BHAVANI PILLA Vs. AMMUKUTTY PILLA

JUDGEMENT

(1.) AGAINST the decree in a suit for redemption which was brought by five plaintiffs for and on behalf of their tarwad and which has been dismissed by the court below plaintiffs 2 to 5 have filed this appeal. They are sisters, and plaintiff 1 was their mother. The mother died before the suit was dismissed, and plaintiffs 2 to 5 are her legal representatives.

(2.) ACCORDING to the plaint allegations, plaint schedule properties, seven in number, belong to a Nair tarawad known as Vazhapalli tarawad, and the plaintiffs and defendants 2 to 5 are members of two thavazhis in one branch of that tarawad one thavazhi consisting of the plaintiffs and defendant 5 and the other defendants 2 to 4. Defendants 3 and 4 are sisters, and defendant 2 is their brother. In 1070 Krishna Pillai Parameswaran Pillai, of Vazhapalli tarwad executed a mortgage deed for 5000 fanams in respect of plaint schedule items 1 to 3 in favour of one Mallan Pillai Sankara Pillai, and one John David obtained an assignment of that mortgage in 1075. On 17-7-1075 John David obtained another mortgage from Vazhapalli tarwad for 5300 fanams in respect of plaint schedule items 1 to 7 (Ext. A is a copy of the assignment of the mortgage of 1070 and Ext. B a copy of the mortgage of 1075 ). Ext. B is supported by consideration only to the extent of 1300 fanams, and the balance mortgage amount of 4000 fanams recited in that mortgage deed as reserved with the mortgagee for subsequent payment to the mortgagors has not been paid. While john David was in possession of plaint schedule items 1 to 7 under these mortgages, Kali Pillai Velayudhan Pillai and Kali Pillai Krishna Pillai of vazhapalli tarawad executed in his favour a purakkadom (Ext. C copy) for 1000 fanams on 21-8-1079 charged upon all the mortgaged properties. Subsequently, the mortgage and purakkadom rights were sold in execution of a decree against John David and purchased in court auction by one Ramakrishnan Chettiar who also got delivery of possession of the properties in pursuance of the execution sale. After this court sale and delivery, Kali Pillai Velayudhan Pillai who was the karnavan of the plaintiffs and defendants 2 to 5 executed in favour of Ramakrishnan Chettiar two other purakkadoms - one for 450 fanams in 1093 (copy Exhibit D) and another for 700 fanams in 1100 (Copy Exhibit E ). Defendant 1 has obtained an assignment of the rights under the above mortgages and purakkadoms, and she is in possession of all the plaint schedule properties. Since defendant 2 who is the karanavan of the tarwad, was taking no steps to redeem the mortgage plaintiffs have been compelled to bring the suit in order to protect the rights of the tarwad. When they issued a notice to defendant 1 seeking redemption of the mortgages and purakkadoms she replied that the equity of redemption of the plaint properties had been sold in execution of a decree and she had purchased the same in court auction and had thereby become the full owner of the properties and that plaintiffs were not therefore entitled to redeem the mortgages. On subsequent enquiry made by them plaintiffs learnt that on account of the mortgagee's failure to pay the dues payable in respect of the plaint properties to oorumatom, the Jenmi of the properties, the said Matom obtained two decrees for the Jenmi's dues, namely, O. S. 1045 and O. S. 1726 of 1110 of the Trivandrum munsiff's Court, that, although there was a direction to defendant 1 in the assignment taken by her that she should discharge the decree amounts in those two suits, she did not discharge the said amounts and with the intention of obtaining the equity of redemption also for herself she took an assignment of the said decrees benami for her in the name of one of her relatives, Bhaskaran nair, and caused the equity of redemption to be sold in execution and purchased by him. This execution sale will not affect the right of the plaintiffs' tarwad to the equity of redemption, and notwithstanding the execution sale the plaintiffs' tarwad is entitled to redeem the mortgages. Plaintiffs are also entitled to get 1700 fanams from defendant 1 as damages on account of silting up some of the plaint properties with sand. Plaintiffs brought the suit on the above allegations and prayed that a decree might be passed in favour of plaintiff 5 for depositing in court 8450 fanams as the price of redemption and redeeming and recovering possession of the plaint properties for and on behalf of her tarwad. A sum of 1700 fanams was claimed from defendant 1 on account of damages for waste, and mesne profits also were claimed at the rate of 140 paras of paddy per year from the date of the deposit of the price of redemption.

(3.) AT the time of hearing in this court it was admitted by the appellant's learned counsel that the Vazhapalli tarwad had become divided into different branches before 1066. He stated that after the said partition there were three different branches in the tarwad, namely, the branch of the plaintiffs and defendant 5, the branch of defendants 2 to 4, and the branch of Krishnan Parameswaran who executed the mortgage of 1070, and that the plaint properties were allotted in the said partition to Krishnan parameswaran's branch. According to him, Krishnan Parameswaran's branch became extinct after 1070, and then the properties belonging to that branch devolved upon the two branches of the plaintiffs and defendant 5 and defendants 2 to 4, and the Karanavans of the said two branches subsequently executed Ext. B in 1075. He also admitted that after the execution of Ext. B there were partitions in both the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4. But he contended that, although on account of these partitions there was no undivided tarwad or even an undivided branch on the date of suit and even though the suit had been brought for and on behalf of the vazhapalli tarwad as a whole which had ceased to exist long before the date of the suit, plaintiffs are competent to maintain the suit in their individual capacities and can be given a decree for redemption in this suit itself. The contention was that after the extinction of Krishnan Parameswaran's branch the properties belonging to that branch including the plaint properties had devolved on the branch of the plaintiffs and defendant 5 and the branch of defendants 2 to 4, that these two branches had renewed the mortgage of 1070 by executing Ext. B in 1075, that the result of the subsequent partitions in the branch of the plaintiffs and defendant 5 and the branch of defendants 2- to 4 would be to make the individual members of the two branches co-owners or co-sharers of the equity of redemption, and that as co-owners of the equity of redemption plaintiffs are entitled to redeem the mortgage and maintain a suit for redemption. It was also stated that plaintiffs and defendants 2 to 5 were the only co-owners of the equity of redemption on the date of suit, and so no prejudice also will be caused to the mortgagee by allowing redemption in this suit.