Decided on August 28,1963


Referred Judgements :-


Cited Judgements :-



- (1.)S.A. 287 of 1959 arises out of O.S. 83 of 1120, S.A. 288 of 1959 arises out of O.S. 1096 of 1120, S.A. 289 of 1959 arises out of O.S. 710 of 1121 and S.A. 1216 of 1961 arises out of O.S. 79 of 1120. One Kurumpa had two sons, Kesavan and Narayanan and four daughters, Kunchekki, Lekshmi, Parvathi and Nangeli. Lekshmi had a daughter Appili, who was the mother of plaintiffs 1 to 3 and the grandmother of the 4th plaintiff in O.S. 1096 of 1120. Parvathi was the mother of the first plaintiff in O.S. 83 of 1120, and of Unichekki. Kunchekki was the grandmother of the plaintiff in O.S. 710 of 1121. Narayanan was the father of the plaintiff in O.S. 79 of 1120. Kesavan had a son Kunju Pillai, who died leaving his widow the first defendant, and his children, defendants 2 to 4. Defendants 1 to 4 are common in the four suits. They are members of the Kammala community and are governed by Hindu Law as modified by custom. On the 6th Idavom, 1062, a mortgage Ext. C was executed by Kesavan, Narayanan, Kunchekki, Appili, Unichekki and Nangeli aforesaid, for a term of five years. On the 20th Medom, 1065, Kesavan who was the senior male member in the family gave three udampadies, Ext. B in favour of Kunchekki, Ext. D in favour of Appili and Ext. E in favour of Unichekki, each for an 1 6th share of the equity of redemption of the property, reciting that a partition had taken place between Kurumba's children, and that the udampadies were executed by way of implementing it. After these three dispositions and a fourth which is not in evidence in favour of Nangeli, there remained a 2/6th share of the equity of redemption for Kesavan and Narayanan. In the year 1116, Kunju Pillai and his sons defendants 2 to 4 sued for the redemption of Ext. C and obtained Ext. H judgment, by which the plaintiffs were allowed to set off the mortgage amount, against arrears of michavarom payable by the mortgagee the recovery of which was already barred by limitation; this was after overruling the contention of the mortgagee that the plaintiffs were liable to him for arrears of rent of a building on the property which had been adjusted by him towards michavarom and that nothing was therefore payable as michavarom. It thus transpired, that after setting off the barred arrears of michavarom nothing was payable to the mortgagee towards the mortgage amount, and the property was recovered in the year 1119. O.S. 79 of 1120 the suit by Narayanan's son, was for partition of a half share in the 2/6th part which remained for Kesavan and Narayanan after the four dispositions. O.S. 83 of 1120, O.S. 1096 of 1120 and O.S. 710 of 1121 were respectively for declaration of title on the strength of Exts. E, D and B respectively, and for recovery of possession of 1/6th share of the property in each suit.
(2.)They were contested by defendants 1 to 4. According to them, Kesavan was incompetent to give the udampadies which were not therefore valid, the udampadies did not take effect, and the suits having been instituted more than 50 years after the expiry of the term of Ext. C were barred by limitation. The suits were tried jointly and were decreed by the court of first instance. Defendants 1 to 4 appealed to the Subordinate Judge against the decrees in O.S. 83 and 1096 of 1120 and O.S. 710 of 1121 but not against the decree in O.S. 79 of 1120. He allowed the appeals, holding that the suits were barred under Art.136 of the Travancore Limitation Act, 1100 which corresponds to Art.148 of the Indian Limitation Act. Second Appeals 287, 288 and 289 of 1959 have been preferred by the respective plaintiffs against the decrees of the Subordinate Judge dismissing their suits. After the decision of the Subordinate Judge in the three appeals, defendants 1 to 4 preferred appeal against the decree in the fourth suit O.S. 79 of 1120. The District Judge who heard the appeal condoned the delay in presenting it, and allowed the same dismissing the suit as time-barred. S.A. 1216 of 1961 has been preferred by the legal representative of the deceased plaintiff in O.S. 79 of 1120.
(3.)The plaintiffs in the four suits have taken the stand, that the udampadies were valid and have taken effect, and so they were in the position of coowners. It was on that footing, that the oases were disposed of in appeal as barred by limitation. The first question is whether the suits are governed by Art.136 aforesaid as contended by the defendants, or by Art.132 of the Travancore Act corresponding to Art.144 of the Indian Act as contended by the plaintiffs. The main argument of learned counsel for the plaintiffs was, that as nothing had to be paid to the mortgagee to recover possession or in other words the mortgage having been extinguished by the mortgage money being set off against arrears of michavarom, there was neither in fact nor in law a redemption of the mortgage but only recovery of possession of the property, that the legal representatives of Krishnan who recovered the property pursuant to Ext. H were in law entitled only to recover the share of Krishnan and not that of any of the co-mortgagors, that having recovered the whole property, the suits were governed by Art.132 and were therefore not barred. It was also urged that even the right of a co-mortgagor who redeems a mortgage by payment, being only to reimburse himself to the extent of the mortgage money which he had to pay in excess of his own share, in the present case no payment having taken place, no question of reimbursement arises and the right of the other co-mortgagors is simply to recover property as from a person in wrongful possession.

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