FRENCHIKKOSE THOMMI Vs. CHACKO DEVASIA
HIGH COURT OF KERALA
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(1.) S. A. No. 1012 of 1960 is by defendants 4 and 6 and S. A. No. 1028 of 1960 by defendants 1 and 2 in O. S. No, 149 of 1957 on the file of the Court of the Munsif of Changatfa-cherry. In both the second appeals the contesting respondents are the plaintiffs.
(2.) THE suit was for redemption of a melvaip-pa pattern, transaction evidenced by ext. P. r of the year 1079. The suit properties and other pro-perties belonged in ienm to the Mariyappally Kot-taram and Ext. p. i was executed by the members of the said Kottaram in favour of a person named Pattathil Krishna Pillai. The rights of the Kottaram devolved on the members of the Nedumpu-rathu Koikkal under. Ext. P. 2 of 1083 and thereafter, the properties of the Koikkal were partitioned under Ext. P. 14 of 1116, being the judgment in the suit for partition, O. S. No. 673; of 1109 of the Munsifjs Court of Thiruvalla. The suit properties, which formed part of the properties mortgaged under Ext. p. i were set apart to some members of the Koikkal from whom the plaintiffs purchased the equity of redemption under ext. P-3 in 1957. In 1120 the Pattathil family, the mortgagee under Ext. P. r, effected a partition, of the family properties under Ext. P. 4. Under the said partition the mortgage right under Ext. p. i was divided into three equal shares. Defendants 1 and 2 were allotted the suit properties with a charge thereon to the extent of a third of the mortgage amount. Another third share of the properties was allotted to Janaky Amma and the rest was allotted to the 9th executant in Ext. P. 4. Janaky Amma died and in a subsequent arrangement D. W. 5, the brother of defendants r and 2, obtained the share of Janaky Amma. Thereafter, he purchased under Exts. P-5 and P. 6 the equity of redemption from the respective sharers in the mortgagor-family in the items allotted to Janaky Amma under Ext. P. 4- As already indicated, the plaintiffs purchased the equity of redemption in the suit items from those members of the mortgagor family, to whom that right in those items was allotted in the partition. The suit was subsequently brought for redemption of the suit items on deposit of a third of the mortgage amount as stipulated in Ext. p. . j.
(3.) DEFENDANTS i and 2, as is already clear are the present owners of the mortgage right over the suit properties. Defendants 3 onwards are tenants under the said mortgagees, defendants 4 and 6 being the contesting ones. Defendants and 2 contended that the suit transaction Ext. p. i was not a mortgage but only a kanom. They further contended that the suit was bad as it was for partial redemption. Defendants 4 and 6 supported the aforesaid contentions of defendants and 2 and in addition contended that they were entitled to cost of reclamation in case the court came to the conclusion that they were to be evicted. The plaintiffs claimed mesne profits at 654 standard paras of paddy per year, which was also disputed by the defendants. The trial court held that Ext. p. i was a possessory mortgage; that the suit was not bad for partial redemption; that defendants 4 and 6 were entitled to Rs. 344. 84 np. as cost of reclamation; and that the defendants were liable to mesne profits at the rate of 650 standard paras of paddy per year. The trial Court further held that defendants 1 and 2 were primarily liable for mesne profits at the rate of 400 paras of paddy and for the remaining 250 paras of paddy alone defendants 4 and 6 were liable.;
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