ESWARI PILLAI Vs. MADHAVAN PILLAI

JUDGEMENT

(1.) THE Plaintiff is the Appellant. She and the first Defendant are members of a Nair sub-tarwad. The suit property is of an extent of 5 acres 40 cents out of an extent of 11 acres included in that survey number. This property had been mortgaged by the main tarwad and the mortgage right came to vest in the sub-tarwad of which the plaintiff and the first defendant were members. But the first defendant sub-mortgaged that mortgage right in favour of one Chinnayyan Nadar, Thereupon the plaintiff filed O. S. No. 372 of 1118 M. E. , impugning the sub-mortgage in favour of Chinnayyan Nadar and succeeded in that suit. Chinnayyan Nadar's appeal before the High Court of Travancore also failed. 3000 fanams had been deposited in those proceedings by the plaintiff as payable to the defendant in that suit in case he succeeded in establishing the validity of the sub-mortgage right in his favour. The plaintiff had also deposited another sum of Rs. 300/- and odd towards the mesne profits and on the basis of that continued in possession of the property sub-mortgaged to Chinnayyan Nadar and which sub-mortgage she succeeded in successfully impugning. As already mentioned, Chinnayyan Nadar's appeal failed and thereupon the plaintiff seems to have withdrawn the sums deposited by her into the Court. She also obtained delivery in pursuance of the decree obtained by her.

(2.) THEREAFTER she filed an earlier suit, O. S. No, 245 of 1956 against the present second defendant who by that time seems to have taken a sale from the present first defendant as well as some other members of the tarwad over this property. The suit was one for injunction and ultimately the plaintiff's suit failed on the ground that the plaintiff was not in possession. Subsequently she filed the suit, out of which the present second appeal arises, for possession of the property. Both the courts have decided against the plaintiff and she has filed this Second Appeal.

(3.) CERTAIN matters, I think, should be kept clear in one's mind in deciding this matter. The property itself belongs to the main tarwad. All that the sub-tarwad, of which the first defendant and the plaintiff are members, are entitled to is a mortgage right, the mortgage in this case meaning possessory mortgage. When the plaintiff filed O. S. No. 372 of 1118 M. E. against Chinnayyan Nadar and obtained possession, it can only be on behalf of the tarwad of which she and the first defendant are members. But in having done so she is entitled to be paid all the expenses which she might have incurred in that litigation before the other members of the sub-tarwad could claim that they should also be placed in possession of the mortgaged property. Therefore the present second defendant who has taken a sale deed from the first defendant and some others cannot stand in a better position than the first defendant and the first defendant himself cannot ask for possession of this property without paying the plaintiff the expenses which she has incurred in the earlier litigation against Chinnayyan Nadar. Till then the plaintiff is entitled to be in possession. It may be that it is not merely the first defendant but also the other members of the sub-tarwad that have got to pay the plaintiff her expenses in the earlier litigation and any other sums which she is entitled to before they can claim possession from the plaintiff. But even if all the members of the sub-tarwad want possession of this property that can be only by paying the plaintiff her expenses in the earlier litigation. In this state of affairs it appears that there was another suit for partition of the main tarwad properties themselves and a preliminary decree was passed therein. Though a final decree was passed that final decree seems to have been set aside. In that preliminary decree it seems to have been provided that various members of the tarwad who were in possession of the various properties belonging to the tarwad would continue in possession until final allotments are made. But as far as the suit property is concerned the main tarwad had only the equity of redemption and the sub-tarwad has the mortgage right. Therefore what can be allotted in that partition suit is only the equity of redemption. Of course if in the partition among the members of the sub-tarwad the mortgage right over the suit property is allotted to the member to whom the equity of redemption is allotted he might become the full owner. But for the present there is no question of the first defendant or the others who have executed the sale in favour of the second defendant having been allotted the equity of redemption over this property or of any of them having been allotted the mortgage right. Nor can one anticipate that it would be so allotted or that the mortgage right of the sub-tarwad would also be allotted to him. Till then the vendee that is the second defendant will not be entitled to any right. If ultimately 2nd defendant's vendors are allotted both the equity of redemption and the mortgage right in full over the whole of the suit property the second defendant can of course in due course get possession of the property. But if his vendors are allotted the whole of the equity of redemption it would be open to the second defendant to sue for redemption and possession of the whole of the property, offering to pay the mortgage amount and probably other amounts which may have to be paid to the plaintiff. If only a portion of the equity of redemption over the suit property is allotted to the second defendant's vendor he can also redeem that portion subject to the other persons, who are also entitled to the equity of redemption, being joined in the suit. Till that contingency of the allotment of the equity of redemption as well as the mortgage right over the suit property is finally settled the second defendant cannot be said to get any right as such under the sale in his favour. The mere fact that the second defendant's vendors have purported to execute a sale deed in favour of the second defendant cannot clothe him with the title to the property or clothe him with the right to be in possession of the property till the plaintiff's rights which she has against the other members of the sub-tarwad are fully satisfied. In this view the plaintiff is entitled to succeed in the suit till the contingency above mentioned comes to pass. It is however urged on behalf of the respondents that it should be provided that the plaintiff cannot get possession if the second defendant pays the plaintiff the expenses which she has incurred in the earlier litigation. I do not think that the second defendant can succeed in maintaining the possession. The second defendant has not got a perfected title either in respect of the equity of redemption or in respect of the mortgage rights belonging to the sub-tarwad and therefore the second defendant, as far as this suit is concerned, should be deemed to be a person who is without a right to possession.