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.
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R.S.A. NO.406 OF 2003
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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.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006