GANAPATHI BHATTA Vs. UMAVATHI

JUDGEMENT

(1.) Second Appeal by defendants 1 to 5.

(2.) This appeal has arisen in a suit for redemption of a usufructuary mortgage, evidenced by Ext. P 6 dated August 30, 1879. The appellants, defendants 1 to 5, are the present mortgagees under Ext P 6. That mortgage was executed by Madanakke and her two sons, Marappa and Subbappu. After the death of the former two, Subbappu executed a puisne mortgage evidenced by Ext. P 15 in favour of Pw. 8, whose rights by successive assignments devolved on the present plaintiff. It is by virtue of the title under the said puisne mortgage that the plaintiff has instituted the suit for redemption of the properties from the appellants. Though various contentions had been raised in defence, some of them have been concluded by prior proceedings. When the suit was before the Madras High Court in S. A. No. 1009 of 1948 their Lordships overruled the plea of limitation and held the suit to be within time under Art.148 of the Limitation Act, 1908 So also, the contention that Subbappu, who executed Ext. P 15, was not the same as Subbappu who executed Ext. P 6 is concluded by the concurrent findings of the Courts below, supported by the evidence of Pw. 6 and Pw. 8. The question of compensation for improvements has been left open by the lower appellate court, to be reassessed under the Kerala Compensation for Tenants Improvements Act, XXIX of 1958. The cross objections of the respondent plaintiff challenging the conversion of paddy fields into garden lands being an improvement may be decided at the reassessment of compensation for improvements. The questions that remain for consideration are (1) the validity of the puisne mortgage executed by Subbappu & (2) whether Ext. P 6 mortgage entitles to a fixity under the Kerala Land Reforms Act I of 1964.

(3.) Counsel relied on Exts. D 20 to D 23 to show that Subbappu had nieces and was not therefore the last survivor of his family. The parties are governed by Aliyasanthanam law, which follows the matrilineal system of succession as in Marumakkathayam. If Subbappu was the last survivor of his line and had nieces in the collateral line only, still the latter may be referred to as his nieces with right to succeed him. But among the documents relied on, Exts. D 20 to D 23, there is none in which Subbappu has named anybody as his niece. Exts. D 22 and D 23 are the plaint and judgment in O. S. No. 178 of 1932 filed by four persons asserting themselves to be members of Subbappus family. From that fact, a finding that Subbappu had nieces in his line cannot be inferred In the lower appellate court, Mr. M. A. Krishna Rao, counsel for the present appellants (who were respondents 1 to 5 there), has filed a genealogical tree (marked Ext. D25) which shows clearly that Madanakke had only three sons, and no daughters. The two persons whom the appellants, in the course of their evidence, put as sisters of Subbappu are shown in Ext. D 25 as members of a collateral branch only. The present appellants cannot disown Ext. D 25, and that is conclusive that Subbappu was the last member of his line, though the family has other members.