KRISHNAN KESAVAN Vs. NEELAKANTARU PARAMESWARARU

JUDGEMENT

(1.) These appeals arise from O.S. No. 96 of 1118 on the file of the Temporary District Munsiff of Attingal. The suit was one for redemption of a mortgage Ext. A, dated 8-4-1065 executed by one Nangaya Antharjanam. By successive transfers the mortgage right became vested in the 1st defendant. Defendants 2 to 5 were alleged to be in possession under the 1st defendant. The plaintiff and his brother got the equity of redemption under a settlement deed Ext. D executed by Nangaya Antharjanam. They effected a partition in 113 and Ext. E is the deed of partition. The plaintiff got the equity of redemption of the plaint property under Ext. E and on the strength of that title instituted the suit. Defendants 1, 2 and 5 contested the suit. The 1st defendant contended that the plaint mortgage was an irredeemable one and that the plaintiff was not entitled to a decree for redemption. The 2nd defendant supported the 1st defendant and further contended that he was not in possession under the plaint mortgage but under an earlier mortgage of 1048 in favour of his Karanavan and that in any event he was entitled to the value of improvements. If; was also contended that the suit was barred by two earlier suits instituted by Nangaya Antharjanam. The value of improvements was seated to be Rs. 3500. The 5th defendant filed a written statement claiming independent possession of the property. According to him he was in possession except for an area of 1 acre of which the 2nd defendant had trespassed. He also claimed value of improvements. The 5th defendant died during the course of the suit and his legal representatives were impleaded as additional defendants 6 and 7. The Trial Court held that the mortgage was an irredeemable kanom and that the plaintiff was not entitled to a decree. The suit was accordingly dismissed. The plaintiff preferred an appeal to the District Court and the temporary Additional Judge reversed the decree of the Trial Court and allowed redemption holding that the mortgage was a redeemable one. The plaintiff was allowed to recover possession of property on payment of value of improvements as stated in the plaint. The 2nd defendant has preferred Second Appeal No. 2 of 1955 and the 9th defendant, Second appeal No. 39 of 1955.

(2.) The main question arising for decision in these Second Appeals is whether the mortgage is a redeemable one. Admittedly the property sought to be redeemed is not Jenmom land but Pandarapattom in tenure. The incidents of a Kanapattom transaction as provided for in the Travancore Jenmi and Kudiyan Act do not therefore apply to Ext A. No doubt the document provides for renewal at the end of 12 years and for payment of Adukuvathu at the time of renewal. It is open for parties to create irredeemable tenures in respect of even Pandarapattom property but in such cases there should be clear provision for enjoyment in perpetuity. So far as Ext.A is concerned there is provision for only one renewal. There is no indication that the property is to be enjoyed for ever by the mortgagee. The document itself is styled a mortgage deed and not Kanapattom. The question of redeemability of such transactions relating to non jenmom land has been considered in a number of reported decisions. Vide 1949 T. L. R.139, 1951 D. L. R.T-C 472, 1953 D. L. R. T-C. 603 and 1955 KLT 591 . According to these decisions the provisions for renewal and payment of Adukuvathu do not indicate irredeemability in the absence of a clear provision for permanent occupancy. The appellants rely on the fact that the Jenmi sued for renewal at the expiry of 12 years. She was entitled to claim such a renewal under the terms of Ext. A. The decree in that suit allowed the claim and further provided for another renewal at the expiry of 12 year . The Jenmi filed a second suit for redemption which was ultimately decided by the High Court in S.A.16 of 1105. Ext. C is the judgment in Second Appeal and it is seen that redemption was not allowed on the ground that the suit was premature, in view of the earlier decree. The decisions in these two suits are in my opinion insufficient to hold that the mortgage is an irredeemable one. Another circumstance relied on by the appellant is that in the settlement deed executed by Nangaya Antharjanam the plaint property was treated as one on which michavarom and other dues alone were recoverable. The plaintiff cannot be denied relief on this ground if the mortgage is a redeemable one and that question has to be decided on the terms of the deed which, as indicated earlier, do not support the plea of irredeemability. I therefore confirm the finding of the lower appellate court that Ext. A evidences a redeemable mortgage.

(3.) The 2nd defendant had a further contention that he was in possession not under Ext. A but under an earlier deed of 1048. The plaintiffs case was that the 2nd defendant was in possession under the 1st defendant The 2nd defendants counsel put a pointed question to the plaintiff in cross examination as to whether the 1st defendant had not sold the mortgage right to the 2nd defendant, and whether the latter was not thus in possession. This shows that the case of independent possession was without foundation and that the same was abandoned.