Decided on February 01,1968



- (1.) THIS appeal is by the 2nd defendant in a suit for declaration of title and for redemption.
(2.) P. W. 4 1ms mortgaged the plaint schedule property to the 1st defendant under exhibit P-2, dated March 23, 1955, and thereafter assigned his equity of redemption to the plaintiff under Ext. P-1 dated June 23, 1955. This suit has been instituted on January 13, 1956, impleading the 2nd defendant also on the allegation that the 1st defendant has collusively surrendered the mortgaged property to him. The 2nd defendant denied P. W. 4 and the plaintiff to have any right to or possession of the property, and contended it to have originally belonged to Niravath tarwad, who in 1082 M. E. (1907) mortgaged it to Raman Kesavan and subsequently partitioned the equity of redemption under Ext. d-J among its members out of whom Lakshmi Amma who got 12 cents of the property sold it to the aforesaid Raman Kesavan who under Ext. D-2 dated 3-4-1116 (November 1940) gifted all his interests in the property to his brother's daughter Narayani the had no issue and Narayani was living with him as his foster-daughter) and her husband Narayanan Kesavan, who assigned to the 2nd defendant under Exts. D-3 and D-4 and that the 2nd defendant himself had purchased as per Ext. D-l dated 19-3-1118 (1943) the equity of redemption in the remainder of the property from krishnan Nair who obtained it under the aforesaid partition of the Niravath tarwad and thus claimed to be in possession of the property independently of the suit mortgage and the 1st defendant. In his replication the plaintiff admitted the tide of the Niravath tarwad and pleaded that Raman Kesavaii had gifted his rights to his wife Kochupennu as per Ext. P-3 dated 11-2-1116 (September 1940) and that kochu-pennn had sold that property to P. W. 4 under Ext. P-4 dated 15-3-1118, therefore the plaintiff's purchase under Ext. P-l is valid. The Munsif held title to the properly with the plaintiff but Ext. P-2 mortgage not to have come to effect, and the 2nd defendant to have been long in adverse possession and dismissed the suit. On appeal, the Subordinate Judge held the plaintiff to have title under Ext. P-l and the mortgage Ext. P-2 valid and effective and therefore decreed the suit in terms of the plaint. Hence this second appeal,
(3.) IT was conceded by counsel on both sides that Raman Kesavan had a mortgage of 1082 (1907) from the Niravath tarwad and had also purchased equity of redemption from Lakshmi Amma. But the plaintiff's claim of Raman Xesavan's purchase of the equity of redemption over the entire suit property is disputed by the 2nd defendant. The conveyance of Lakshmi Amma in favour of Raman kesavan is not produced in this case. As such the purchase of equity of redemption by Raman Kesavan can only be found to the extent it is conceded by both sides, and has to he negatived to the extent it is disputed by one of the parties. It then follows that Raman Kesavan had a mortgage right in the whole property and the equity of redemption in respect of 12 cents. He had executed two gifts, Exts. P-3 dated 11-2-1116 in favour of his wife, and Ext. D-2 dated 3-41116 in favour of his foster-daughter and her husband. Needless fo say tbat if the first gift was valid the second was void; but if Ext. P-3 was invalid and Ext. D-2 was valid the title to the property is only with the 2nd defendant and the plaintiff has to be non-suited. The question therefore is whether it was the gift under Ext. P-3 or that under Ext. D-2 that is valid in law,;

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