NANI KUNJUKRISHNAN Vs. PADMANABHA PILLAI KRISHNA PILLAI

JUDGEMENT

(1.) These appeals arise from O. S. No. 68 of 1121 of the District Court of Trivandrum which was a suit for redemption of mortgages. The properties described in the plaint schedule are Kypallivilagom comprising three plots and Alummoodu Purayidom. These originally belonged to two families Kypilli and Attoor houses on Service Inam Tenure. The mortgages and purakkadoms sought to be redeemed are Exhibits A, B, C, D, E and F. According to the plaintiff one Mary Beemer took Kypallivilagom on mortgage from the owners in 1043 under Ext. A. This was followed by another mortgage Ext. B of the year 1053 in favour of Mary Beemers husband Joris Beemer for Alummoodu Purayidom. Mary Beemer in whom the mortgage rights ultimately vested bequeathed the same to her original Tarwad known as Varuvilagom under a Will which though contested has been upheld by the Court. Defendants 1 to 40 are members of Varuvilagom Tarwad consisting of 4 branches, all of which are represented in the suit. Defendants 41 to 44 are the children of one Mathevan Kumaran, deceased younger brother of the 1st defendant and defendants 45 to 47 are the children of the 1st defendant. The 48th and 49th defendants were impleaded as persons in possession of certain plots or building in the properties. The 50th defendant was stated to have a hypothecation right over the property. Defendants 51 to 54 are members of Kypalli family who sold the equity of redemption to the plaintiff. On the strength of such purchase the plaintiff instituted this suit. According to the plaintiff defendants had committed waste in the property and a sum of 1,500 fanams was claimed by him as damages. The plaintiff also claimed arrears of Michakaram at the rate of 20 fanams per annum from the date of Ext. B which provided for payment of the same. The plaintiffs case was that the defendants were liable to remove the building erected by them on the property. He also offered to pay a sum of 2,000 fanams as compensation for the buildings in case defendants were unwilling to remove the same. The plaintiff stated that he was willing to pay compensation for trees, if any, planted by the mortgagees. A sum of Rs. 1,000 per annum was claimed as mesne profits. The plaintiff prayed for a decree for recovery of possession of the properties on payment of the mortgage money and value of improvements, if any, deducting therefrom damage on account of waste and arrears of michakarom. Defendants 8, 9, 16 to 21, 23, 24, 33, 41, 42, 48, 49, 56 and the guardian of minor defendants filed written statement disputing the plaint claim. The main contentions were that defendants 51 to 54 were not competent to sell the equity of redemption to the plaintiff, that Michakarom was not in arrears, that the suit was barred by limitation, that the allegation of waste was not true, that the defendants were entitled to the value of improvements, that the claim for mesne profits should not be allowed and that the rate at which the same was claimed was excessive. Defendants 16 to 21 further contended that Ext. A comprised only the middle plot of Kypallivilagom and not the plots lying north and south of it. According to them Survey. Nos. 169 and 171 alone were included in Exts. A and B and the plaintiff was not entitled to redeem the rest of the property, i. e. S. Nos. 168 & 170 The 24th defendant raised a contention that the northern plot of Kypallivilagom comprised in S. No. 169 was not included in Ext. A and that it belonged to a different family from whom her ancestress Valli Chinna had obtained it on mortgage. It was therefore contended that possession of the northern plot was not under the plaint mortgages. The 49th defendant who claimed 10 cents and the building in the northern plot denied the plaintiffs claim for redemption of the said plot. She is the widow of one Thanuvan Kumarukutty, the last surviving member of Attoor family. She and her husband were residing together in the said plot and after her husbands death she mortgaged the same to the 59th defendant. This plot was not included in the plaintiffs sale deed and his right to redeem this plot was denied. The plaintiff filed a replication denying the material allegations of the defendants and reiterating the averments in the plaint. The Trial Court found that Ext. A comprised only the middle plot of Kypallivilagom, that the northern and southern parts of the said Purayidom were not included in Ext. A, that the suit for redemption of Ext. A was barred by limitation and that the plaintiff was entitled to a decree for recovery of the northern and southern plots of Kypallivilagom as well as Alummoodu Purayidom. The suit was dismissed as regards the plot of 10 cents claimed by the 49th defendant and the middle plot of Kypallivilagom. The claim for damages for waste was upheld. Michakarom was allowed to be recovered from the date of the sale deed obtained by the plaintiff. Thus the suit was allowed in respect of the northern and southern plots of Kypallivilagom as well as Alummoodu and dismissed as against the middle plot of Kypallivilagom and the 10 cents in the northern plot. As the value of improvements on the middle plot was not separately ascertained, provision was made in the decree for deciding that question later. The two appeals have been filed by the defendants and the plaintiff respectively objecting to the decree in so far as the same partly disallowed their claims.m

(2.) The defendants appeal A.S. No. 158 may be considered first. The first point raised is that a decree for redemption of the northern and southern plots of Kypallivilagom should not have been given. It was contended that the principle on which such a decree was given by the lower court was not applicable to the facts of this case. It is true that the learned Judge treated this case as one for redemption of an unspecified mortgage of these plots which was acknowledged in the purakadom deeds Exts. D and E. The argument advanced on behalf of the appellants was that the suit being one for redemption of two specific mortgages Exts. A and B, there is no justification for treating this as a suit for redemption of a mortgage of which particulars were not given. It is unnecessary to rely on this principle as the decree can be well supported on another ground. Exts. D and E no doubt refer to a prior mortgage under which these properties were held. It was found by the Trial Court that the prior mortgage Ext. A did not include these plots. Assuming that this findings correct it follows that Exts. D and E have to be viewed as independent transactions. Both Exts. D and E provide for additional terms in consideration of the respective sums advanced under the deeds. Thus Ext. D provided for a further term of 12 years, such period to commence from the expiry of the period under Ext. D. Admittedly the northern and southern plots are covered by Exts. D and E and the suit is to redeem the purakadoms also. Even if these plots were not included in any prior mortgage, the plaintiff is entitled to redeem Exts. D and E and recover possession of these plots. The decree given for recovery of these plots is therefore correct.

(3.) Argument was advanced that the plaintiffs vendors had no title to the northernmost plot in Kypalli Purayidom. A contention was raised by the 24th defendant at the fag end of the case that this plot belonged to a different Tarwad from whom her ancestress Valli Chinna obtained it on mortgage in 1055. None of the other defendants had this contention and it was not denied that possession passed under Exts. D and E executed long after 1056. There was no case that Exts. D and E were vitiated by fraud. Ext. XIX was produced as the mortgage deed obtained by Valli Chinna and it appears to have been marked without proof. The Lekkom of the property included in Ext. XIX is different. On account of the late production of the document the plaintiff did not get an opportunity to offer his explanation regarding it. In the circumstances we are unable to hold that the northernmost plot of Kypallivilagom belonged to strangers or that redemption of the said plot was wrongly allowed by the lower court.