IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 739 of 1998(D)
1. RAVEENDRANATHAN NAIR
... Petitioner
Vs
1. RAJAMMA
... Respondent
For Petitioner :SRI.S.VIDYASAGAR
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/04/2009
O R D E R
THOMAS P.JOSEPH, J.
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S.A.No.739 of 1998
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Dated this the 8th day of April, 2009
J U D G M E N T
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Courts below concurrently found that the possessory mortgage
created under Ext.A2, deed No.2170/54 is liable to be redeemed and
accordingly granted a decree. That is under challenge in this second
appeal at the instance of supplemental defendant No.3 in which the
following substantial questions of law are raised for a decision.
“1. Whether possession obtained by a
purchaser in public auction sale of property
held in execution proceedings taken pursuant
to an award passed under the Kerala Co-
operative Societies Act is not hostile to the rest
of the world?
2. Whether title obtained by such an
auction purchaser can be ignored or set at
naught in a Civil Suit instituted twelve years
after the sale and delivery of possession of the
property to him?
3. Whether a mortgage created in
favour of a Co-operative Society can be ignored
in collateral proceedings?”
S.A. No.739 of 1998
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2. Plaintiff died during the pendency of the suit and his legal
representatives were impleaded as supplemental plaintiffs. Parties are
referred to as plaintiff and defendants as in the trial court for
convenience.
3. According to the plaintiff a total extent of 3.11 acres
including the suit property – 1.08 acres – was acquired by Vilasini
Amma and others as per assignment deed No.3248/1122 M.E (Ext.A4
is its certified copy) and they created a possessory mortgage in favour
of defendant No.1, a minor then represented by Kumaran, her father
as guardian as per deed No.2170/54 dated 29.6.1954 (Ext,.A2 is its
copy). It was directed in the mortgage deed that the income from the
property was to be appropriated towards interest payable on the
mortgage money. While so, Vilasini Amma and others assigned their
right of redemption of the mortgage in favour of the plaintiff as per
Ext.A1, assignment deed No.1827/74. It is the possessory mortgage
created under Ext.A2 that the plaintiff sought to redeem on the
strength of Ext.A1. Supplemental defendant No.2 was later impleaded
as per order on I.A. No.2277 of 1978 alleging that the mortgagee in
possession (defendant No.1) transferred the property to
supplemental defendant No.2. The suit was decreed in favour of the
plaintiff. Supplemental defendant No.2 preferred A.S. No.14 of 1981
S.A. No.739 of 1998
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before the Additional District Court, North Parur which was transferred
to the Sub Court, North Parur and renumbered as A.S. No.33 of 1982.
While so, supplemental defendant No.2 died and her legal
representative was impleaded as appellant/supplemental defendant
No.3 (appellant herein). Appeal was allowed and the case was
remanded to the trial court giving defendant No.3 opportunity to file
written statement and contest the case. He filed written statement
contending that pursuant to the award obtained by the Co-operative
Society (hereinafter referred to as “the Society”) for the charged
debt of Vilasini Amma over the 3.11 acres including the suit property,
that property was sold in public auction by the sale officer pursuant to
the award passed against Vilasini Amma. Papputty Narayanan
purchased the said 3.11 acres and the sale sannad was issued in his
favour. He took delivery of the property. He assigned that property to
Subrahmonian as per Ext.B4, assignment deed dated 10.5.1961 for
valid consideration. Subrahmonian assigned the property to
supplemental defendant No.2 as per Ext.B3, assignment deed dated
1.6.1963 and on the death of supplemental defendant No.2, defendant
No.3 inherited the same and is in possession and enjoyment as its
absolute owner. Subrahmonian and his assignees possessed the
property as its absolute owners. Title if any of all others is lost by
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adverse possession and limitation. It is also contended that the
assignment deed in favour of the plaintiff is fraudulent and the
assignors of the plaintiff had no right over the property to be
conveyed. At any rate, defendant No.3 is entitled to get the value of
improvements. Trial court granted a decree in favour of the plaintiff
on 21.2.1983. Defendant No.3 challenged that judgment and decree
in A.S. No.110 of 1987. There was again a remand to the trial court for
fresh consideration of the contentious issues. The suit again ended in
a decree for redemption on 3.6.1994. Value of improvements was
disallowed as defendant No.3 did not produce evidence to show that
any improvement was effected. Defendant No.3 challenged that
judgment and decree in A.S. No.141 of 1994. Learned Additional
District Judge dismissed the appeal as per judgment dated 23.5.1997
which is under challenge in this second appeal.
