DAMODARAN VASUDEVAN NAMPOORI Vs. ULAHANNAN OUSEPH
HIGH COURT OF KERALA
Damodaran Vasudevan Nampoori
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(1.) This second appeal is by the plaintiff in a suit for redemption of a possessory mortgage executed by him in favour of the defendant on Dhanu 18,1121.Ex.A is the instrument of that mortgage.The defendant contended that though he came into possession as a mortgagee he had subsequently purchased the equity of redemption and that thereupon the mortgage merged in the equity of redemption and thereafter he had been enjoying the property in absolute rights and therefore the suit in redemption did not lie.In the replication the plaintiff pleaded ignorance of the defendant's purchase of equity of redemption.At trial,the deed of sale of equity of redemption to the defendant executed by the plaintiff's father,who is admittedly the karnavan of the illom,was proved as Ex.I.It is dated Chingom 22,1122.The Munsiff held Ex.I invalid as it had not the written consent of all the major members of the illom as required by S.5 of Travancore Malayala Brahmin Act,III of 1106,and was not proved to be supported by consideration and illom necessity and decreed redemption.On a controversy regarding the residual rent(pattamicham)payable under the mortgage,the plaintiff took the matter in appeal and there the defendant preferred cross objection regarding the decree in redemption.The Sub ordinate Judge held:
"On the date of the mortgage there were 3 members in the plaintiff's illom .,plaintiff,his father and his father's brother.Plaintiff was in actual possession of the properties and while he was in actual possession he executed Ex.A.the mortgage deed.The plaintiff's father was the karnavan of the illom at that lime.There is no dispute about the fact that the plaint property belonged to the illom.Plaintiff is admittedly a junior member.The karnavan was not made a party to the suit...... The karnavan alone can represent the illom.It is admitted that the properties belong to the illom.The plaintiff has not prayed for redemption on behalf of the illom but that makes no difference since it is admittedly illom properties,and since there is no allegation in the plaint that the illom has become divided on the date of plaint.The plaintiff's lather was a necessary party to the suit.Without the karnavan on the party array,the suit is not maintainable and on that ground alone the suit is liable to be dismissed......... Plaintiff knew about the sale deed long before the date of this suit.Ex.III dated 5 -7 -1950 is the copy of an affidavit tiled by this plaintiff in O.S.221/122 of the Alleppey District Court.In that affidavit Ex.I is specifically referred to.The plaintiff's case is that Ex.I sale deed is invalid.......( after referring to 1962 KLT 61 F.B.) An alienation of tarwad immovable property by a karnavan unsupported by consideration,tarwad necessity or written consent of all the major members of the tarwad is not void but only voidable at the instance of the tarwad.In the same ruling it has been held that if possession passed with the alienation,the tarwad has necessarily to institute a suit for recovery of the property within the time allowed by law.Where possession was with alienee at the time of the alienation and continued with him after the alienation as in the case of a sale of equity of redemption to a possessory mortgagee,as soon as the mortgagee got a transfer of the equity of redemption from the karnavan of the tarwad his possession as mortgagee ceased and possession as owner commenced.In respect of alienations coupled with transfer of possession the suit cannot be for possession merely.The suit must be to set aside the alienation itself with prayer for possession as a consequential necessary relief...Since there is no prayer for setting aside the sale deed Ex.1,it is not necessary to go into the question whether it is valid,binding or not.In the plaint the sale deed is not even referred to.In the circumstances the suit for redemption alone is not 'maintainable.''
(2.) He therefore dismissed the suit as not maintainable allowing the cross objection.Hence this second appeal by the plaintiff.
(3.) It has come out in evidence that there was a partition between the plaintiff and his father on November 14,1955(though the deed of partition has not been put in proof in this case)and thereunder the suit property had been allotted to the plaintiff.But nothing turns on that partition if the property has been sold by the karnavan of the illom before that partition and the sale stands.;
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