GOVINDAN RAMAN Vs. GOVINDAN KESAVAN

JUDGEMENT

(1.) These appeals arise from two suits O. S. Nos. 22 of 1122 and 28 of 1123 tried and disposed of together by the Temporary Additional District Judge of Mavelikara. Govindan Raman the appellant in the two appeals was the plaintiff in O. S. No. 22 and the 1st defendant in O. S. No. 28. O. S. No. 22 of 1122 was a suit for redemption of 6 items of immovable properties which were outstanding on mortgages executed by a former karnavan of the plaintiff's farwad. Exts. C, D and E are three mortgage deeds of the years 1060, 1067 and 1072 respectively. Govinclan Kesavan the defendant in. O. S. No. 22 took an assignment of the mortgage rights in respect of items 1 to 6 under Ex. F dated 1-2-1084 and he was stated to have been in possession of these properties from that date. The equity of redemption of items 1 to 3 and some other properties were sold through the District Court of Mavelikara in execution of the decree in O. S. No. 150 of 1101 of the Quilon District Court, obtained against the farwad of the plaintiff and the defendant. The plaintiff purchased the same in court sale and on the strength of the title thus obtained, he sued for redemption of the 6 items of properties described in the plaint schedule. The defendant who was the Karnavan of the plaintiffs branch of the tarwad resisted the suit. His main contentions were that item No. 5 did not belong to the common tarwad but to the tarwad of the plaintiffs father that it was wrongly included in the mortgage deeds and that neither the mortgagees nor himself obtained possession of the same, The same contention was raised about S. No. 62/ 9A and C included in item No. 6. It was also contended that the plaintiff purchased items 1 to 3 for and on behalf of his uncle Govindan Unni and his sister Janaki with funds belonging to them, that they were the real owners and that they should be im-pleaded. As regards items 4 to 6 it was further contended that the defendant who was the karnavan alone was entitled to redeem those items as the plaintiff had not purchased the equity of redemption of the same. The learned Judge allowed redemption of items 1 to 3 and dismissed the suit as regards items 4 to 6. The plaintiff was allowed to recover mesne profits from the date of decree at the rate of 1 para of paddy per 1 cent of land per annum. The plaintiff has preferred A. S. No. 30 from this decree claiming redemption of items 4 to 6 also and the defendant-respondent has filed a memorandum of cross-objection.

(2.) O. S. No. 28 of 1123 was a suit instituted by Govindan Unni referred to earlier for specific performance and other reliefs. His case was that when the properties came up for sale in execution of O. S. No. 150 of 1101 the members of the tarwad met together and decided that the first defendant appellant should bid the properties in auction and that he should convey items 1 and 2 to the plaintiff on receipt of the auction amount. This arrangement is stated to have been confirmed after the date of sale also. It was alleged that as per the above agreement, a sum of Rs. 1700 was paid by the plaintiff to the first defendant through the 2nd defendant and that the plaintiff utilised me same towards deposit of the auction amount. According to the plaintiff the proportionate auction amount in respect of items 1 and 2 is only 10500 fanams. Therefore he claimed the balance amount from the first defendant. In the alternative it was pleaded that if the first defendant was unwilling to pay the balance, the plaintiff was willing to purchase the items 3 and 4 in the plaint schedule. The trial court upheld the plaintiff's case in respect of item 1 and directed the 1st defendant to execute a sale deed for item No. 1 to the plaintiff within 7 days of obtaining possession of the same from the mortgagee. The plaintiff was also given a decree for recovery of a sum of Rs. 100 from the first defendant as balance found due on deducting the proportionate value of item No, 1 from the sum of Rs. 1700. The suit was dismissed in other respects and the parties were directed to bear their costs. A. S. No. 31 has been preferred by the first defendant from this decree. The plaintiff 1st respondent has filed a memorandum of cross-objections in this case also. The two appeals were heard together.

(3.) The first point urged on behalf of the appellant was in respect of item No. 5 and S. No. 62/ 9A and C, the finding regarding which was that these did not belong to the tarwad of the plaintiff and the defendant but to the Tarwad of the plaintiff's father. It was argued that if this finding was wrong and that the court below ought not to have entered a finding regarding title to these properties in this suit which was one for redemption of mortgages and that in any event it was not open for the defendant who was an assignee of the mortgagees to deny the title of the mortgagor. Learned counsel for the appellant referred to several Exhibits in the case to snow that the defendant had on various occasions admitted having obtained possession of these items from the mortgagees. We do not consider it necessary to decide the question whether these properties were rightly included in the three mortgages as it is unnecessary in view of our conclusion regarding next point, viz, whether the plaintiff who has not purchased the equity of redemption of items 4 to 6 is entitled to redeem items 4 to 6 from the defendant, the karnavan of the branch tarwad. It may however be pointed out that the finding that these properties belonged to another tarwad was unnecessary for the purpose of the suit and that the same has to be set aside. The question is left open.