4. It is not disputed that 3.11 acres including the 1.08 acres
which is the subject matter of the present proceeding was sold in
public auction at the instance of the Society for the debt allegedly due
from Vilasini Amma and others pursuant to the award obtained by the
Society. It is also not disputed that the property was purchased in
auction by Papputty Narayanan to whom sale sannad was issued.
Ext.B1 is that sale sannad dated 2.12.1958. It is also not in dispute
S.A. No.739 of 1998
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that the property was delivered over to Papputty Narayanan as seen
from Ext.B10, copy of the delivery report. It is while Papputty
Narayanan was in possession and enjoyment of the property that he
assigned it to Subrahmonian as per Ext.B4, assignment deed dated
10.5.1961 and Subrahmonian in turn assigned the property to
supplemental defendant No.2 as per Ext.B3, dated 1.6.1963. It is
contended by learned counsel for defendant No.3 that the possessory
mortgage created under Ext.A2 is a fraudulent and sham transaction
and that at any rate, the sale in public auction under the provisions of
the Kerala Co-operative Societies Act (for short, “the Act”) and the
Travancore-Cochin Revenue Recovery Act, 1951 (for short, “R.R. Act”)
is free of all encumbrances whatsoever over the property and
conferred absolute title in favour of the purchaser. Learned counsel
also contended that Vilasini Amma who created the charged debt in
favour of the Society was a member of that Society and hence the
“dispute” between Vilasini Amma and the Society is one required to
be decided under Sec.69 of the Act and hence that dispute could be
resolved only in accordance with the provisions of that Act.
According to the learned counsel if at all Vilasini Amma and others or
any of her assignees were aggrieved by the sale in auction their
remedy was to challenge that sale in accordance with the provisions of
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the Act. It is also contended that two members of the tarwad of
Vilasini Amma (Aravindaksha Menon and Ravindranadha Menon) had
challenged Ext.A2 possessory mortgage in respect of the suit
property and certain other transactions concerning certain other
properties effected by Vilasini Amma and others allegedly on behalf of
the tarwad, in O.S. No.70 of 1970. But that suit was settled, plaintiffs
therein gave up their contention that the possessory mortgage created
as per Ext.A2 and other transactions were not for the necessity of the
tarwad and hence those transactions are not binding on them.
Learned counsel contended that plaintiffs in O.S. No.70 of 1970 being
members of the tarwad and if the suit property (along with other
items) belonged to the tarwad, plaintiffs on behalf of the tarwad ought
to have challenged Ext.B1, sale sannad and sought redemption of
mortgage in O.S. No.70 of 1970. It is contended by learned counsel
that Ext.B5, copy of the plaint in O.S. No.70 of 1970 referred to a
partition effected in the tarwad of Vilasini Amma and others on
12.4.1967 and hence at any rate, the tarwad stood disrupted by that
partition. If that be so, the members of the tarwad were not entitled to
assign the right of redemption in favour of the plaintiff as per Ext.A1,
document No.1827/74. According to learned counsel it was only since
the members of the tarwad were not entitled to redeem the mortgage
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as per Ext.A2 at their instance that Ext.A1 was executed in favour of
the plaintiff as an experiment to attempt at redemption of the
mortgage allegedly created as per Ext.A2. Learned counsel requested
that the documents produced along with I.A. Nos.1432 of 2005 and
625 of 2009 be received as additional evidence.
5. Learned counsel for the plaintiff in response contended
that the courts below have concurrently found that suit property
belonged to the tarwad of Vilasini Amma (with herself as the
Karanavathy) and that the debt for which the property was sold at the
instance of the Society is not proved to be a debt of the tarwad binding
the tarwad as such. The Society sold the property of the tarwad as if it
belonged to Vilasini Amma. Therefore the auction sale cannot bind
the tarwad. For that reason delivery of the property in favour of
Papputty Narayanan and the subsequent assignments cannot bind
the tarwad. Learned counsel contended that the said finding being
one of the fact based on evidence, there is no scope for interference
with it in the second appeal. It is also contended that once sale in
auction is not binding on the tarwad, that cannot affect the
possessory mortgage created as per Ext.A2 or the assignment or right
of redemption in favour of the plaintiff as per Ext.A1. Learned counsel
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contended that the documents produced in the second appeal cannot
be received as additional evidence. According to learned counsel no
satisfactory explanation is given for non-production of the said
documents in any of the courts below in spite of the fact there were
two rounds of litigation in those courts. It is contended by learned
counsel that the transactions referred to in the documents produced
in the second appeal do not relate to the suit property or the debt to
the Society referred to in Ext.B1. I heard the counsel on both sides on
I.A. No.1432 of 2005 and I.A. No.625 of 2009 also along with this
appeal.
6. Exhibit B1 is the sale sannad dated 2.12.1958 issued by
the Deputy Registrar of Co-operative Societies in favour of Papputty
Narayanan. It states that the property was sold in public auction on
16.11.1957 in accordance with the provisions of the R.R. Act pursuant
to award No.284 of 1956 of the Deputy Registrar, Co-operative
Societies, Kottayam. The sale was confirmed in favour of Papputty
Narayanan and he paid the purchase price. The sale was published
as per Sec.40 of that Act. Section 2(a) of the R.R. Act defines “public
revenue due on land” as including among other things assignment in
kind or money charged on lands and payable to the Government
(according to the learned counsel for defendant No.3, money payable
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to the Society is the money payable to the Government). Section 44
of the R.R. Act states that all lands brought for sale on account of
arrears of public revenue due thereon shall be sold free of all
encumbrances. Section 35 of the (Co-operative Societies) Act provides
for a first charge subject of course to any prior claim of the
Government in favour of the Society for any debt to the Society from
its member, past or deceased member as provided therein and sub-
sec.(2) prohibits transfer of any property which is thus subject to a
charge, except with the previous permission in writing of the Society
concerned. Learned counsel for defendant No.3 contends that sale
on 16.11.1957 was free from all encumbrances including the
possessory mortgage in favour of defendant No.1 as per Ext.A2 of the
year 1954 and the right of redemption cannot and does not survive
after Ext.B1.
7. It is not very much in dispute before me that if the sale of
the property in public auction followed by the sale sannad (Ext.B1) in
favour of Papputty Narayanan bound the tarwad and accordingly the
suit property, that sale must have precedence over any other
transaction in respect of the property and that such sale would be free
of all encumbrances over the property. Therefore the crucial issue for
a decision is whether Ext.B1 bound the tarwad and the property of
S.A. No.739 of 1998
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the tarwad.
8. It is not in dispute that Vilasini Amma and her children
belonged to the Hindu, Nair Community which followed
Marumakkathayam law of succession. Section 2(3) of the Travancore
Nair Act defines ‘tavazhy of a female’ as meaning “a group of persons
consisting of that female and her issue how-low-so-ever in the female
line or such of that group as are alive”. As per sub-sec.(6), ‘tarwad’
“means and includes all the members of a Marumakkathayam family,
with community of property”. Vilasini Amma and her children thus
constituted a natural group and formed a sub tarwad. Exhibit A4 copy
of assignment deed No.3848 of 1122 M.E. shows that the acquisition of
the property was by Vilasini Amma and her daughter, Visalakshy (other
children were born later). Exhibits A4 further states that the
consideration for purchase of that property was raised by Vilasini
Amma and her daughter by executing an agreement for sale of
another item of property of the tarwad of Vilasini Amma situated in
Ernakulam Village to Kattikaran Chacko Ouseph and that the assignor
under Ext.A4 received the sale consideration from the said Chacko
Ouseph. The sale consideration referred to in Ext.A4 could be traced
to the sale of property of the tarwad of Vilasini Amma and others. In
S.A. No.739 of 1998
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Lakshmi v. Ananadan (1982 KLT SN 36 – Case No.56) and
Sarojini Amma v. Abubacker (1986 KLT 944) this Court held
that once it is found that the acquirers constituted a natural group and
formed a tavazhi by themselves the acquisition should be presumed
to be on behalf of that tavazhi. In this case, Vilasini Amma and her
only child then in existence, daughter Visalakshy constituted a natural
group and formed a tavazhi. Hence the acquisition as per Ext.A4 must
be presumed to be for the tavazhi. Apart from that presumption
Ext.A4 states that purchase money was raised by entering into an
agreement for sale of an item of property belonging to the tarwad.
Subsequent to Ext.A4, Vilasini Amma and Karunakaran Nair begot two
other children also. Exhibit A2 is the mortgage deed No.2170 of 1954
executed by Vilasini Amma on her own and by her husband,
Karunakaran Nair representing their minor children Visalakshy,
Aravindaksha Menon and Ravindranadha Menon. Exhibit A1,
assignment deed No.1827/84 is also executed by the said persons.
From Exts.A1, A2 and A4 it is evident that the acquisition of the 3.11
acres including the suit property was for the tavazhi of Vilasini Amma.
The courts below have rightly held so.
9. The next question is whether Ext.B1, sale sannad bound
S.A. No.739 of 1998
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the tarwad and its property. Exhibit B1 states that for the amount due
to the Society as per award No.284 of 1956 with Karunakaran Nair
(husband of Vilasini Amma) as respondent No.1 on his own behalf and
on behalf of minor children Visalakshy, Aravindaksha Menon and
Ravindranadha Menon and Vilasini Amma as respondent No.1 on her
own and on behalf of the minor children referred to above, property
belonging to Vilasini Amma was sold by the authorised officer on
16.11.1957. Exhibit B1 states in the beginning that the property
belonging to Vilasini Amma and at a later stage sates that the right
which Vilasini Amma and her husband as owners had in the property
was sold in auction and conveyed to Papputty Narayanan.
10. It is contended by learned counsel for defendant No.3 that
even a reading of Ext.A2 and the documents produced in the second
appeal would show that debt to the Society incurred by the tarwad was
for the necessities of the tarwad. The document produced in this
appeal along with I.A. No.1432 of 2005 is the kuri agreement No.1468
of 1953 referred to in Ext.A2. Exhibit A2 states that money is raised
by that mortgage to discharge the liability of the Taluk Co-operative
Bank. That certainly is not the debt to the Society referred to in
Ext.B1. Document No.1468 of 1953 of course states that the debt
referred to therein was created for the necessities of the tarwad. But
S.A. No.739 of 1998
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that is not shown to be the debt referred to in Ext.B1 and which
culminated in the award referred to in Ext.B1 was for an on behalf of
the tarwad and bound the tarwad.
11. Along with I.A. No.625 of 2009, copy of mortgage deed
No.2171 of 1954 is produced by defendant No.3 to be received as
additional evidence. That is a mortgage deed executed by the same
executants as in Ext.A2 on the same day in favour of defendant No.1,
executed by her father, Kumaran. That document refers to certain
debts created in favour of the Co-operative Bank. There again it is not
shown that any of those debts is the debt referred to in Ext.B1.
Defendant No.3 should have produced the copies or summoned the
original of the relevant documents as per which the debt referred to in
Ext.B1 was created and shown that the said debt was created for and
on behalf of the tarwad. No sufficient or justifiable reason is also
stated to receive the documents produced in this appeal as additional
evidence. The affidavits in support of the applications to receive
additional evidence contain the same averments and state that
defendant No.3 was searching for the documents and obtained the
certified copies, there was long delay and the same could be obtained
by him only at “this stage”. It is true that second appellate court has
the power to receive additional evidence under Order XLI Rule 27 of
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the Code of Civil Procedure but not for a mere asking. The Court must
be satisfied that there is justifiable reason as referred to in Order XLI
Rule 27 of the Code which prevented the party concerned from
producing such evidence in the courts below. It is not as if the
documents produced along with the applications could be received in
evidence to the prejudice of the opposite party. Necessarily they
must get an opportunity to produce contra evidence if any or explain
away the circumstances which may be created against them. I have
also to bear in mind that 3 decades plus 2 years have elapsed since
the parties started this litigation. As pointed out by the learned
counsel for the plaintiff, twice there were remands by the first
appellate court whatever be the reason thereof. If defendant No.3
were diligent, he could have produced the relevant documents in any
of the courts below before which the litigation was pending for 21
years. On the facts and circumstances of this case I am not inclined to
think that defendant No.3 could be permitted to adduce additional
evidence or that the documents produced are relevant or necessary
for a just decision of this appeal. Hence I.A. Nos.1432 of 2005 and 625
of 2009 will stand dismissed.
