SAMANTHAN KARAKKATTITAHIL KAMMARAN NAMBIYAR Vs. PATAPPAYIL KOMAN

JUDGEMENT

(1.) This is an appeal from the decree of the learned Sub-ordinate Judge of Tellicherry dismissing the plaintiff's suit for redemption of three mortgages in favour of defendant 1. The mortgages are described in para. 5 of the plaint as follows: (1) an othi dated 14 February 1863 for a sum of Rs. 3000, (2) a kanom dated 17 April 1871 for a sum of Rs. 350 and (3) a kanom dated 2 February, 1889 for a sum of Rs. 400. The properties secured under these mortgages originally belonged to Etakkalavan tarwad which became divided into two tavazhi tarwads known as Thekkinakoor and Patinhattakoor. This division is admitted by all the parties to the suit. The case of the plaintiff is this. Items 1 to 16 of the plaint schedule, which have been described as certain specific halves of certain hills, fell to the share of Patinhattakoottil tarwad and they were mortgaged on 7 September 1883 by the then karnavan in favour of one Koroth Veettil Krishnan. The said Krishnan filed a suit O.S. No. 467 of 1889 on the file of the District Munsif's Court at Kavvai on the said mortgage, obtained a decree and in execution thereof brought the properties to sale and purchased them himself. Subsequent to the said purchase, he assigned the said properties to a pre-decessor-in-title of the plaintiff by a deed dated 8 June 1892. On the basis of that assignment, the plaintiff filed a suit for recovery of possession but he was met by the plea taken on behalf of the defendant 1 that he should sue for redemption before asking for possession. He had therefore to abandon the said suit and this suit has been subsequently filed. It may be noticed that the othi and the two kanoms referred to above were executed in favour of defendant 1 by the Patinhattakoottil tarwad. Excepting items 1 and 16, the. remaining items 2 to 15 appear to be the subject-matter of one or other of the mortgages in favour of defendant 1 along with certain other items in the plaint schedule which did not form the subject-matter of the deed of assignment in favour of the plaintiff's predecessor-in-title.

(2.) Defendant 1, while alleging that the othi and the two kanoms in his favour do subsist and that they are liable to be redeemed, pleads that the properties mortgaged Under these three deeds were not specific items with specific boundaries but undivided halves owned and possessed by the Patinhattakoor tarwad in the items which from the subject-matter of the said mortgages and therefore the suit for redemption without a partition of the said items is not sustainable. He also alleged that there was a Purankadom dated 3 December 1887 in and by which a sum of Rs. 410 was due and payable and according to the stipulation in that deed the amount was payable at the time of the redemption of the kanom dated 2 February, 1889. The plaintiff denies his liability to redeem the said mortgage and this is also one of the subject-matters in issue between the parties. Defendant 2 inter alia pleaded that items 1 and 16 were never owned either by Patinhattakoottil tarwad or Thekkinakoor tarwad, that one half of the hills referred to in items 2 to 10, 13, and 15 out of the properties mentioned in the plaint schedule were owned by Thekkinakoottil tarwad which is now vested in him, that he is not willing that the suit property should be partitioned but should the Court be of opinion that the plaintiff's suit is sustainable, relief can be granted without partitioning the properties. He also owns Jenmi interest in items 17 to 23. Defendant 4 opposed the claim for redemption of item 1 on the ground that there was an othi in favour of his tarwad created by the original Etakkalavam tarwad in or about 1883 and the suit for redemption of that othi is time barred and the plaintiff has no cause of action to sustain the suit. Defendant 5 set up an independent title in respect of items 16.

(3.) The learned Subordinate Judge on a consideration of the oral and documentary evidence in the case came to the conclusion that items 1 and 16 did not form part of the subject-matter of the mortgages in favour of defendant 1, that the defendant 4's claim in respect of item 1 should be allowed, as also the claim of defendant 5 in respect of item 16. In regard to the other items, his finding was that there was division of the original Etakkalavan tarwad into two tarwads, Patinhattakoottil and Thekkinakoottil, that each possessed an undivided moiety in the properties which formed the subject-matter of the mortgages and that each separately mortgaged its undivided half to defendant 1. He therefore thought that the plaintiff had misconceived his remedy and that he ought to have sued for partition and redemption of one half of the properties and that he not having chosen to do so, this suit was liable to be dismissed and he accordingly dismissed the suit. The learned Subordinate Judge also ascertained the amount found due and payable including the Purankarlom amount as Rs. 6183-13-11 and this finding has not been challenged in this appeal subject to the appellant's liability or the Purankadom amount. Plaintiff 2 preferred this appeal and he having died during its pendency, his legal representative, who has been brought on record, continues the same.