LAWS(MAD)-1998-9-116

A MEERAN PILLAI Vs. M CHELLAPPAN

Decided On September 04, 1998
A.MEERAN PILLAI Appellant
V/S
M.CHELLAPPAN Respondents

JUDGEMENT

(1.) THE first defendant in O.S. No. 387/69 on the file of the Second Additional District Munsif, Kuzhithumi, is the appellant in the Second Appeal. THE suit was for redemption by the first respondent on the following averments: THE suit property of an extent of one acre belonged to a tarwad called Thaithottam Tarwad. Kanakku Thambi Velayudhan Sankaran was the Karnavan of the tarwad. He mortgaged the "A" schedule property to Meeran Pillai, son of Syed Mohammed for fanams 3800 on 21-7-1086 M.E. THE mortgagee assigned it to one Velayudhan Pillai, nephew of Kumara Pillai with possession on 24-3-1101 M.E. Velayudhan Pillai took another mortgage from the original mortgager for fanams 3500 on 20-4-1101 M.E. over the "B" schedule property getting possession of the same. Thus, the entirety of A & B schedule properties came under his possession and enjoyment. He assigned the mortgages on 7-9-1114 M.E. in favour of his daughter Sarojini Amma over the entire suit Survey number. She, in her turn, assigned the mortgages to Thankayyan Nadar, son of Kutty Kannu Nadar and another on 19-8-1120 M.E. This was assigned on 8-6-1121 M.E. to Meeran Pillai, the appellant herein. THE appellant was in possession and enjoyment of the entire survey number as mortgagee. THE second/respondent the second defendant had some interest under the appellant. THE first respondent had purchased the entire suit survey number from the jenmi tarwad under seven sale deeds with the building thereon. He was entitled to redeem and recover possession from the appellant and the second respondent on payment of the mortgage amount of 7300 fanams . As the demand by the first respondent was not responded, the suit came to be filed.

(2.) THE appellant resisted the suit contending inter alia as follows: Kanakku Thampy Velayudhan Shankaran was not the Karnavan of the above tarwad at the time he was stated to have created the mortgages. He was only a junior member till his death in 1105 M.E. THE mortgages sued upon were not subsisting as they had merged in the larger jenmon right of the appellant. THE vendors of the first respondent had no title to convey. THE first respondent was not the successor-in-interest of the mortgagor. THE vendors were neither the heirs nor the successors-in-interest of Kanakku Thampy Velayudhan Sankaran. Chempakaraman Thanuvan was the common karnavan of Thaithottam tarwad. He mortgaged one half of the suit property on 10-4-1059 M.E. to Samipillai Valliamman Pillai for 800 fanams. THEre was an assignment on 21-11-1072 M.E. in favour of Ulakan Thampi. On 17.9.1073 M.E. Velayudhan Thampi Sankaran Thampi got assignment of it. Under document No. 216 dated 17-9-1073 M.E. he got mortgage for the other half for 1100 fanams. He came into possession of the whole property as a mortgagee of the common tarwad. THE mortgage sued upon did not subsist. Thaithottam became divided into five branches long before settlement period. One such branch became subdivided into four sub branches. In the revenue settlement of the year 1080 M.E. patta was issued in accordance with the above shares. THE persons who executed sale deeds to the first respondent belonged to patta No. 126 branch, who had no subsisting title to any inch of land. Kanakku Thampi Chempakaraman Velayudhan was the last member of his branch. His share was sold in Court auction and purchased by Velayudhan Pillai, son of Sankaran Thampi, who further sold it to the appellant on 8-6-1121 M.E. THE 1/5th share in patta No. 122 fell to the share of Sankara Pillai Mathevan Pillai and Bhageerathi Pillai Thankachi. THEy sold it to the appellant on 25-6-1121 M.E. THE appellant purchased the shares of the several persons and became entitled to the jenmon right of the entire suit property and got the paramount title. Lakshmi Bai Thankachi and others of the first respondent's vendors branch filed O.S. No. 243/52 on the file of the District Munsifs Court. Kuzhithurai, to redeem the suit mortgages. It was dismissed upholding the title of the appellant. THE appellant was bound by that. THE suit was barred by res judicata and estoppel and also by limitation. THE appellant's possession had also been adverse to the vendors of the first respondent's sale deeds. THE building in the suit property belonged to the appellant. THE second respondent was residing in a portion of it for rent under the appellant. THEre was no cause of action for the suit.

(3.) MR. T.R. Rajaraman, learned Counsel for the contesting first respondent, referred to Exs. A-20, A-21 and A-14 and submitted that under the partition deed Ex. A-14, the suit property became the exclusive property of the first respondent's predecessors-in-title. The appellant had not even traced title. He had not produced the partition deed. The conclusion reached by the lower Appellate Court could not be taken exception to.