12. Exhibit B1 does not show or indicate that the debt was for
the necessities of the tharwad. Going by Ext.B1 it would appear that
S.A. No.739 of 1998
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Karunakaran Nair (husband of Vilasini Amma) was also a respondent
on his own as well in the case which ended in award No.284 of 1956.
That would indicate that he was a party on his own in the loan
transaction. For the debt of Karunakaran Nair the tarwad property
could not have been sold. It is also pertinent to note that defendant
No.3 has no case in his written statement that the debt to the Society
was created by the tarwad or for any legal necessities of the tarwad.
Instead, the contention raised is that the debt was incurred by Vilasini
Amma. Exhibit B1 would show that the property was sold in public
auction as if it belonged to Vilasini Amma or Vilasini Amma and her
husband. There is no reference in Ext.B1 that the property belonging
to the tarwad was brought to sale. There is no presumption attached
to the sale under the Act or the R.R. Act or to Ext.B1 that it bound
the tarwad or that the debt was incurred for the necessities of the
tarwad. As per Sec.27 of the Travancore Nair Act, a debt created by
the Karanavan or other managing member of a tarwad shall not bind
that tarwad unless it is for the necessity of that tarwad. Though
Vilasini Amma was also a party in the Arbitration case referred to in
Ext.B1, there is no indication that she created that debt for the
necessities of the tarwad. The undivided share of Vilasini Amma could
not have sold in auction. From the mere fact that the children also
S.A. No.739 of 1998
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were parties in the arbitration proceedings it cannot be presumed
that the debt was incurred for family necessity. The loan transaction
referred to in Ext.B1 is also not capable of raising any presumption
that the debt was incurred for the necessity of the tarwad. As I stated
above, it is not even pleaded so, by defendant No.3. Nor did he
attempt even to prove that, by getting the relevant documents from
the Society concerned.
13. Section 31 of the Travancore Nair Act states that no decree
shall bind the tarwad unless it is obtained against the Karanavan as
such. Learned counsel for defendant No.3 would meet Sec.31 with
the non-obstante clause in Sec.35 of the Act which conferred first
charge for the debt of the Society. But Sec.35 of the Act which merely
dealt with the creation of charge has nothing to do with the binding
nature of decree referred to in Sect.31 of the Travancore Nair Act.
14. This Court in Padmanabhan Nair v. Vasudevan
Nair (1959 KLT 984) held that it is not necessary that Karanavan
of the tarwad was impleaded as such in the proceeding to bind the
tarwad. Even assuming so, there is no mention in Ext.B1 and
defendant No.3 did not adduce evidence also to show that any of the
respondents in award No.284 of 1956 represented the tarwad.
S.A. No.739 of 1998
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Karunakaran Nair was not competent to represent his minor children
and I stated that it is not shown who actually had incurred the debt
and for what purpose whatsoever.
15. Reliance is made by defendant No.3 on Exts.B2, B5 and
B6. Exhibit B5 as I stated above is the copy of plaint in O.S. No.70 of
1970 filed by Aravindaksha Menon and Ravindranadha Menon, two
junior members of the tarwad headed by their mother, Vilasini Amma.
Exhibit B5 would show that plaintiffs therein claimed that the property
referred to therein including the suit property was tarwad property
and that the transactions including Ext.A2 referred to therein were
not created for the necessity of the tarwad. But as seen from Exts.B2
and B6, plaintiffs therein gave up that contention. Trial court
observed that the action brought for setting aside the transaction and
for recovery of possession of the property though by two junior
members was for and on behalf of the tarwad but they could not have
given up the claim to bind the tarwad. None of the other members of
the tarwad who were defendants in O.S. No.70 of 1970, nor even
defendant No.1, mortgagee under Ext.A2 (represented by her father
and guardian) are parties in Exts.B2 and B6. Therefore the
compromise said to have been effected by the plaintiffs in O.S. No.70
S.A. No.739 of 1998
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of 1970 and defendant No.9 therein (who was not at all concerned with
the present suit property which is item No.3 therein) cannot bind the
tarwad.
