High Court Kerala High Court

Krishnamma vs Neelalohitha Alias … on 30 January, 2007

Kerala High Court
Krishnamma vs Neelalohitha Alias … on 30 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 406 of 2003(F)


1. KRISHNAMMA, CHARUMOODU VELIYATHU,
                      ...  Petitioner
2. SAI SURESH, CHARUMMOODU VELIYATHU,
3. SUKANYA, CHARUMMOODU VELIYATHU,
4. VIJALEKSHMI, CHARUMMOODU VELIYATHU,
5. NISHA CHANDRAN, CHARUMMOODU VELIYATHU,
6. NIDHIN CHANDRAN (MINOR)

                        Vs



1. NEELALOHITHA ALIAS BHADMAKANCHANA,
                       ...       Respondent

2. NEELALOHITHAN ALIAS NEELAMBARAN,

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  :SRI.P.S.RAMESH KUMAR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :30/01/2007

 O R D E R
                           M.SASIDHARAN NAMBIAR,J.

                         ===========================

                          R.S.A. NO.406    OF 2003

                         ===========================



            Dated this the 30th  day of January, 2007



                                              JUDGMENT

Respondents are plaintiffs and appellants the

legal heirs of deceased defendant in O.S.1798/85 on

the file of I Additional Munsiff Court,

Thiruvananthapuram. Defendant was originally the

second defendant. First defendant was mother of

respondents 1 and 2 and third defendant alleged to

be the adopted daughter of deceased Pankajakshy.

The suit was originally filed for redemption and

partition. Subsequently plaint was got amended and

original defendants 1 and 3 were deleted and the

claim for partition was relinquished. The suit

after amendment is only for redemption of Ext.A2

mortgage and recovery of possession. Case of

respondents was that 2 = cents of plaint A

schedule property was mortgaged by deceased

Krishnan Neelakantan in favour of Bhagavathy

Meenakshi as per Ext.A2 mortgage deed on 17-3-1958

R.S.A.406/03 2

for Rs.300/- and the mortgage right was

subsequently assigned in favour of deceased

defendant and respondents are entitled to redeem

the mortgage. Deceased defendant in his written

statement contended that the property originally

belonged to Keezhpurassery tarwad and Krishnan

Neelakantan and his sister Pankajakshy had only

1/4th share being members of one among the four

thavazhies and Pankajakshy had executed a gift deed

in favour of her adopted daughter Santhakumari, who

was the original third defendant, and though the

gift deed was cancelled as per the decree in

O.S.687/62, Santhakumari filed O.S.319/74 for

cancellation of the decree alleging that it was

obtained by fraud and that suit was decreed and

mortgagee Bhagavathy Meenakshy released her right

in favour of the defendant, who has jenm right over

10.75 cents of plaint A schedule property and

therefore respondents are not entitled to the

decree for redemption sought for.

2. Learned Munsiff after framing necessary

issues, recording that no oral evidence was adduced

and marking Ext.A1 and A2 on the side of

R.S.A.406/03 3

respondents granted a decree for redemption of

Ext.A2 mortgage and directed them to deposit the

mortgage money of Rs.300/- due to the appellants,

as the legal heirs of deceased defendant apply for

passing a final decree. That decree and judgment

was challenged before District Court,

Thiruvananthapuram in A.S.61/95. Learned Additional

District Judge on appreciation of evidence,

confirmed the decree and dismissed the appeal.

Second appeal was filed challenging the decree and

judgment.

3. Second appeal was admitted on the following

substantial questions of law.

1) Have the courts below acted in accordance

with law in construing and interpreting Ext.A1?

2) What is the legal effect of Ext.B1 vis-a-

vis Ext.A1?

3) What is the right of the 2nd defendant over

the property in accordance with law? Is it as a

sharer of the equity redemption or only as an

assignee mortgage?

2. Learned counsel appearing for appellants and

respondents were heard.

R.S.A.406/03 4

3. The argument of learned counsel appearing

for appellants was that Ext.A1 partition deed

itself establish that plaint A schedule property

originally belonged to Keezhpurassery tarwad and

the tarwad has four thavazhies and each thavazhy

had 1/4th right and though in Ext.A2 mortgage deed

executed by Neelakantan and the mortgagor has

stated that he has absolute right over 21 = cents,

which was mortgaged thereunder, he had only 1/4th

right. It was also argued that though it was

contended that on the death of Pankajakshy

issuless, her right also devolved on Neelakantan,

Pankajakshy had an adopted daughter in whose favour

a gift deed was executed by deceased Pankajakshy

which was sought to be cancelled by instituting

O.S.687/62 and though a decree was granted in that

suit, Santhakumari the adopted daughter in turn

instituted O.S.319/74 and got that decree set aside

establishing that the decree in O.S.687/62 was

obtained by fraud and therefore Pankajakshy also

has right over the properties claimed by

Neelakantan. It was also argued that though

Bhagavathy Meenakshy, the mortgagee under Ext.A2,

R.S.A.406/03 5

has been in possession of the property,

subsequently admitting the right of defendant over

10 > cents of the property, released her right in

favour of deceased defendant and therefore deceased

defendant was not an assignee mortgagee but got

released the mortgage right as he has the right of

equity of redemption and therefore respondents

are not entitled to the decree sought for. The

argument of learned counsel appearing for

appellants was that courts below did not properly

appreciate the contentions raised by appellants

and in the light of Ext.B1 and Ext.A2, it is to be

held that respondents 1 and 2 are not entitled to

the decree for redemption.

