NARAYANA MENOKI Vs. RAMAN NAIR

JUDGEMENT

(1.) This motion is by the 1st defendant in a suit by an otti-mortgagee of Malabar to enforce pre emption on sale of the equity of redemption, and the prayer is to revise an order of the Munsiff dismissing his petition to issue a commission to assess the market value of the equity of redemption payable to him. It is urged by counsel that the judgment in the case, reported in 1966 KLT 724 , has directed "a fair determination of the market price payable for the equity of redemption" and that therefore the issuance of a commission to assess such market price is imperative and the Munsiff "has no jurisdiction to dismiss the said petition," The Munsiff has observed "no right purpose can be served by taking out a commission to inspect the property to ascertain the value of the mortgagor's interest in the property as on 2 3 1953. ... the same can be proved by the petitioner by letting in oral evidence and by the production of documents by which sale of such rights had been effected in 1953 or earlier in relation to properties in the neighbourhood of the plaint property. The commissioner will not be in a position to furnish any data in respect of this apart from what would be gathered from documents and from the oral evidence of witnesses. The petitioner is therefore directed to let in such evidence as he can in respect of the claim for value of the equity of redemption ...." (2 3 1953 is the date of sale of the equity of redemption by the mortgagor-2nd defendant to the 1st defendant as per Ext. B2.)

(2.) The Bench judgment (1966 KLT 724), in its material part, reads: "The judgment of the learned Judge (Madhavan Nair J.) holding that the rules of Muhammadan Law are applicable to the exercise of the right of pre emption by an ottidar in Malabar has not been supported by counsel for the respondent on the grounds and reasons given therein, and we think, quite rightly. This would normally have resulted in the allowance of these appeals and the restoration of the decrees passed by the learned District Judge.

(3.) As regards the price payable to the petitioner, a new fixation may appear justified in the light of the devaluation of the current rupee (though it came to be only long subsequent to the Bench decision in this case) and the fall since 1953 in the purchasing power of the rupee, if that be proved by cogent evidence. In Naylor v. Yorkshire Electricity Board (1966 (3) WLR 654 C. A.) Lord Justice Salmon, with concurrence of Lord Justice Danckwerts, took note of the fall in the purchasing power of the pound by two and a half times between 1941 and 1964 and observed: