IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 SA.No. 1015 of 2001() {O.S.NO.482/1990 OF THE I ADDL.M.C.,NEYYATTINKARA IN A.S.NO.118/1996 OF THE SUB COURT,NEYYATTINKARA} .................... APPELLANT(S)/APPELLANTS/DEFENDANTS 1, 2, 4 & 6: 1. MADHAVAN NADAR, S/O.THANKAPPAN NADAR, * (DIED, LRS AGED 70 YEARS, RESIDING AT RECORDED) ROADARIKATHU PUTHEN VEEDU, KOTTARATHALAKKAL, EDAKKODE DESOM, PALLICHAL VILLAGE, NEMOM P.O. 2. RAJAN, S/O.GOPALA PANICKAR, AGED 52, RESIDING AT ROADARIKATHU VEEDU, MELECHARIVUVILA, MAYAMKODE, PALLICHAL DESOM, PALLICHAL VILLAGE, NEMOM P.O. 3. SUSEELA, W/O.MADHAVAN NADAR, AGED 52, RESIDING AT ROADARIKATHU PUTHEN VEEDU, KOTTARAKKAL, EDAKKODE DESOM, PALLICHAL VILLAGE, NEMOM P.O. 4. RAJEEV ALIAS MANIKUTTAN, S/O.MADHAVAN NADAR, AGED 23 YEARS, RESIDING AT ROADARIKATHU PUTHEN VEEDU, KOTTARAKKAL, EDAKKODE DESOM, PALLICHAL VILLAGE, NEMOM P.O. IT IS RECORDED THAT 1ST APPELLANT DIED AND APPELLANTS 3 AND 4 ARE THE LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER ORDER DT. 23.7.04 VIDE MEMO DT. 8.7.04 CF 3436/04. BY ADV. SRI.L.MOHANAN SRI.D.SAJEEV SMT.LIGEY ANTONY SA.No. 1015 of 2001 :: 2 :: RESPONDENT(S)/RESPONDENTS 1 TO 3 & ADDL. R5/ PLAINTIFF & DEFENDANTS 3 AND LEGAL HEIRS OF 4TH DEFENDANT: 1. KAMALAKUMARI AMMA, D/O.THANKAMMA PILLAI, AGED 55, RESIDING AT KAITHOORKONATHU, KOTTARATHALAKKAL PUTHEN VEEDU, EDAKKODE DESOM, PALLICHAL VILLAGE, NEMOM P.O. 2. GOPINATHAN PILLAI, S/O.MADHAVAN PILLAI, AGED 62, RESIDING AT MELETHATTU PUTHEN VEEDU, KOTTARATHALA, PALLICHAL DESOM. PALLICHAL VILLAGE, NEMOM P.O. 3. SELVANOSE ANTONY, AGED 43, KALLARATHALAKKAL ROADARIKATHU VEEDU, EDAKKODE, NEMOM P.O. ADV. SRI.M.RAJASEKHARAN NAYAR FOR R1 SRI.JOHN K.JOSEPH(SAJAN) FOR R1 SMT.K.N.RAJANI FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2009, THE COURT ON 06/03/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.No.2443/01 IN S.A.No.1015/01 D DISMISSED. Sd/- (V.GIRI) 06.03.2009. JUDGE sk/- //true copy// P.S. To Judge. V.GIRI, J. ------------------------- S.A..No.1015 of 2001 ------------------------- Dated this the 6th day of March, 2009. JUDGMENT Defendants 1, 2, 5 and 6 in O.S.No.482/90 on the files of the Munsiff's Court, Neyyattinkara are the appellants in this second appeal. The first appellant died during the pendency of the appeal. His legal heirs, appellants 3 and 4 are already on the party array. The appeal was continued by the remaining appellants. 2. O.S.No.482/90 was instituted essentially for redemption of mortgage. The suit was decreed and the plaintiff was allowed to redeem and recover possession of plaint 'C' schedule items 1 and 2 from the defendants by giving proportionate redemption price to the 1st defendant. Other consequential reliefs were also granted. The judgment and decree was affirmed by the first appellate court and hence this second appeal. 3. The bare necessary facts can be summarised as follows: S.A..No.1015 of 2001 :: 2 :: 4. Plaint 'A' schedule, having an extent of 43 cents belonged to one Kottarathala family. On a suit for partition of the properties belonging to the family instituted as O.S.No.79/1120 item 'O' as identified in Ext.C8 plan appended to the decree came to be alloted in favour of defendants 17, 21, 22 and 23 jointly. One of the allottees Easwari Amma Kamalakshy Amma had even earlier proceeded to execute Ext.B2 gift deed dated 2.11.1953 in favour of her son, one Gopala Pillai Padmanabha Pillai. Gopala Pillai Padmanabha Pillai executed Ext.A3 mortgage in favour of one Muthayyan Nadar. Subsequently, in the year 1954, Padmanabha Pillai assigned his jenmam right over the property (equity of redemption) obtained under Ext.B2 in favour of the 1st defendant, a stranger to the family, authorising him to redeem the mortgage. By Ext.B9 document dated 10.12.1954, the 1st defendant obtained an assignment of the mortgage right from Muthayyan Nadar. The 1st defendant, therefore, continued in possession of the property. 5. O.S.No.79/1120 was decreed only on 15.2.1965 and aforementioned gift deed by one of the sharers S.A..No.1015 of 2001 :: 3 :: Kamalakshy Amma in favour of her son under Ext.B2 took place during the pendency of the suit. It may be noted herein that plaint 'A' scheduled property has an extent of 43 cents and the subject matter of Ext.B2 gift deed was 35½ cents forming part of the aforementioned 43 cents. 6. As stated above, the entirety of the plaint 'A' schedule property, 43 cents, came to be alloted in favour of four sharers defendants 17, 21, 22 and 23 in O.S.No.79/1120 and the executant of Ext.B2 gift deed was only one among such sharers and one of the defendants in O.S.No.79/1120. After the allotment effected in favour of defendants 17, 21, 22 and 23, three among the allottees therein and the donee under Ext.B2 gift deed entered into a partition as Ext.A2. 