KESAVA PILLAI RAMAKRISHNA PILLAI Vs. DAKSHYANI AMMA THANKAMMA

JUDGEMENT

(1.) The plaintiff is the appellant. The appeal is against the judgment of this court in S.A.No. 262 of 1954. ( 1956 KLT 363 ). The suit, filed on 15-3-1119, is for the redemption of an alleged mortgage of unspecified date. According to the plaintiff the property belonged to one Kurichimattom. It was demised on Kanappattom to Kundarathala tarwad and the defendants are in possession under a mortgage executed by the Karnavan of the Kundarathala tarwad in favour of the karanavan of the defendants tarwad. Those members of the Kundarathala tarwad who obtained in partition the equity of redemption of these properties, sold the same to the plaintiff on 27-12-1117 with a direction to redeem the mortgage. The cause of action is stated to have arisen on 21-4-1075, 4-1-1099 the date of partition in Kundarathala tarwad, and on 27-12-1117 when the equity of redemption was purchased by the plaintiff. The significance of the first date, i.e., 21-4-1075 is not indicated in the plaint.

(2.) The third defendant who alone contested the suit denied the mortgage and alleged that the property belonged to the defendants tarwad from ancient times, that she has purchased it from those members who got it in the partition deeds of 1090 and 1104 of the defendants tarwad, that the suit was barred by limitation, and that the plaintiffs vendors or their tarwad had no title to the equity of redemption.

(3.) The plaintiff filed a rejoinder stating that he was not aware of the date of the mortgage, and he was not in a position to produce a copy of the mortgage deed. But he alleged that the defendants tarwad had all along been admitting that they had only a mortgage right in the property. It is also seen from the rejoinder that 21-4-1075, the first of the three dates shown in the plaint as those when the cause of action arose, is the date of Ext. D decree in O.S. 742 of 1075. That was a suit filed by the jenmi for recovery of arrears of michavarom from the members of the Kundarathala tarwad. Ayyappan Kumaran, the Karnavan of the defendants tarwad had to be impleaded as the defendants were in possession of the property and a charge was sought to be enforced against the property. Ayyappan Kumaran remained ex parte and the second defendant who was the then senior anantharavan of the Kundarathala tarwad filed Ext. E written statement to the effect that as the property was mortgaged to the defendants tarwad, they were liable to pay the arrears claimed. However, there is no acknowledgment of the subsisting mortgage in Ext. E and that fact is admitted by the learned counsel for the appellant.