, to the entire amount awarded as compensation. This claim of the appellant was resisted by the respondents on the ground that on the death of the said Neelakantan Madhavan his property had devolved on his thavazhi and that the respondents are some members of that thavazhi, that Kunjupennu Panikkathy cannot have any exclusive right to the property, that the partition deed, Ext. P3, cannot affect their rights and that the sale deed, Ext. P4, was incompetent. THE court below held that the property belonged to the thavazhi of the respondents, that the sale deed, ext. P4, cannot bind the respondents, that there is no bar of limitation in challenging the validity of the deed in the petition that was moved by the respondents before the court below and therefore held that the appellant is entitled only to the mortgage money and that the amount payable towards the value of the equity of redemption must go to the respondents. THEse findings are challenged in this appeal. In fact this was challenged by two of the sons of the appellant, Krishnan Madhavan, who had preferred the appeal. He died and only two of his sons were impleaded as the legal representatives of the deceased appellant at that time. I disposed of the appeal after hearing counsel for the two sons of Krishnan Madhavan additional appellants 2 and 3 by my judgment dated 6-11-1962. THEreafter a petition, C. M. P. No. 8567 of 1962, was filed for setting aside the abatement of the appeal. It was said that the appeal had abated because all the legal representatives of the deceased, original appellant, were not brought on record. It was also prayed that the judgment may be set aside and the appeal re-heard. I allowed these prayers and the appeal has again come up before me for hearing.

(2.) THE first question to be considered is whether on the death of Neelakantan Madhavan the property had devolved on the tavazhi of neelakantan Madhavan. When I say 'tavazhi' I refer to the term as it is defined in sub-sections (3) and (4) of S. 4 of Act III of 1100. THEse definitions run thus: "4 (3 ). "tavazhi of a female' means a group of persons consisting of that female and her issue how low-so-ever in the female line, or such of that group as are alive. (4 ). 'tavazhi of a male' means the tavazhi of his mother. "

(3.) I therefore negative the first contention urged by counsel on behalf of the appellants.