10¾ cents was allotted in favour of each of those sharers. 7. The plaintiff obtained 10¾ and 7 cents from two of the sharers who were allotted properties under Ext.A2 partition deed as per Exts.A5 and A6 sale deeds and the suit is for redemption of the said 17¾ cents. 8. The first defendant resisted the plea for redemption essentially on the premise that Padmanabha Pillai, S.A..No.1015 of 2001 :: 4 :: the donee under Ext.B2 had obtained right over 35½ cents of property under the said document, though the property was outstanding on mortgage even at that point of time. That Padmanabha Pillai, in turn, had executed a mortgage as Ext.A3; that the mortgage right was later assigned in favour of the 1st defendant as per Ext.B9 lease deed, that the equity of redemption was also obtained by the 1st defendant under Ext.B10 sale deed executed by Padmanabha Pillai and therefore, the first defendant must be considered to have obtained the entire right in respect of the property conveyed under Ext.B2 from Padmanabha Pillai and this will include plaint 'C' schedule property in respect of which redemption has been sought for. 9. A further contention taken up was to the effect that the plaintiff had instituted O.S.No.59/1984 before the Munsiff's Court, Neyyattinkara for recovery of possession and fixation of boundary. That this had resulted in Exts.A8 and A9 judgment and decree by which the plaintiff's suit was dismissed. It is contended that Exts.A8 and A9 constitutes res judicata. S.A..No.1015 of 2001 :: 5 :: 10. The courts below found that the plea of res judicata is untenable inasmuch as the earlier suit was not for one for redemption and was dismissed essentially on the ground that the plaintiff had to seek redemption of mortgage before seeking possession of the property. Insofar as the plea resisting redemption is concerned, the courts below found that the suit for redemption is within the period of limitation; and that the 1st defendant cannot be considered as having obtained a right over 35½ cents of property under Exts.B9 and B10, inasmuch as that the assignor of the equity of redemption in favour of the 1st defendant,Gopala Pillai Padmanabha Pillai did not derive right over the entire 35½ cents of property, though Ext.B2 gift deed purported to convey a right in relation to the same. The mother of Padmanabha Pillai was only one of the sharers, ultimately was allotted only 10¾ cents of property and Padmanabha Pillai could be considered as having derived title to the property only in respect of 10¾ cents allotted to the share of his mother under Ext.A2 partition deed. The fact that Padmanabha Pillai was also a party to Ext.A2 partition deed was found to be a matter of significance. S.A..No.1015 of 2001 :: 6 :: 11. This court had admitted the second appeal and after hearing both sides, directed that the second appeal shall be heard on the following substantial questions of law. “i) When as per Ext.B10 assignment of the equity of redemption dated 7/9/1954 the first defendant became a co-mortgagor on the strength of which he had redeemed the entire mortgage as per Ext.B9 release deed dated 10.12.1954 from the mortgagee Muthalyan, was the plaintiff who was only an assignee from non-redeeming co- mortgagors entitled to institute the present suit for redemption, and that too, after 35 years of Ext.B9 redemption? (ii) Does not the decree dated 22.11.1989 in O.S.59/1984 operate as res judicata to the present suit? (iii) Are the courts below right in their interpretation of Ext.A3 and A4 documents?” 12. I heard Mr.L.Mohanan, learned counsel for the appellants and Mr.Rajasekharan Nair, learned counsel for the respondents. 13. Insofar as the plea of res judicata is concerned, I am of the view that the courts below had rightly rejected the S.A..No.1015 of 2001 :: 7 :: plea taken up by the defendants. It has to be remembered that the suit is one for redemption of mortgage and the right of a mortgagor to redeem his mortgaged property will continue to remain alive and operative until the expiry of the period of limitation. O.S.No.59/84 was one for declaration of title, possession and fixation of boundary. The suit was dismissed on the ground that the mortgage was yet to be redeemed. Plaintiff's right to redeem the mortgage did not come up for consideration in the said suit. In the circumstances, the present suit cannot be considered as barred by res judicata. Dismissal of the earlier suit cannot derogate from the right of the mortgagor to seek redemption of the mortgage. 