AYIROOR SWAROOPATHINKAL AYIROOR MALIKA KOVILAKATH RANDAMAN KUNHUNNI ALIAS RAVI VARMA RAJAH AVERGAL Vs. KANNAMKULATH MADHATHIL RAMASUBRAMANIA PATTAR

JUDGEMENT

(1.) This suit was brought by the plaintiffs appellants, to recover property on behalf of a Devaswom alleged to be the property or to be under the management of themselves and defendants Nos. 9 to 11 ; and the main defence was that the property is held by the 1st defendant on a valid mortgage, which is still outstanding.

(2.) The facts are that the property was first mortgaged by the predecessor of the 9 th defendant, the present Karnavan of the Kovilagam, in 1905 under Exhibit I ; and that 9th defendant compromised a suit, which he brought in 1908 to set Exhibit I aside on obtaining modifications of certain of its terms, which are embodied in Exhibit L. The first contention before us is that Exhibit 1 superseded the original mortgage Exhibit I, but created no fresh mortgage relation and that the property, thus freed, should therefore be restored to plaintiffs.

(3.) Exhibit 1 is executed only by the 1st defendant, the mortgagee ; and, if it purported to supersede Exhibit I and were relied on as constituting the mortgage relation between the parties, Section 59 of the Transfer of Property Act would no doubt negative the possibility of its doing so. But its terms preclude that argument. For they do not provide explicitly or implicitly for the supersession of Exhibit I, either entirely or by modification of any of its essential conditions.