KIZHAKKEPATI THAVAZHI TARWAD KARNAVAN AND MANAGER, NARAYANAN NAIR Vs. THAVALAPARA KOMLI S SON CHEKUNHI

JUDGEMENT

(1.) The appellant and one Karthiyayini Amma, a lady of his tarwad, executed a kanom kychit in favour of defendants 9 and 10; and the appellant, as the karnavan of the tarwad, brought this suit for the redemption of the prior mortgages. The suit was decreed by the District Munsif of Walluvanad but in appeal the Subordinate Judge of Ottapalam has given three reasons why the suit should not be decreed. The first is that the suit was premature, in that it was brought before the expiration of the period of the mortgage. The second is that the suit is not maintainable without Karthiyayani Amma's heirs being made parties to the suit, as the kychit was executed by her and the plaintiff jointly and not by the tarwad as represented by them. The third objection to the plaintiff's suit is that he has not asked to be allowed to redeem the whole of the property mortgaged. In appeal all these points have been argued, except that the finding of the learned Subordinate Judge that the kanom kychit was executed by the plaintiff and Karthiyayini Amma in their personal capacities and not on behalf of the tarwad has been accepted. It therefore follows that Karthiyayini Amma must be added as a party; but it is contended that the plaintiff should be given an opportunity of doing so. It has also been conceded that the plaintiff is bound to pay for the improvements of all the lands covered by the mortgage, and therefore to redeem all of them.

(2.) The trial Court found that the suit was not premature. The question arose because the mortgage document, Ex. A, was executed seven years after the execution of a similar deed, Ex. 3, for which type of mortgage the normal term is 12 years. The existence of a mortgage for 12 years does not prevent the parties from renewing the mortgage and cancelling the old one before the 12 years have expired; and to see whether that has been done one has to examine the document itself. The learned District Munsif pointed out that there is nothing in Ex. A, to indicate-that it was not to operate until the expiration of the 12 years under Ex. 3, and I agree. Not only is there nothing in Ex. A to suggest that it is not intended to operate for a number of years; but there are-recitals definitely proving that it is to operate at once. For example, we find: "These items are demised to me today;" later on, "out of this michavaram the paddy shall be paid from 1089 onwards" (the year of Ex. A being 1088); then, lower down: "The oil shall be measured according to the oil measure before the 30 Makaram of each year from 1089 onwards". The next sentence is: The Government assessment with fund on the scheduled properties from 1089 onwards shall be paid yearly.

(3.) Lastly, and still more important, we find the sentence: I would also forfeit the right to hold the properties for the rest of the period for which the properties have been demised in kanom.