DAMODARAN VASUDEVAN NAMPOORI Vs. ULAHANNAN OUSEPH

JUDGEMENT

(1.) This second appeal is by the plaintiff in a suit for redemption of a possessory mortgage executed by him in favour of the defendant on Dhanu 18,1121.Ex.A is the instrument of that mortgage.The defendant contended that though he came into possession as a mortgagee he had subsequently purchased the equity of redemption and that thereupon the mortgage merged in the equity of redemption and thereafter he had been enjoying the property in absolute rights and therefore the suit in redemption did not lie.In the replication the plaintiff pleaded ignorance of the defendant's purchase of equity of redemption.At trial,the deed of sale of equity of redemption to the defendant executed by the plaintiff's father,who is admittedly the karnavan of the illom,was proved as Ex.I.It is dated Chingom 22,1122.The Munsiff held Ex.I invalid as it had not the written consent of all the major members of the illom as required by S.5 of Travancore Malayala Brahmin Act,III of 1106,and was not proved to be supported by consideration and illom necessity and decreed redemption.On a controversy regarding the residual rent(pattamicham)payable under the mortgage,the plaintiff took the matter in appeal and there the defendant preferred cross objection regarding the decree in redemption.The Sub ordinate Judge held:

(2.) He therefore dismissed the suit as not maintainable allowing the cross objection.Hence this second appeal by the plaintiff.

(3.) It has come out in evidence that there was a partition between the plaintiff and his father on November 14,1955(though the deed of partition has not been put in proof in this case)and thereunder the suit property had been allotted to the plaintiff.But nothing turns on that partition if the property has been sold by the karnavan of the illom before that partition and the sale stands.