VELAPPAN PILLAI Vs. PARAPPAN PANICKAR

JUDGEMENT

(1.) THIS second appeal by the plaintiff arises out of proceedings for final decree in a suit for redemption. To appreciate the problems raised in the case, it is necessary to set out briefly the history of the proceedings leading to the preliminary decree in the suit.

(2.) THE suit property belonged to one Vyakulam, the widow of one Innasi. She settled it on the husband of her daughter Chandanom, and after legal proceedings against strangers in possession of the property commenced by her husband and continued by her after his death, Chandanom acquired title to the property. Chandanom had a sister Anthonial and two brothers, Chinnian and Innasi Soosah. Anthonial was the younger sister. Chandanom had no issue. She entered into an agreement with her brothers for them to inherit the property after her death, providing for her enjoyment of the property during her lifetime. She settled a portion of the property on her sister, Anthonial for her marriage as stridhana and also incurred expenses for the marriage. She had borrowed moneys for the litigation to recover possession of the property, and after the death of her brother chinnian, leaving his widow and children Chandanom along with her surviving brother, Innasi Soosah, the widow and children of Chinnian and her sister anthonial, and her husband she executed a usufructuary mortgage in favour of the first defendant in the redemption suit out of which this second appeal arises. That was on 9-4-1944 securing 8405 fanams. Subsequent to this usufructuary mortgage, Chandanom and two of the sons of chinnian, along with Anthonial's husband, Anthonial being dead meanwhile, executed a subsequent usufructuary mortgage of the property in favour of the present plaintiff, the consideration being the discharge of the usufructuary mortgage in favour of the first defendant, and a further amount of 2625 fanams. The consideration for discharge of the earlier usufructuary mortgage was reserved with the present plaintiff. In between the dates of the two mortgages a fourth share in the property had been sold in execution of a decree obtained against innasi Soosah. This suit for redemption has been filed by the subsequent mortgagee seeking to redeem the earlier usufructuary mortgage in favour of the first defendant in the suit. The first mortgage has been exhibited as Ex. B, and the second mortgage (othi and kuzhikanom), under the title acquired by which (sic) to the equity of redemption, the' suit for redemption is instituted, is exhibited as Ex. VIII. Claiming title and interest in the properties under the agreement between chandanom and her brothers, above referred to, disputes were raised by two of her nephews as to the validity of this second mortgage, Ex. VIII, and also of the court sale above referred to on the decree obtained against Innasi Soosah. The fourth and the fourteenth defendants in the redemption suit, one of the sons of Chinnian and one of the sons of Anthonial, the son of Chinnian not being party to Ex. VIII and the other being a minor at the lime of the execution of Ex. VIII questioned the court sale above referred to and the validity of the usufructuary mortgage, Ex. VIII by the suit O. S. No. 459 of 1122 M. E. to this suit the plaintiff in the redemption suit was made the first defendant. The first mortgagee was made a party to that suit as the 11th defendant. Innasi Soosah and others of the family were also parties; as also Chandanom. In the suit for redemption the plaintiff the present appellant impleaded as parties, the original mortgagee, the person in possession of the plaint schedule property under the mortgage, Ex. B for 8405 fanams as the first defendant, and Defendants 8 to 13 as persons alleged to be in possession under the first defendant. Defendants 6 and 7 were added as persons whose marriage expenses also had necessitated the borrowing under Ex. VIII. As stated already the fourth and the fourteenth defendants are the persons who questioned the validity of the second mortgage in O. S. No. 459/1122. The other children of Chinnian and Anthonial were also made parties to the redemption suit. Only Innasi (Soosah) was not made a party. The suit for redemption of the mortgage, and the suit in which the validity of Ex. VIII was challenged, were both tried together and the Principal District Munsif of Kuzhithurai on 27-1-1953 decreed the suit for redemption and dismissed the suit questioning the validity of the mortgage, Ex. VIII. On appeal the suit for redemption was dismissed, as not supported by consideration, and the other suit for declaration was allowed.

(3.) APPEALS in these cases had originally been instituted in the Travancore-Cochin high Court and were subsequently transferred to this Court on the reorganisation of States. The appeal in the suit for redemption came to be numbered as S. A. No. 1189 of 1956 and the number of the other second appeal is S. A. No. 1251 of 1956. This Court on the second appeals held that the restraint on Chandanom's powers of alienation in her agreement with her brothers was void, and that she was free acting for herself to alienate the property. It was found that neither for the purpose of having the debts incurred discharged, nor for the purpose of ensuring their succession to the property after her lifetime could she and her brothers enter into any valid agreement by which she would be prohibited for all time from alienating the property except with their consent. This Court held that on the terms of the agreement which was exhibited as Ex. A, it was not possible to hold that Innasi Soosah, in a decree again whom a portion of the property was sold, had any interest in the property which could be attached and sold in execution of a decree obtained against him. It was found that the purchaser from him in execution of the decree acquired no interest in the property in his favour under the court sale. This Court held that the plaintiffs in the suit, O. S. No. 459 of 1122 ME wherein the validity of Ex. VIII was challenged had no interest in the property to entitle them to maintain the suit. It was said that neither Anthonial nor Chinnian, the deceased sister and brother of Chandanom, acquired any interest in the property under Ex. A. Finding consideration for the mortgage Ex. VIII, duly established, this Court on the second appeals dismissed the suit, O. S. No. 459 of 1122 ME. and granted a preliminary decree for redemption in S. A. No. 1189 of 1956. The plaintiff was granted three months time for paying the mortgage money. At the hearing, it was represented in the redemption suit that the mortgage money had been deposited in the trial court during the pendency of the suit. Thereupon this Court ordered that if that was so and the money had been withdrawn by the mortgagee or was available for being withdrawn by him, the appellant will be entitled to apply for final decree straightway. It is pursuant to this preliminary decree passed by this court, an application was made in the trial court for the passing of a final decree. This Court's decree was passed on 17-10-1959 and I. A. No. 1186 of 1961, the application for' the passing of the final decree was filed on 28-10-1961.