MAHESWARADHATHAN NAMBUDIRI Vs. NARAYANAN NAMBUDIRI

JUDGEMENT

(1.) These appeals arise out of three suits for redemption (O. S. No. 213 of 1950, O. S. No. 1 of 1951, and O. S. 2 of 1951 of the Munsiff's Court, Perintalmanna) brought by the same two plaintiffs, two of the suits, O. S. No. 1 of 1951 and O. S. No. 2 of 1951, against the same three defendants. In all the three suits, the plaintiffs traced their right to redeem to a possessory mortgage dated 15-9-1911 this has been marked as Ext. Al and the three suits were tried together along with a fourth (O. S. No. 91 of 1951) with which we are not concerned. The Trial Court dismissed all the three suits; the dismissal was reversed and the suits decreed in first appeal; the decrees made in first appeal were confirmed by this Court in second appeal; and the 5th defendant in O. S. No. 213 of 1950 and the 3rd defendant in O. S. No. 1 of 1951 and O. S. No. 2 of 1951 have come with these appeals, A. S. No. 209 of 1964, A. S. No. 210 of 1964 and A. S. No. 208 of 1964 respectively, on certificate granted under S.5(iii) of the Kerala High Court Act. The division bench that heard these appeals in the first instance has referred them to a full bench because it thought that an authoritative decision on the effect of the redemption of a mortgage, by suit, on the rights of a sub mortgagee who was not made a party to the suit, was necessary. It thought that there was an apparent conflict between the provisions of O.34 R.1 of the Code, according to which the sub mortgagee is a necessary party to the redemption suit, and the statement in Mulla's Transfer of Property Act, 5th Edition, pages 377 and 378, to the effect that mere registration may not be notice of the sub mortgage to the mortgagor and that, if a mortgagor redeems the mortgage without notice of the sub mortgage, the sub mortgage will be extinguished so far as the property is concerned. It also thought that Viswanatha v. Chimmuktti Amma AIR 1932 Mad. 115 spoke in two voices on this question. We might observe that the question posed arises only in A. S. No. 208 of 1964 and A. S. No. 210 of 1964 and not in A. S. No. 209 of 1964.

(2.) We shall take up first A. S. No. 209 of 1964, the appeal by the 5th defendant in O. S. No. 213 of 1950. The appeal relates only to item 1 of the properties in suit, and we shall hereafter refer to it as the suit property. This property belonged (not in jenm but under some lesser possessory title, but that does not matter) to a Namboodiri joint family called the Kakkat Mana of which the 7th defendant is the present manager. This and 13 other items of property were mortgaged by the Mana on 27-3-1909 to one Kunhukutty Amma whose successors are defendants 1 to 4 in the suit. The mortgage, so far as the suit property is concerned, was possessory, and it was to redeem this mortgage of 1909 that the suit was brought. (The mortgage deed is not in evidence. It would appear that the original is lost and no registration copy can be got since the records of the particular Sub Registrar's Office were burnt during the Moplah Rebellion of 1921. There is however no dispute with regard to this mortgage and its non production is therefore of no consequence). By Ext. A1 dated 15-9-1911, Narayanan Atisseripad, the then Manager of the Kakkat Mana, mortgaged 46 items of property, including the suit property and the other properties comprised in the mortgage of 1909, to one Variyar, the 8th defendant in the suit, for Rs. 10,000/-. This mortgage also was possessory so far as the suit properly was concerned and Sundaranunni Variyar was directed to redeem the mortgage of 1909 within a year. He, however, did nothing for 36 years and what he did thereafter was not to redeem the mortgage of 1909 but to assign his mortgage Ext. A1 (by means of Ext. A2 dated 6-7-1947) to the two plaintiffs in the suit, who, it is stressed on behalf of the 5th defendant, are the sons inlaw of the 7th defendant, the present manager of the Kakkat Mana, although that circumstance has no real bearing on the case. Meanwhile, in 1932, the Kakkat Mana had, by its manager, the 7th defendant, partially redeemed the mortgage of 1909 as a result of a compromise decree, Ext. B3 dated 16-6-1932, in a Suit for redemption (O. S. No. 80 of 1931) and had, in pursuance thereof, taken possession of the suit property from the mortgagee, Kunhukutty Amma, who was, of course, a party to the suit. Sundaranunni Variyar, the mortgagee under the puisne mortgage Ext. A1 dated 15-9-1911, was, however, not made party to the suit, and therefore, his rights under that mortgage remained unaffected thereby. By Ext. B8 dated 24-5-1938, the Kakkat Mana sold the suit property to one Krishnan Nambudiri. From him the 5th defendant bought it by Ext .B11 dated 6-8-1946 and he is admittedly in possession.

(3.) The suit as against the 5th defendant was on the footing that he was in possession under the mortgagees, defendants 1 to 4. The 5th defendant denied this and asserted that he was in possession by virtue of his purchase from the original mortgagor the Kakkat Mana, which had redeemed the mortgage so far as the suit property was concerned, and that, so far as the suit property was concerned, the suit mortgage of 1909 having already been redeemed by the mortgagor, there was nothing left for the puisne mortgagees, the plaintiffs, to redeem.