KRISHNA PILLAI PADMANABHA PILLAI Vs. SANKARA KURUP PADMANABHA KURUP
LAWS(KER)-1955-3-17
HIGH COURT OF KERALA
Decided on March 21,1955

KRISHNA PILLAI PADMANABHA PILLAI Appellant
VERSUS
SANKARA KURUP PADMANABHA KURUP Respondents

JUDGEMENT

- (1.) This Second Appeal by the Plaintiff arises out of a suit for redemption of a mortgage. The suit was dismissed by the courts below on the ground of limitation. The facts necessary for the decision of this case may be briefly stated. The property described in the plaint schedule belonged to the plaintiffs tarwad and it was mortgaged with possession to one Kochummal some time before the year 1043 M.E. Padmanabhan Krishnan of the plaintiff's tarwad is stated to have taken an assignment of the mortgage under Ext. A dated 26.3.1068. He was in possession till he died in the year 1116. Padmanabhan Krishnan who was a junior member when he took Ext. A became the Karnavan of the Tarwad in the year 1071 and he remained as such till his death. The plaintiff claimed to have obtained the equity of redemption in partition of tarwad properties and he instituted the suit on 30.11.1120. Padmanabhans widow and children were in possession on that date. The plaintiff alleged that the mortgage was acknowledged by Padmanabhan Krishnan in certain documents and that the acknowledgments saved the suit from the bar of limitation. It was also pleaded that since Padmanabhan Krishnan was the Karnavan from 1071 till 1116, a suit for redemption could not be maintained on behalf of the tarwad and that the suit instituted within twelve years of his death was not barred. The 2nd defendant contended inter alia that the suit was barred by limitation, that the alleged acknowledgments were not acknowledgments in law and that the alleged disability of the tarwad to sue for redemption during the period when Padmanabhan Krishnan was the karnavan was not a valid ground of exemption from the law of limitation. The courts below upheld this defence and dismissed the suit.
(2.) The only question for decision is whether the suit is barred by limitation. The appellant relied on the acknowledgments pleaded in the plaint as well as the fact that Padmanabhan Krishnan was the Karnavan from 1071 to 1116. The earliest of the so called acknowledgments is that contained in Ext. A dated 26.3.1068. As the suit is filed more than fifty years the period prescribed by Art.136 of the Travancore Limitation Act from 26.3.1068, Ext. A cannot by itself save the suit from the bar of limitation. The next document alleged to contain an acknowledgment is Ext. E, copy of an Udampady dated 1.11.1082. This does not specifically refer to the mortgage. Ext. F, copy of the Will executed by Padmanabhan Krishnan on 5.3.1110 is the next acknowledgment relied on. The relevant passage in Ext. F is extracted in the judgments of the courts below. All that is stated in that clause is that the property was mortgaged by Narayanan Ayyappan a former karanavan in the year 1010, that it was not redeemed till 1067, that the mortgagee thereby acquired the equity of redemption and that Padmanabhan Krishnan had therefore to take a release of their full rights to the property. There is no conscious admission by Padmanabhan Krishnan that the relationship of mortgagor and mortgagee was subsisting on that date. On the other hand, it is definitely stated that the mortgagee had acquired title by the failure to redeem the mortgage and that he had acquired full rights to the property under Ext. A. This does not amount to an acknowledgment of liability to be redeemed. What is stated in Ext. F is a repudiation of such liability. Ext. F cannot therefore operate as a valid acknowledgment.
(3.) It was also contended on behalf of the appellant that the period between 1071 and 1116 when Padmanabhan Krishnan was the Karnavan of the plaintiffs tarwad should be excluded in computing the period of limitation, as a suit could not be instituted for redemption of the mortgage on account of the fusion of the rights of mortgagor and mortgagee. Reliance was placed on the decisions in Dwijendra Narain Roy v. Joges Chandra De and others ( AIR 1924 Cal. 600 ), Sm. Sarat Kamini Dasi v. Nagendra Nath Pal ( AIR 1926 Cal. 65 ); Midnapore Semindari Co. v. Naba Kumar Singh ( AIR 1950 Cal. 298 ); Jateendra Chandra v. Rabateemohan Das ( AIR 1935 Cal. 333 ); Prabhakar Nilkanth v. Chandrakant Narayan Rao ( AIR 1949 Nag. 178 ) and Arithottathu Swamiar v. Chacki Mamma and others ( 1952 KLT 281 ), in support of the proposition that there may be satisfaction of a claim or the cancellation of a cause of action operating to suspend the rights of the plaintiff, who may on removal of the satisfaction or cancellation avail of a fresh cause of action which arises by reason thereof. The argument was that the claim for redemption should be treated as having been satisfied when Padmanabhan Krishnan became the karnavan as he was the only person competent to sue on behalf of the tarwad and that when this satisfaction ceased on his death, the right to sue became reanimated. There is an obvious fallacy in this argument because it assumes that the karnavan alone can sue on behalf of the tarwad. Even before the Nair Act of 1088 courts in Travancore have recognised the right of junior members of a Marumakkathayam tarwad to sue for redemption of tarwad properties when the interest of the tarwad as a whole demanded such redemption for the benefit of the tarwad. See Padmanabhan Raman v. Raman Narayanan (18 TLR 31); Raman Ramakrishnan and another v. Raman Aiyappan (FB) (3 TLJ 179); Narayanan Parameswaran v. Vikraman Mathevan (30 TLR 67) and Sanku Govindan v. Velayudhan Krishnan (7 TLJ 260). It was observed in 30 TLR 67 at p. 70:- The incompetency of junior members to sue to redeem tarwad mortgages is not an objection that is incapable of being waived or one, like a question of limitation or jurisdiction, which may be raised in appeal for the first time. That incompetency is neither absolute in itself nor invariable in stringency. Its applicability and force are dependent on circumstances. It is imposed in the interest of the tarwad and its limits are reached 'when the interests of the tarwad as a whole demand such redemption.' ";


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