ACHAMMA Vs. KOCHUPILLAI AMMA

JUDGEMENT

(1.) This second appeal is in a suit for redemption of a mortgage, Ext. A of the year 1048, the right under which became vested in the first defendant who has preferred this second appeal. The mortgage comprised the suit property and others and was given by the tarwad to which they belonged. The suit was instituted by the first plaintiff and was continued after his death by plaintiffs 2 and 3, two members of his tavazhy. The first defendant died after preferring this appeal and she is now represented by the additional appellants. The first defendant contended, that the tarwad became divided into two tavazhies, that she took a sale deed for the half share of the equity of redemption from one tavazhy and another sale deed from a member of the other tavazhy to which the plaintiffs belong, and that therefore the suit is not sustain able. It has been concurrently found by the courts below, that the first defendant became entitled by virtue of the sale deeds only to 7/12 of the suit property, that the plaintiff's tavazhy itself became divided by Ext. E, a partition deed of the year 1107, and that excluding 1/12 share purchased by the first defendant, the remaining members of the plaintiff's tavazhy are entitled to 5/12 of the equity of redemption of the suit property. The first court dismissed the suit on the ground, that there is no prayer for partition of 5/12 share of the property, and on appeal the Additional District Judge gave a preliminary decree for partition of such share and for redemption.

(2.) In second appeal it was contended for the additional appellants, that the tavazhy having become divided by Ext. E, the plaintiffs are not competent to redeem 5/12 share, and that if at all, the first plaintiff could have sued to redeem his 1/12 share only, but that, his widow and children not having been impleaded on his death, even this relief could not be decreed. When the first plaintiff died, plaintiffs 2 and 3 made an application C. M. P. 277 of 1125 for impleadment as additional plaintiffs and it was allowed by order dated 30th March 1950. By Ext. E, there was no partition by metes and bounds of the properties outstanding on mortgages. Although the parties became divided inter se, it was provided in Ext. E that so far as the mortgaged properties were concerned, any one or more of the members of the tavazhy might sue to redeem the mortgaged properties, which upon redemption, would be divided by metes and bounds between the sharers. It was in pursuance of this provision, that the first plaintiff instituted the suit for redemption of the whole of the suit property and not of his share only and plaintiffs 2 and 3 sought to continue it. I see nothing illegal or objectionable in the members of a tavazhy or tarwad, at the time of partition thereof, postponing the division by metes and bounds of properties outstanding with others on mortgage and providing that in the meanwhile, one or more of them might institute or continue legal proceedings and recover or redeem them. Indeed it is often reasonable and advantageous for them to do so. In this view, Velayudhan Nair v. Janaki (1957 KLJ 241) relied on for the appellants has no application. It was held in that case, that after a tarwad had become divided, one or more of the members thereof can no longer sue on behalf of the tarwad; apparently in the partition deed concerned in that case, there was no such provision for recovery of possession of the properties, I therefore hold, in agreement with the Additional District Judge, that the suit as laid by the first plaintiff on the basis of the provision in Ext. E is maintainable to the extent of 5/12 share and that on his death it could be continued by plaintiffs 2 and 3. The legal representatives of the first plaintiff had no right to come in, as the suit was not based on the individual or proprietary right of the first plaintiff to the exclusion of the other members of the tavazhy.

(3.) The next contention that the suit is not maintainable in the absence of a prayer for partition, is highly technical and cannot be entertained. The suit was for redemption of the whole property ; it could be decreed to the extent, redemption is permissible, even if it involves a partition of the property. Gouri Kunjamma v. Kalu Amma ( 1954 KLT 975 ) is a case in point. In the result, the second appeal is dismissed with costs. The objection memorandum is not pressed and is dismissed with costs.