KANDIYIL PARKUM VANIA PUTHUKKUTI KANNA KURUP Vs. THOTTOLI KOTTARATHIL THAMASIKUM AYANCHERI KOVILAKATH SANKARA VARMA RAJA AVL

JUDGEMENT

(1.) The third defendant whom I shall call the mortgagee is the appellant before us. The plaintiff is a melkanomdar and he got his melkonam from the Jenmi, the first defendant, who was then the stanom-holder of a Desam. The suit was for redemption of the 3rd defendant, the mortgagee under the Kanom deed dated 1904, Ex. A, and all the sub-mortgagees and other demises under the 3rd defendant were also made parties. (The second and the third plaintiffs and the second defendant may be treated as claiming under sub-mortgages created by the 1st plaintiff.) The first Count held that Melcharth or Melkanom to the 1st plaintiff given by the 1st defendant was not a Kanom, but an improvement lease and that if it did not require therefore to be attested by two witnesses (as a mortgage is required to be attested by Section 59 of the Transfer of Property Act.) Then it found the value of improvements due to the 3rd defendant and his sub- mortgagees and lessees and gave an elaborate decree from which I shall make the following extracts : "This Court doth order and declare that the amount due to the 3rd defendant on account of kanom is Rs. 1-8-0 and the value of improvements is Rs. 4047-3-11; to the 4th defendant is Rs. 204-7-6" and so on up to the 107th defendant; and then the decree says that "if the plaintiffs pay into the Court the amount so declared due on or before 12th February 1919, the defendants shall deliver up to the plaintiffs all documents in their possession or power relating to the mortgaged properties, and shall put the plaintiffs in possession of the properties." This decree means that each of the particular defendants mentioned in the first portion of the decree to whom a specified amount is declared to be due by the plaintiffs shall put the plaintiffs in possession of the particular properties in his possession. Then the 3rd defendant preferred an appeal and he made only the defendants 1,2,37,112 and 154 and the three plaintiffs party respondents to his appeal. The main points taken by him in the appeal were (1) that the melcharth in favour of the 1st plaintiff. Ex. B. was invalid for want of proper attestation; (2) that Ex. B. was a mortgage and ought to be attested as a mortgage and not as mere lease.

(2.) These were the two principal contentions in the appeal before the Subordinate Judge. The plaintiffs-respondents did not take the objection before the Subordinate Judge that the appeal was bad for non-joinder of the other defendants who had been parties in the first Court. The learned Subordinate Judge held that Ex. B. might be considered as an improvement lease and not a kanom and that therefore it did not require attestation as a mortgage and hence he dismissed the appeal.

(3.) In second appeal before us the same points are taken, namely that Ex. B was a kanom document and therefore was not properly attested and was wholly invalid; and then there is also a point taken about compensation for a well in plot B and for tank and well in plot D. The 1st defendant the stanomdar who granted the melcharth and the original kanom Ex. A., died after the date of the decision of the lower appellate court, and the 3rd defendant brought the next stanomdar on record in this second appeal as the legal representative of the 1st defendant.