Decided on March 15,1974

KRISHNAN Appellant


- (1.) One Koikkalazhi kathu tarwad had mortgaged with possession 86 cents of land which takes in the suit property to one Matheru Sankaran and another on 27-11-1065. Ex. D1 is the copy of the mortgage deed. Sometime afterwards Sankaran Pillai Govinda Pillai, a junior member of the tarwad filed a suit -- O. S. 622 of 1089 -- for redemption of the mortgage. On what allegations and under what capacity he filed the suit, it is not possible to find out as none of the said suit records are produced in this case. In pursuance of the decree passed in the suit, Govinda Pillai obtained possession of the suit property. It is not clear from the records produced in the case whether such possession was obtained by actual execution of the decree or out of court. On 3-8-1107, corresponding to 16-3-1932, Govinda Pillai mortgaged the property which was then in his possession as stated earlier to one Parameswaran Pillai. Copy of this mortgage deed is marked as Ex. P1 in the case.
(2.) Parameswaran Pillai gifted his right to his three sons, who it may be pointed out, are members of the original mortgagor tarwad. This right has now finally devolved on defendants 1 and 2 in the suit, who are the appellants in this court.
(3.) Plaintiffs and defendants 3 to 5 are members of Koikkalazhikathu tarwad. In 1101 as per deed dated 23-7-1101 (6-3-1926) marked as Ex. D5 in the case partition has been effected amongst the members of the tarwad. There is a provision in Ex. D5 deed entitling the parties thereto to take in equal shares, the properties belonging to the tarwad and not specifically taken in by the deed. The suit property is an item that is not so taken in by the deed of partition. Alleging that the plaint schedule property belonged to the tarwad and that in accordance with the above provision in the partition deed, plaintiffs and defendants 3 to 5 are entitled to it, the suit from which this appeal arises is brought for redemption of Ex. P1 mortgage. The mortgage amount has also been deposited in court.;

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