14. Learned counsel for the appellant Mr.Mohanan contended that the 1st defendant had obtained assignment of the equity of redemption relating to 35 ½ cents of property under Ext.B10 deed of assignment, from Gopala Pillai Padmanabha Pillai and it is on the strength of the same that he had redeemed the entire mortgage as per Ext.B9 release deed dated 10.12.1954 (ExtB9 is the same as Ext.A4). If that be so, S.A..No.1015 of 2001 :: 8 :: it is contended that the plaintiff an assignee from a non- redeeming co-mortgagor would not be entitled to institute the present suit for redemption. 15. The assignor of the 1st defendant, Gopala Pillai Padmanabha Pillai, is a donee under Ext.B2 dated 22.11.1953. His mother Easwari Amma Kamalakshy Amma was one of the sharers of the property belonging to Kottathala family. The property had not been partitioned by metes and bounds, at the time when she had executed Ext.B2 dated 22.11.1953. If that be so, Padmanabha Pillai cannot be considered as having derived title to the entire extent of property purported to be gifted under Ext.B2, since the donor did not have absolute title or power of disposition over the extent of property. If Padmanabha Pillai therefore did not derive title to the entire extent of the property gifted under Ext.B2, then he also could not have executed a mortgage as was purported to be done under Ext.A3. It is the mortgage created by Padmanabha Pillai under Ext.A3 that was purported to be assigned in favour of the 1st defendant by Muthayyan Nadar under Ext.B9. Thus, the right derived by Muthayyan Nadar under Ext.a3 alone could S.A..No.1015 of 2001 :: 9 :: have been assigned in favour of the 1st defendant under Ext.B9. Padmanabha Pillai was incompetent to create a mortgage in relation to the property unless he had derived title to the same. He could assert title only under Ext.B2 gift deed executed by his mother at a point of time when the mother herself had not derived title to the same. The donor of Ext.B2 along with three others together were allotted 43 cents, plot 'O' as per the decree passed in O.S.NO.79/1120. Padmanabha Pillai the donee under Ext.B2 joined the three other sharers and executed Ext.A2 partition deed and he was alloted only 10 ¾ cents as a successor in interest of his mother Kamalakshy Amma. At best, therefore, title purported to be derived by Padmanabha Pillai under Ext.B2 will have to be confined to 10¾ cents which ultimately came to be allotted to Easwari Amma Kamalakshy Amma under Ext.A2 partition deed to which, as stated above, Padmanabha Pillai was also a party. At the same time, the allotment of 10 ¾ cents each to the three other sharers including the assignors of Exts/A5 and A6 obviously will have to be accepted by Padmanabha Pillai and if that be so, it is binding on the first defendant also. S.A..No.1015 of 2001 :: 10 :: 16. The 1st defendant, therefore, could not have claimed a right in relation to the entirety of B schedule property on the strength of Ext.B10 assignment deed executed by Padmanabha Pillai, who in turn, was incompetent to assign any right over the property in excess of the 10 ¾ cents which ultimately came to be allotted to the share of Easwari Amma Kamalakshy Amma and which would be deemed to have been gifted in favour of Padmanabha Pillai under Ext.B2. As a matter of fact though the courts below have upheld such derivation of title in favour of the 1st defendant, it is a moot question, whether the principles relating to feeding the grant would be applicable as such in the case of gift deed like Ext.B2. Derivation of title under the gift deed was dependent on the competence of the donor to convey the same along with acceptance of the gift by the donee. \Inadequacy or incompetence on the part of the donor at the time of execution of gift deed cannot normally be remedied by an expost facto acquisition of title to the property by the donor. Be that as it may, since the plaintiff had sought for a redemption only in respect of 17 ¾ cents of property, out of the 35 ½ cents stated S.A..No.1015 of 2001 :: 11 :: to have been conveyed in favour of Padmanabha Pillai under Ext.B2 and ultimately possessed by the 1st defendant and since the extent of property left over after redemption is more than 10 ¾ cents of property in relation to which alone Padmanabha Pillai could have legitimately asserted a title , the decree passed by the courts below permitting the plaintiff to redeem the mortgage in relation to C schedule property does not require any interference as such. For all these reasons, I am of the view that the questions of law formulated for consideration are eligible to be answered against the appellants. The judgment and decrees of the court below do not warrant any interference. Second appeal is bereft of merit and accordingly, the same is dismissed with costs. Sd/- (V.GIRI) JUDGE sk/ //true copy//