IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 RSA.No. 61 of 2008(G) -------------------- AS.6/2004 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA OS.505/1999 of MUSNIFF COURT,ADOOR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- K.M.YOHANNAN, S/O. MATHAI MATHUNNI, KAITHARETHU PAINUMMOOTTIL BUILDINGS, OIE PALACE WARD, P.O.THEVALLI, KOLLAM. BY ADV. SRI.P.VIJAYAKUMAR SRI.ASHIM.M.V. RESPONDENT(S): APPELLANT & DEFENDANTS ---------------------------------------------------------------- 1. BABU THOMAS, S/O. LATE K.M.THOMAS, KAITHARETHU PUTHEN VEEDU, KADAMPANADU SOUTH MURI, KOLLAM DISTRICT. 2. K.T.JOHNSON, S/O. LATE K.M.THOMAS, -DO- -DO- ADV. SRI.G.UNNIKRISHNAN FOR R1 & 2 SRI.K.SANEESH KUMAR FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------- R.S.A No. 61 OF 2008 ---------------------------------------- Dated this the 11th day of November, 2011 JUDGMENT Plaintiff in O.S. 505/1999 on the file of Munsiff Court, Adoor is the appellant and defendants are the respondents. Suit was for fixation of boundary and for cancellation of joint Thandaper and mutation of the plaint schedule property. Plaint A schedule property is 4 ¼ cents in Survey No. 483/9A of Kadampanadu Village, being portion of 43 cents. Plaint B schedule property is the remaining extent of the 43 cents in that Survey number. The property, both plaint A and B, admittedly originally belonged to Mathai. Mathai had three sons. Mathunni, Gheevarghese and Thomas. Under Ext.A4 settlement deed, properties were settled by Mathai in favour of the three sons. Admittedly, out of the 43 cents, the south eastern portion having an extent of 4 ¼ R.S.A. No. 61 OF 2008 -2- cents was alloted to the share of Mathunni under item 2 of schedule 2 of Ext.A4 settlement deed. 3 ¼ cents which lies immediately to its western was settled in favour of Gheevarghese. The balance extent was settled in favour of Thomas. Though after settling the properties in favour of Gheevarghese and Mathunni, 35 ½ cents alone would be available with Mathai, what was settled under Ext.A4 was 38 ¼ cents. The settlement was not in such a way that the property was first alloted to Gheevarghese and then to Mathunni and the balance to Thomas. It is under Ext.A1 will executed by Mathai, appellant is claiming title to the plaint schedule property. Suit is for fixation of boundary and for cancellation of the joint Thandaper and to effect mutation. 2. Respondent contended that even though under Ext.A4 settlement deed 43 cents was settled in favour of the three sons, the property was outstanding in the possession of Thomas one of the sons on mortgage under Ext.B1 registered mortgage deed and therefore, what could be R.S.A. No. 61 OF 2008 -3- claimed by Mathai, the father of the appellant is only the right of equitable redemption and as Ext.B1 mortgage was executed on 8.2.1958, and the mortgage has not been redeemed, appellant is not entitled to seek any relief. 3. Learned munsiff on the evidence decreed the suit in part fixing the boundary of plaint A schedule properties as b, c, 42-36, as given in Ext.C2 plan. Respondent challenged the decree before the District Court Pathanamthitta in A.S.6/2004. The learned Sessions Judge on re-appreciation of the evidence, found that Mathai who settled the property in favour of children had mortgaged the property under Ext.B1 mortgage deed on 1956, and therefore under Ext.A4 settlement deed executed thereafter on 15.12.1958, only the right of equitable redemption was available with Mathai and therefore, Mathai could transfer only the right of equitable redemption. Holding that as the mortgage was not redeemed and appellant is not entitled to claim possession, appeal was allowed and the suit was dismissed, which is R.S.A. No. 61 OF 2008 -4- challenged in the second appeal. 