SANI Vs. CHANDRIKA

JUDGEMENT

(1.) The question for decision in this Second Appeal, is, which of the rival claimants to the equity of redemption of the suit property, the plaintiff or the 2nd defendant, is entitled to redeem the mortgage evidence by Ext. B, in favour of the 1st defendant. The suit property and others, belonged to a Nambudiri illom; there was a partition in it by deed Ext. I dated the 5th Kumbhom 1116, under which, the properties in schedules C and D therein, were allotted to one of its branches, which consisted of Savithri Andarjanam, Unnima Andarjanam, and Damodaran Nambudiri, a son of the latter and a minor at the time. It was provided by Ext. I, that the properties in schedule D, which comprised also the suit property, were to be enjoyed by Savithri Andarjanam for her life, and to revert to the branch aforesaid on her death. Subsequently, Unnima Antharjanam 'died and later, Damodaran Nambudiri attained majority. Savithri Antharjanam executed a release of her rights by Ext. II dated the 15th Chingom 1125, in favour of Damodaran Nambudiri on the effect of which, the question for decision has to be answered. According to the plaintiff, this operated as a release of her rights only with respect to the properties in schedule C of Ext I, while according to the 2nd defendant, who is the appellant here, it extinguished her rights over the properties in schedule D as well, including the suit property, subject however, to her life-interest therein. Damodaran Nambudiri then conveyed the equity of redemption of the suit property in favour of the 2nd defendant by deed, Ext. V, dated the 25th Chingom 1125. On the 23rd January 1951, after Damodaran Nambudiri died, Savithri Antharjanam executed a deed of assignment Ext. A, in favour of the plaintiff, also for the equity of redemption of the suit property. On the plea of the 1st defendant, the 2nd defendant was impleaded. Both the courts below have found against the 2nd defendant's title, and have allowed the plaintiff to redeem the mortgage.

(2.) The provisions in Ext. I adverted to above, are clear and do not admit of any controversy. In the earlier part of Ext. II Savithri Antharjanam declared, that for a consideration of Rs. 1000, she was releasing her rights over the properties in schedule C in Ext. I, which were alone scheduled in Ext. II. This was affirmed by the clause in Ext. II, which followed immediately. Later in Ext. II, there was a statement, that she had no more rights except the life-interest over the property in schedule D of Ext. I. A statement, that she had no rights to the said Branch and its properties, was originally inserted in Ext. II, but was struck off. These are the material parts of Ext. II. The dispositive words or the words of conveyance in Ext. II are only those contained in the earlier part, which as observed were limited specifically to her rights over the properties in schedule C. The only statement in Ext. II, which was relied on for the 2nd defendant, was that Savithri Antharjanam had no more rights, except to the life-interest specified. A mere statement, or an affirmation like this, without adequate words of conveyance, cannot, in law, have the effect of a disposition of property; it does not even purport, in express terms, to extinguish her rights, as a member of her branch, subject to her life-interest, in the property in schedule D. Such a statement can be an erroneous one, and will not be efficacious to transfer or extinguish rights. The case in V. Lekshminarayanan Chettiar v. Rangayya Chettiar, AIR 1937 Mad. 237 , decided by Pandrang Row, J. is exactly in point. In that case too, there were release deeds, which were to operate on the properties covered by the schedules appended to them, the consideration for the release of the rights being a sum of Rs. 2000/-, just as the consideration in Ext. II was a sum of Rs. 1000/-for the release of the rights over the properties in schedule C. There was also a statement in the release deeds that thereafter, only "blood relationship subsisted between the parties and no monetary relations". The contention of the defendant therein, that the executant of the release deeds had thereby in effect relinquished his interest in all the joint family properties was negatived. As contended, under Section 14 of the Cochin Nambudiri Act (XVII of 1114) a member of an illom has the liberty to give up his rights in the illom at any time. The plea taken does not seem to warrant this contention; in any event, on the true interpretation of Ext. II, there is no scope for the view that Savithri Antharjanam renounced her rights in respect of the properties in schedule D, much less, in all her branch properties, whether movable or immovable. Without an investigation, it cannot be supposed, that all that the branch was possessed of, was what was detailed under Ext. I. If that part of Ext. II adverted to earlier, which was struck off, remained, there would have been some force in the argument; even then it would not take the case further than what was decided by the Madras High Court in the case cited. Consciously enough, for reasons which the parties knew best, that part was struck off. It seems to me, that the present, is a stronger case than Lakshminarayanan Chettiar's case; the 2nd defendant's contention on the interpretation of Ext. II has to be repelled.

(3.) It follows, that the 2nd defendant is not entitled to redeem. The appeal is dismissed with costs.