RAGHAVAN Vs. AYYAPPAN PILLAI
HIGH COURT OF KERALA
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(1.) The appellant is the 1st defendant in a suit for redemption. The plaintiff instituted the suit as a junior member for and on behalf of his tarwad since the karnavan who is impleaded as the 2nd defendant failed to redeem the mortgage notwithstanding the alienation effected by the mortgagee in favour of the 1st defendant.
(2.) The mortgage (Ext. A1) was executed by Padmanabha Pillai Kesava Pillai on 27-9-1113 M. E. (1944) in favour of Kesavan Nambudiri in respect of 17 cents of paddy land for a total consideration of Rs. 100/-. Nambudiri assigned the mortgage right in favour of the 1st defendant.
(3.) The plaintiff's suit is resisted by the 1st defendant only, the 2nd defendant having remained ex parte throughout. It is contended on behalf of the 1st defendant that the plaintiff was not competent to institute the suit. In support of that contention, various points were urged. It was pointed out that the suit property did not belong to the family, but it was the separate property of Kesava Pillai who executed Ext. A1 It was further pointed out that the family had been disrupted long before Ext. A1 under Ext. Al partition of 1116 and the suit on behalf of the family was therefore unsustainable. Both these contentions were rejected by the courts below. It was concurrently found that the suit property was family property and that Ext. A4 partition did not include the suit property. Interpreting Ext. A4 the courts held that the suit property which was a service inam was specifically mentioned in that document for exclusion from partition. The document stated that the property was to be maintained as a service inam for the benefit of all the members of the family. Consequently the character of the suit property as family property remained unaffected by Ext. A4. In the light of the concurrent findings, it is unnecessary for me to embark upon an examination of those two points in regard to which counsel has not succeeded in showing that any substantial question of law arises. I therefore confirm the finding on the above points.;
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