4. Argument of the learned counsel is that though Ext.B1 mortgage was executed by the grand father of the appellant in 1956, it was not taken note of by any of the sons or the grand father, and the property was settled under Ext.A4, reciting that the property is in possession of Mathai and settled in favour of three sons. The learned counsel argued that subsequently under Ext.A6, Thomas assigned 38 ½ cents excluding, the south eastern 4 ¼ cents to his wife and exclusion of 4 ¼ cents could only be for the reason that the property was redeemed earlier and the south eastern 4 ¼ cents has been in the possession of Mathunni, under Ext.A4 settlement deed. The learned counsel also point out that under Ext.A5, Gheevarghese assigned his right in favour of Thomas, over 3 ¼ cents settled in his favour under Ext.A4 and it establishes that Gheevarghese was not having the right of equitable redemption but the absolute right as no mention was made about the mortgage. R.S.A. No. 61 OF 2008 -5- The learned counsel therefore argued that, even though a mortgage was created, it was redeemed earlier to Ext. A4 settlement deed and in such circumstance first appellate court was not justified in holding that the appellant is not having any right under Ext.A1 will. 5. Ext.B1 the registered mortgage deed was executed by Mathai in favour of Thomas, his son on 18.2.1956. It establishes that 43 cents, which includes the subject matter of the dispute in this case, was mortgaged and the mortgagee Thomas was in possession of the property. He is entitled to be in possession of the property till the mortgage is redeemed. Ext.B1, mortgage, was not disputed. It is true that two years after execution of Ext.B1, Ext.A4 settlement deed was executed. But Mathai was having only the right of equitable redemption over the 43 cents covered under Ext.B1 at that time. It was settled in favour of the three sons, including the mortgagee Thomas. Ext.A4 settlement deed is not in respect of the 43 cents, mortgaged R.S.A. No. 61 OF 2008 -6- under Ext.B1. It is inclusive of other properties also. Ext.A4 does not make mention of the mortgage created under Ext.B1. There is also no case in Ext.A4 that Ext.B1 mortgage was redeemed and therefore, the mortgagor Mathai has been in possession of the properties covered under Ext.B1. If there was no redemption, what could be transferred by Mathai in respect of property mortgaged under Ext.B1 is only the right of equity of redemption. Therefore, what could be claimed by Mathunni and Gheevarghese, who were granted the southern 4 ¼ and 3 ¼ cents respectively, is only the right of equity of redemption, while Thomas to whom 38 ½ cents was settled was having the mortgage right in respect of entire 43 cents. The question then is whether based on Ext.A5 and A6 it can be find that there was a redemption as canvassed by the learned counsel. 6. Under Ext.A6, Thomas, who is having the mortgage right over the entire 43 cents and absolute right over 38 ½ R.S.A. No. 61 OF 2008 -7- cents transferred his right in favour of his wife. Ext.A6 shows that property transferred thereunder is excluding the 4 ¼ cents, out of 38 ½ cents. It is to be borne in mind that under Ext.A4 settlement deed what was alloted to Thomas, was only 38 ½ cents. Therefore, when Ext.A6 does not give any indication that 4 ¼ cents which was excluded was in the possession of Mathunni, for the reason that it was not included in Ext.A6 it cannot be found that there was a redemption as canvassed by the learned counsel. If Thomas was having right over entire property, the fact retaining a portion, the remaining portion was transferred under Ext.B1 does not show that he has no right over the property retained. In such circumstance based on Ext.A6 it cannot be found that there was a redemption. Similar is the case with Ext.A5. Ext.A7 shows that Gheevarghese the brother of Thomas assigned the properties belonging to him under Ext.A4 settlement deed in favour of Thomas. Though the property transferred under Ext.A7 include 3 ¼ cents settled R.S.A. No. 61 OF 2008 -8- under Ext.A4, Ext.A7 does not disclose that the 3 ¼ cents was in the possession of Gheevarghese or that possession was handed over to Thomas. Hence based on Ext.A7 also it cannot be found that there was redemption. When Ext.B1 mortgage was created by a registered document, the redemption, if any, could have been evidenced by a registered document. When even Mathai who created the mortgage and later executed Ext.A4 settlement deed, has no case that there was redemption of Ext.B1, it is futile for the appellant, that too without pleading to contend that there was an implied redemption. In such circumstance I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE. Kp/-