RAMAN PILLAI PARAMESWARAN PILLAI Vs. MATHUNNY AIYAPA

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption. One Raman Raman of Kaleekal house had mortgaged the plaint property to the father of defendant 1 in 1066 and also executed in his favour two puramuries in 1078 and 1091. Ext. B is a copy of the mortgage deed, and Exts. C and D are copies of the puramuries of 1078 and 1091. In 1081 there was a partition in Raman Ramans tarwad. Ext. A is a copy of the partition deed. Raman Raman was the sole surviving member of his thavazhi, and therefore, all that he got in the partition (Ext. A) was only a life interest in some properties, and he was grouped with another thavazhi which had female members and which, for the sake of convenience, will be referred to in this judgment as Branch 2. There were two other thavazhies with female members in the tarwad, and they will be referred to in this judgment as Branches 1 and 3. To these thavazhies also were allotted two male members, one for each thavazhi, who were given in the partition only life interest in certain properties. There was a provision in the partition deed that to the makkathayam properties of each branch as well as the self acquisitions of the members of each branch the other branches and the members of the other branches will have no right at all and that the self acquisitions of each member would devolve after his death on the members of his branch. The plaint property was a puduval registry in the name of Raman Raman; and, according to the plaintiffs, it was his self acquisition. After Raman Ramans death a partition was effected by the members of Branch 2 in 1103 dividing the properties they got under Ext. A as well as the properties they got from Raman Raman under the above provision. In this partition (Ext. E) the equity of redemption of the plaint property fell to the share of one Parameswaran Nair, and he sold the same to the plaintiffs by two sale deeds, Exts. F and G, in 1119. On the strength of Exts. F and G the plaintiffs brought the suit, which has given rise to this appeal, for redemption of Ext. B mortgage and Exts. C and D puramuries.

(2.) Defendants 2 to 7 are members of branch 1. Defendant 2 contested the suit on behalf of that branch. He contended that the plaint property was not Raman Ramans self acquisition, that Raman Raman was the karnavan of the tarwad and the plaint property was tarwad property, that in any case, after Raman Ramans death, the property devolved not merely on the members of Branch 2 but on the members of the entire tarwad including the members of branches 1 and 3, that under the provision in Ext. A relating to tarwad properties which were outstanding on mortgage at the time of the execution of that partition defendant 2 had redeemed Exts. B, C and D and was in possession of the plaint property, and that the suit was not therefore maintainable. He also claimed value of improvements in the event of the plaintiff being found entitled to redeem the mortgage.

(3.) Finding that the plaint property was tarwad property and not the self acquisition of Raman Raman and therefore, under the terms of Ext. A, any member of the tarwad was competent to redeem the mortgage and that, under the said term, defendant 2 had already redeemed the mortgage and the suit was not therefore maintainable the trial court dismissed the suit. The lower appellate court found that the plaint property was not tarwad property but Raman Ramans self acquisition; but it held that, on the death of Raman Raman who was the sole surviving member of his thavazhi, his properties devolved not merely on the members of Branch 2 but on all the members of the tarwad including the members of branches 1 and 3 and that, therefore, branch 2 was entitled only to one third of the equity of redemption. As a result of these findings it further held that Ext. E partition and Ext. F and G sales were valid to the extent of one third right in the plaint property and gave a decree to the plaintiff in the following terms: