VASU NAMBISAN Vs. KESAVAN NAIR
LAWS(KER)-1963-7-13
HIGH COURT OF KERALA
Decided on July 19,1963

VASU NAMBISAN Appellant
VERSUS
KESAVAN NAIR Respondents


Referred Judgements :-

MARTINDALE V. PALKOR [REFERRED TO]
BELLE V. BUTCHER [REFERRED TO]
KIRIRI COTTON CO. LTD. V. DEWANI [REFERRED TO]
THAKURIAN HARINATH KAN V. THAKURIAN INDER BAHADUR SINGH [REFERRED TO]



Cited Judgements :-

CHERIA MAMMAD HAJI VS. RAGHAVAN [LAWS(KER)-1970-9-21] [REFERRED TO]


JUDGEMENT

- (1.)The plaintiff is the appellant. This appeal arises from a decree in a suit for redemption. The plaintiff instituted the suit on the strength of Ext. A2, a melotti, to redeem Ext. B2 mortgage in favour of the 1st defendant in respect of the plaint property. The Trial Court decreed the suit, but on appeal by the defendants that decree was reversed and hence this Appeal.
(2.)There are three items of properties scheduled to the plaint. These properties belong to Kanamanam temple. It was originally a private temple belonging to the 9th defendant's tarwad. But in 1935 it was declared by the Board's order under S.18 and 84 of the Hindu Religious Endowments Act, Madras Act 2 of 1927, hereinafter called the Act, to be a temple as "defined in the Act and that the provisions of the Act would apply to it. The tarwad executed Ext. B1 mortgage on 11-3-1888 M. E. to the plaintiffs predecessor in interest. Several years after viz., on 28-8-1943 the 9th defendant executed a puisne mortgage, Ext. B2, for Rs. 400/- to the 1st defendant for a period of 6 years authorising him to redeem Ext. B1 mortgage. Ext. Al is the kachit executed by the 1st defendant. The first defendant, in pursuance to the direction in Ext. B2, demanded the plaintiff to surrender possession of the property to him. By that time, the plaintiff had created a submortgage under Ext. B11 on 11-4-1938 in respect of items 2 and 3. Under Exts. B3 and B4 the properties were surrendered by the plaintiff and the submortgagees to the 1st defendant, and the 1st defendant thereby came into possession of the three items. It was while matters stood thus that Ext. A2 mortgage was executed by the 9th defendant in 1945 for a period of twelve years in favour of the plaintiff authorising him to redeem Ext. B2 mortgage in favour of the 1st defendant. The suit was for redemption of Ext. B2 mortgage or in the alternative, for restitution of the property on the ground that Exts. B3 and B4 were void, on account of mistake.
(3.)The suit was resisted by the 1st defendant on the ground that the plaintiff had no title to redeem on the basis of Ext. A2 as the property belonged to a temple coming within the purview of the Act and that the 9th defendant had no right to execute Ext. A2 mortgage without the sanction of the Board or the Committee functioning under the Act and that Exts. B3 and B4 were not vitiated by any mistake of fact.
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