M M PHILIP Vs. KUNJU KESAVAN

JUDGEMENT

(1.) THIS second appeal arises out of a suit for redemption of a mortgage. The plaint property originally belonged to one Bhagawathi parameswaran, who is now dead, and was mortgaged by him to Krishnan Marthandan on 5-5-1091 M. E. for 3500 fanams by Ext. A (copy), an the suit was for redemption of this mortgage. The plaintiff's case was simple, namely, that the mortgage right is now vested in defendants I to 3 on account of a sub-mortgage and assignments and Bhagawathi parameswaran had given the equity of redemption to his wife, Bhagawathi Valli, who died on 4-9-1105, by a settlement deed, Ext. III, dated 9-3-1103, and after bhagawathi Valli's death the equity of redemption had devolved on her son's wife, Meenakshi, and grand-son. Vasudevan, and they had executed an assignment, ext. B dated 12-4-1123 in favour of the plaintiff conveying the said right to him and he was therefore entitled to redeem the mortgage and recover possession of the property. Bhagawathi Parameswaran and Bhagawathi Valli had only one son, Parameswaran sivaraman. He left his home in 1096 after he married Meenakshi and his son, vasudevan, was born, and he has not been heard of, according to the plaint allegations, after 1103 and so he must be deemed to have died after 1108. Bhagawathi Parameswaran and Bhagawathi Valli were Ezhavas and according to the plaintiff, after Bhagawathi Valli's death on 4-9-1105 , the equity of redemption of the plaint property devolved on Meenakshi and Vasudevan who were the only legal representatives and heirs of Bhagawathi Valli and Sivaraman.

(2.) KRISHNAN Marthandan, the original mortgagee, was the husband of Bhagawathi Parameswaran's sister. His children, i. e. , parameswaran's seshakars, brought a suit, O. S. No. 36 of 1100 of the Trivandrum district Court, for maintenance against Bhagawathi Parameswaran and obtained a decree, Ext, E. on 26 -7-1101. By Ext. III, by which Bhagawathi Parameswaran had given the equity of redemption of the plaint property to his wife, bhagawathi Valli, he had given also another property to his grand-son, vasudevan. The decree-holders in O. S. No. 36 of 1100 attached both the plaint property and the property given to Vasudevan by Ext. III in execution of their decree. As regards the plaint property Bhagawathi Valli's sister, Bhagawathi nani, and Nani's daughter, Gouri, filed a claim petition objecting to the attachment and contending that, before the attachment, Bhagawathi Parameswaran had gifted the property to Bhagawathi Valli by Ext. III and that they were bhagawathi Valli's heirs and on her death the property had devolved on them. By the order, Ext. F dated 7-11-1108 , the execution court upheld this claim. Bhagawathi Nani and Nani Gouri also filed a suit, O S. No. 746 of 1108 of the Trivandrum Munsiff's Court, for redemption of the mortgage, Ext. A. At the time of the institution of that suit krishnan Marthandan, the mortgagee, was alive and he was defendant 1 therein. Bhagawathi Parameswaran was defendant 2, and the sub-mortgagees defendants 3 and 4. The questions whether Bhagawathi Valli's son, Sivaraman, was alive or dead at the time of the institution of the suit and whether he had pre-deceased bhagawathi Valli or had survived her were raised in that suit, and the first court dismissed the suit holding that Sivaraman was still alive and had not been shown to be dead and that therefore Bhagawathi Nani and Gouri had not derived any right to the plaint property on Bhagawathi Valli's death. Ext. K is a copy of the judgment dated 19-11-1110 dismissing the suit. In the appeal against Ext K. Judgment the District Judge held that the contending parties in the suit had not been able to prove that Sivaraman died subsequent to bhagawathi Valli's death and said that he would draw a presumption under S. 114 of the Evidence Act that Sivaraman was not only dead but that he had died before Bhagawathi Valli died; and as a result of this finding he held that, under the provisions of the Ezhava Act, Bhagawathi Nani and Nani Gouri were entitled to one-half of Bhagawathi Valli's assets and the other half had devolved on her husband, Bhagawathi Parameswaran. Consequently, he gave a decree to Bhagawathi Nani and Nani Gouri for redemption and recovery of possession of one-half the plaint property, and this decree was confirmed in special appeal by the High Court. Exts. L and M are the copies of the judgments of the District Court and the High Court respectively. After Bhagawathi Valli's death the decree-holders in O. S. No. 36 of 1100 again attached the plaint property on 18-4-1113 in execution of their decree on the basis that it then belonged to Bhagawathi Parameswaran, and they also purchased it in execution of their decree on 3-4-1114, and obtained symbolical delivery of the equity of redemption on 7-4-1115. They had already obtained the mortgage right by right of inheritance to the mortgagee, KRISHNAN Marthandan, who was their father. Exts. N, O and P are copies of the attachment schedule, the sale diary, and the delivery kychit respectively. On 1-7-1121 defendant 1 took Ext. R sale deed for the plaint property from KRISHNAN Marthandan's children and Nani Gouri and her son. Bhagawathi Nani had died before the date of Ext. R and on her death her rights had devolved on Nani Gouri and her son. The claims of both sets of parties, i. e. , KRISHNAN Marthandan's children's claim on the one hand and the claim of Nani Gouri and her son on the other, were recited in Ext. R, and it was stated in the sale deed that both sets of persons were conveying all their rights to defendant 1. Subsequently, on 12-4-1123, plaintiff took Ext B from vasudevan and his mother, Meenakshi. It was executed on the footing that the equity of redemption, which Bhagawathi Valli had obtained by Ext. III, had devolved after her death on Meenakshi and Vasudevan.

(3.) ON these contentions so many as 18 issues were raised for trial by the first court. Defendant 1 sought to meet the alternative case set up in the replication by proving that Bhagawathi Valli had been exempted by the Government under S. 33 of the Travancore Ezhava Act III of 1100 (referred to hereinafter as the Ezhava Act) from the operation of the provisions in the said act relating to intestate succession - his case being that so far as intestate succession was concerned Bhagawathi Valli was, on account of this exemption, governed by the rules of ordinary Marumakkathayam Law and not by the provisions of the Ezhava Act, and Vasudevan was not therefore her heir; and that as the plaint property, though Makkathayam property was her separate property, vasudevan had not obtained any right to it after her death.