4. Learned counsel appearing for respondents 1

and 2 argued that Ext.A2 mortgage by Neelakantan in

favour of Bhagavathy Meenakshy is admitted by

deceased defendant and appellants and that mortgage

right of Meenakshy was assigned under Ext.B1 and

deceased defendant is only an assignee mortgagee

and respondents being the legal heirs of deceased

mortgagor are entitled to redeem that mortgage and

therefore there is no reason to interfere with the

R.S.A.406/03 6

decree for redemption granted by the trial court

and confirmed by appellate court and no substantial

question of law is involved.

5. Appellants are not disputing Ext.A2

mortgage. Under Ext.A2, Krishnan Neelakantan

created a mortgage over 21 = cents of plaint A

schedule property. Ext.A2 shows that before the

said mortgage some of the coconut trees were

mortgaged in favour of Krishna Panicker and Ext.A2

mortgage was created thereafter in favour of

Meenakshy. Ext.B2 shows that Bhagavathy Meenakshy,

the mortgagee under Ext.A2, got assigned the

mortgage right of Krishna Panicker. Therefore

apart from Ext.A2 mortgage Meenakshy also obtained

the mortgage right of Krishna Panicker in respect

of coconut trees. Ext.B1 establish that the

mortgagee Meenakshy transferred her right in favour

of defendant under the said document. The argument

of learned counsel appearing for appellants was

that in Ext.B1, it has been stated that the

property originally belonged to the tarwad and

there was a partition in the tarwad in 1105 M.E.

and thereafter there were two partitions on 1121

R.S.A.406/03 7

M.E. and 1122 M.E. and deceased defendant obtained

10> cents of right over the property and the

mortgagee released the mortgage right in favour of

deceased defendant and therefore the right

transferred under Ext.B1 is not an assignment of

the mortgage right but was releasing the mortgage

right in favour of the deceased defendant as he has

the right of equity of redemption. It is on that

basis the substantial questions of law namely the

legal effect of Ext.B1 vis-a-vis Ext.A1 was framed.

6. Ext.A1 partition deed shows that property

originally belonged to Keezhpurassery tarwad which

consisted of four thavazhies and thavazhies were

separated as per a partition deed in 1109 M.E. The

properties were thereafter divided under Ext.A1.21

= cents, which was mortgaged under Ext.P2 was

allotted to the thavazhi of Krishnan Neelakantan

and others. It was on the strength of the right

derived under Ext.A1, the property was mortgaged

under Ext.A2. Deceased defendant or appellants

have no right of equity of redemption of Ext.A2

mortgage, which vested with Krishnan Neelakantan.

It was never transferred to deceased defendant.

R.S.A.406/03 8

Appellants case was only that deceased defendant

had 1/4th right over the plaint A schedule

property and that 1/4th right would come to 10>

cents and therefore they have jenm right over that

property and under Ext.B1 the mortgagee released

the mortgage right in favour of deceased

defendant. The question whether deceased defendant

or the appellants being his legal heirs, have

independent right over the plaint A schedule

property is not to be decided in the suit. The

suit is only for redemption of Ext.A2 mortgage.

Ext.A2 mortgage was created by deceased

Neelakantan. So long as the deceased defendant or

appellants have no case that the right of equity

of redemption of Neelakantan vested even a

fractionally right on deceased defendant,

deceased defendant or appellants are not entitled

to contend that they have got a right of equity of

redemption of Ext.A2 mortgage. Therefore even if

it is stated in Ext.B1 that the mortgage right was

was released in favour of deceased defendant, it

could only be a transfer of the right of mortgagee

by Bhagavathy Meenakshy under Ext.A2. If that be

R.S.A.406/03 9

so, under Ext.B1 deceased defendant could only

claim the mortgage right, which originally vested

with Meenakshy under Ext.A2. Being the legal heirs

of the deceased mortgagor Neelakantan, respondents

are entitled to redeem the mortgage. I do not find

any error committed by the courts below either in

construing or interpreting Ext.A1 or the legal

effect of Ext.B1 as canvassed in the appeal.

Courts below rightly granted a decree for

redemption of Ext.A2 mortgage, on deposit of the

mortgage money. Appellants have to work out

their independent right, if any, over the plaint A

schedule properties in a separate suit. Though

appellants produced documents as additional

evidence, in the Second Appeal they are not

relevant or necessary to dispose the Second Appeal.

As the documents are not marked, appellants are

entitled to take them back.

Second Appeal dismissed but without cost.

M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006