16. It is contended by learned counsel that even as per the
provisions of the Travancore Nair Act, right of the members of the
tarwad can arise only once and that right arose when two junior
members filed O.S. No.70 of 1970 but no challenge was made against
Ext.B1. Hence the assignee of the members of the tarwad is not
entitled to sue for redemption of the mortgage, it is contended. It is
also contended that the tarwad stands disrupted by the partition on
12.4.1967 referred to in paragraph 6 of Ext.B5, copy of plaint in O.S.
No.70 of 1970. It is however, seen that all the members of the tarwad
have joined to execute Ext.A1 in favour of the plaintiff transferring
their right of redemption. Assuming that the joint family stood
disrupted by the partition on 12.4.1967 referred to in Ext.B5, all the
members of the tarwad who had a separate share in the property
consequent to the alleged disruption of the joint family have assigned
their right jointly in favour of the plaintiff as per Ext.A1.
17. Since it is not shown that the debt referred to in Ext.B1
bound the tarwad, the contention raised by defendant No.3 that the
sale in auction referred to in Ext.B1 is free from all encumbrances
S.A. No.739 of 1998
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whatsoever based on the provisions of the Act and the R.R. Act should
fail.
17. Another contention raised is that since Vilasini Amma was
a member of the Society, challenge to Ext.B1 could only be under
the provisions of the Act and not collaterally in the suit for redemption.
The contention is equally not sustainable as the plaintiff is entitled to
ignore Ext.B1 if it has no binding effect on the tarwad or its property
and consequently, on Ext.A2.
19. Learned counsel for defendant No.3 then contended that
Ext.A2 has not come into effect and that it is a sham transaction, at
any rate created fraudulently. Learned counsel contended that even
the mortgage money referred to in Ext.A2 was not a reality but, was
bogus. Reference made by learned counsel to the mortgage money
mentioned in Ext.A2 as “said to have been received” is not a
reference to the mortgage money as such. The reference in Ext.A2
about the money “said to have been received” is to the manner in
which the mortgagee is said to have raised the amount by sale of an
item of property belonging to one Mathew. Exhibit B1 shows that the
award was passed in 1956, sale of the property in auction was on
16.11.1957 and Ext.B1 was issued on 2.12.1958. Exhibit A2 is
executed in 1954. There is no reason to think that it was in
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anticipation of the award in 1956, sale in auction on 16.11.1957 and to
defeat all those things that Ext.A2 was executed in 1954. That,
possession of the property has gone to the mortgagee under Ext.A2 is
evident from Ext.B10, copy of delivery report produced and relied on
by defendant No.3. Exhibit B10 states that Kumaran (father and
guardian of defendant No.1, the possessory mortgagee under Ext.A2)
was residing in the property (3.11 acres) adjoining the road towards
the western portion of the said property and that he voluntarily
vacated the property. On the back of Ext.B10, Kumaran describing
himself as the person in possession of the property (3.11 acres) has
signed as a witness. Exhibit B10 shows that Kumaran (certainly on
behalf of defendant No.1, the mortgagee under Ext.A2) was in
possession of the 3.11 acres including the suit property. There is no
case or evidence that Kumaran got possession of the property
otherwise than under Ext.A2. Therefore the contention that Ext.A2 is a
sham transaction or created fraudulently cannot stand. The contention
that Subrahmonian and his assignees were holding the property
adversely to all others also cannot stand. Courts below have held and
rightly, that mere length of possession is not sufficient to extinguish
title. Possession with the necessary hostile animus is not established.
Moreover, the assignee of the right to redeem can and need file the
S.A. No.739 of 1998
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suit for redemption and recovery of possession on the expiry of the
period of mortgage stated in Ext.A2. In view of what I have stated
above, the substantial questions raised are answered accordingly
against the appellant/supplemental defendant No.3.
Second appeal is dismissed. No costs.
Civil Miscellaneous Petition No.1819 of 1999 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
THOMAS P.JOSEPH, J.
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S.A. NO.739 OF 1998
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J U D G M E N T
8TH APRIL, 2009