THOZHUKKAT PATHAN VEETTIL TAVAZHI LAKSHMI TARWAD KARNAVASTHRI LAKSHMI ALIAS KUTTIMALU AMMA AND ORS. Vs. ACHUTHA MENON (DIED) AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment of the learned District Judge of South Malabar in A.S. No. 229 of 1951 confirming the order and decree of the learned Subordinate Judge of Ottapalam, in O.P. No. 34 of 1949.

(2.) THE case for appellants : The 5 items mentioned in the schedule to the petition belong to the tavazhi tarwad of the petitioners. Achutha Menon, the then karnavan of the tarwad, personally executed a mortgage in favour of Konthi Menon, the karnavan of the respondents' tarwad for Rs. 1,000 on the 23rd Medom 1049 (4th August, 1874), under Exhibit B -2. On the same day another possessory mortgage Exhibit B -1 was executed to the same Konthi Menon for a sum of Rs. 400. On the 13th of Medom 1052 (24th April, 1877) another mortgage for Rs. 1,376 was executed (Exhibit B -4). Then Exhibit B -5 was executed for Rs. 143 -12 -1 on 8th of Meenam 1053 (19th March, 1878). Exhibit B -6 was another possessory mortgage document executed on the 28th Mithunam 1054 (7th July, 1879) for a consideration of Rs. 831. Subsequently there was a partition in the tarwad of the respondents in 1070 (1894 -1895). On 8th June, 1898 a possessory mortgage document for Rs. 4,228 was executed in the names of one Gopala Menon and others for and on behalf of the respondents' tarwad. The persons in whose name that document was executed really took it on behalf of their tarwad. The properties in the petition have thereafter been remaining in the possession of the respondents' tarwad on the strength of that document. The petitioners and their tavazhi are agriculturists entitled to the benefits of the Madras Agriculturists Relief Act and the mortgages have been wiped out under that Act.

(3.) BOTH the Courts below found that in regard to Exhibit A -1 it had not been proved that it was executed either for the benefit of the tarwad or tavazhi of the respondents or that the rights under the prior mortgages had merged in the rights created under the original of Exhibit A -1 or that it was acted upon and in regard to Exhibits B -1, B -2, B -4, B -5 and B -6, that the time for redeeming the mortgages had expired and that the debts under those documents are not legally recoverable and that therefore no declaration could be given in respect of those debts under Section 9(1) of the Act. Hence this appeal by the defeated petitioners.