ANANTHAYYA GOWDER Vs. SAMA GOUNDAN

JUDGEMENT

(1.) Defendants 1 and 3 in O.S. 183/71 on the file of the Munsiff's Court, Kalpetta are the appellants in S.A.918/80 and 6th defendant in the same case is the appellant in S.A. 979/80. The suit was filed by the plaintiff for redemption of Ext.A1 mortgage executed on 10-3-1925 with a term of 12 years. Defendants 1 and 3 contended that the plaintiff is not having any subsisting title since the equity of redemption of the property was sold in court auction and purchased by the 1st defendant in 1940. They further contended that the suit is barred by limitation under Art.61(a) of the Limitation Act. Defendants 5 and 6 resisted the suit by claiming fixity of tenure under the Kerala Land Reforms Act. The Trial Court accepted all these contentions and nonsuited the plaintiff. In A.S. 55/76 filed by the plaintiff, the District Judge Kozhikode reversed the finding of limitation and held that the court sale relied on by defendants 1 and 3 affected only 1/2 right over the property. The 1/2 right of the plaintiff and his mother was held unaffected by the sale. Tenancy right claimed by defendants 5 and 6 was not at all considered. Allowing the appeal, a preliminary decree for partition and redemption of 1/2 right in the plaint schedule properties was given to the plaintiff. Value of improvements was directed to be decided in the final decree proceedings. That is how the second appeals happened to be filed.

(2.) The parties are admittedly followers of the Hindu Mitakshara law. The ancestors were Krishna Goundan and Tripti Goundan to whom the properties belonged. Fourth defendant is the son of Krishna Goundan and plaintiff is the son of Tripti Goundan. Plaintiff's mother is one Paddy Avva. Krishna Goundan and Paddy Ayva (Paddy Avva also acting as guardian of the plaintiff) mortgaged the properties to one Gopalan Goundan. who sub-mortgaged the same under Ext. B1 to the 1st defendant on 16-6-1932. They took back the properties on lease from the 1st defendant by Ext. B2 dated 6-6-1938. The heirs of Gopala Goundan assigned the mortgage right in favour of the 1st defendant who was already the sub-mortgagee. They again took back the properties on lease from him. The fact that some of the properties are outstanding on lease is mentioned in Ext. B2 itself.

(3.) The 4th defendant has taken a loan from Panamaram Cooperative Society and mortgaged the properties in favour of the society. For realisation of the amount there was an award in favour of the society. In execution of the award the properties were sold on 12-12-1939 and purchased by the 1st defendant evidenced by Ext. B3 sale certificate dated 18-8-1940. Exts. B4 and B5 are the pattas granted to him. It was on the basis of these sale certificates that the 1st defendant claimed absolute title because by earlier documents the mortgage and sub-mortgage rights devolved on him. The plaintiff contended that the document executed by the 4th defendant was not for joint family necessity or consideration and at the best the sale would affect only 1/2 right of Krishna Goundan.