SANKARA PILLAI Vs. MATHUNNI ITTIERA

JUDGEMENT

(1.) The appellants are the plaintiffs whose suit for the redemption of a usufructuary mortgage has been dismissed by the court below on the preliminary finding that it is premature.

(2.) Ext. B is a copy of the mortgage in question. It was executed in favour of the 1st defendant on 27 2-1121 M. E. (13-10 -1945) by the karnavan and senior anandaravan of a Mana governed by the Travancore Malayala Brahmins Act (Act III of 1106). Before its registration on 4-5-1121 (18-12-1945) the entire consideration of Rs. 7500/- was paid by the discharge of debts binding on the Mana and secured on its properties. Of the 22 items of properties comprised in the mortgage, possession of five items, of which the Mana was in actual possession, was made over to the 1st defendant. For the rest, the 1st defendant was required to evict the tenants in actual possession, filing suits, if necessary, within six months of the registration of the document and adding the expenses thereof to the mortgage money; and the mortgage was to run for a term of 12 years after he had reduced the properties in the hands of the tenants to his possession. (It would appear that one of the items of properties was held by a stranger on kanom. He could not, in any event, have been evicted. But this seems to have been overlooked). The 1st defendant accordingly proceeded to reduce the properties to his possession. He filed 13 suits for the purpose and within three years of the mortgage was able to obtain actual possession of all but five items of properties. Then, by reason of Travancore-Cochin Act VIII of 1950, which staved the eviction of tenants he was prevented from proceeding further. By succeeding enactments the stay has been continued, and it is clear that there is no prospect of the 1st defendant ever being able to obtain actual possession of the remaining five items as contemplated by the mortgage deed.

(3.) By Ext. A dated 22-1-1952, the two plaintiffs brought the properties covered by the mortgage from the Mana (the sale deed in their favour being by all the members of the Mana), and on 23-8-1952 they came forward with the present suit for redemption claiming that they were entitled to ignore the term of 12 years specified in the mortgage deed because it was void for indefiniteness and also by reason of the fact that the mortgage itself was against the provisions of the Malayala Brahmin Act. The court below rejected this claim and upheld the 1st defendants contention that the suit was premature. Accordingly it dismissed the suit without going into the many other contentions (such as an alleged agreement for sale in his favour) put forward by the 1st defendant.