IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 SA.No. 27 of 2003() ------------------- AS.41/1999 of SUB COURT, NEDUMANGAD OS.55/1988 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT: 7TH APPELLANT/LEGAL HEIR OF 1ST PLAINTIFF -------------------- VISWANATHAN ASARI, S/O.SIVARAMAN ASARI, KOTTAPPURATH VEEDU, THOTTAVARAM, ATTINGAL. BY ADV. SRI.R.S.KALKURA RESPONDENTS: RESPTS/PLTFFS & DEFDTS 1 TO 7 & APPELTS 1 TO 6 & 8 ------------------------ 1. DEVAKI, D/O.KAMALAKSHY, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 2. VELAPPAN, S/O.RADHAKRISHNAN, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 3. PUSHPAN, S/O.RAMAKRISHNAN, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 4. PRABHAKARAN, S/O.RAMAKRISHNAN, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 5. ASHOK KUMAR, S/O.RAMAKRISHNAN, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 6. USHA, D/O.DEVAKI, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE, 7. AJITHAN, D/O.DEVAKI, ERAVOOR ROADARIKATH VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. S.A. NO.27/2002 8. MAHESWARAN ASARI, P.B NO.10366 AL MUBOREIZ P. NO. 31982, AL TESSA, K.S.A. 9. CHEMBU KAMALAKSHY, ERAVOOR ROADARIKATHU VEEDU, KOTTAKKOM MURI, ARYANADU VILLAGE. 10. SADASIVAN ASARI, S/O.SIVARAMAN ASARI, VARUVILAKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE. 11. SARSWATHY AMMAL, VARUVILAKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE. 12. MADHUMANI AMMAL, D/O.KUNJULEKSHMI AMMAL VARUVILAKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE. * 13. LALITHAMMAL, D/O.KUNJULEKSMI AMMAL, VARUVILAKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE. (DIED) 14. UMAYAMMAL, D/O.KUNJULEKSHMI AMMAL, VARUVILAKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE. 15. BRAHMADEVAN ASARI, S/O.SIVARAMAN ASARI, TC 33/335, VALLAKKADAVU, THIRUVANANTHAPURAM. RESPONDENTS 10 TO 12, 14 AND 15 ARE RECORDS THE LRS OF DECEASED 13TH RESPONDENT AS PER ORD DT. 19.6.07. IN MMEO C.F. 2752/07 DT. 12.6.07. R1 to R7 BY ADV. SRI.K.B.PRADEEP R9 BY SRI.B.RAGUNATHAN SRI.V.V.MATHEW THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 27 OF 2003 ............................................ DATED THIS THE 17th DAY OF JANUARY, 2008 JUDGMENT One of the legal heirs of first defendant in O.S.55 of 1988 on he file of Munsiff Court, Nedumangad is the appellant. Respondents are plaintiffs and the other defendants. Plaintiffs instituted the suit seeking a decree for declaration of their title and possession or in the alternative, for partition and separation of their share. Plaint schedule property admittedly originally belonged to Sivaraman Achari, husband of first defendant and father of defendants 2 to 6. Plaintiffs are the children of first plaintiff. Sivaraman Achari had 3.20 acres of land. Admittedly under Ext.A1 mortgage deed 4099/1124 M.E, he mortgaged the southern two acres in favour of Madhava Panicker. Subsequently, Madhava Panicker sub mortgaged that property under Ext.A2 sub mortgage on 13.4.1951 in favour of Narayana Panicker, his brother. Seventh defendant is the widow and first plaintiff is the daughter. While Narayana Panicker was in possession of the property, Sivaraman Achari executed Ext.A3 mortgage deed on 2.3.1953 in respect of the remaining 1.20 cents for a mortgage money of Rs.350/-. Thus the entire plaint SA 27/2003 2 schedule property was in possession of Narayana Panicker. He was in possession of two acres as a sub mortgagee and 1.20 cents as the mortgagee. Plaintiffs contended that Narayana Panicker died in 1965 and Sivaraman Achari in 1958. Plaintiffs 2 to 7 are the children of Narayana Panicker. While so, 7th defendant claimed that Ext.A4 superior mortgage deed was executed by legal heirs of Sivaraman Achari in 1967. Plaintiffs contended that no such mortgage deed was executed and 7th defendant was not in possession of the property as a superior mortgagee. Defendants 1 to 5 filed O.S.477 of 1985 for redeeming Ext.A4 mortgage. In that suit, legal heirs of original mortgagee Narayana Panicker were not impleaded. It was contended that the decree is not binding on them and prior mortgages did not merge with Ext.A4 mortgage, and pursuant to the decree for redemption of Ext.A4 mortgage, plaintiffs cannot be dispossessed and plaintiffs claimed a decree for declaration of title. It was contended that in any case, plaintiffs are entitled to get their share separated. 2. Defendants 1 to 6 in their written statement admitted that property originally belonged to Sivaraman Achari. It was also admitted that Ext.A1 mortgage was executed in favour of SA 27/2003 3 Madhava Panicker and Madhava Panicker was in possession of the property and it later came into the possession of Narayana Panicker. According to defendants, it was not as a sub mortgagee but as an assignee mortgagee and Narayana Panicker was in possession of the entire 3.2 acres as a mortgagee and meanwhile Sivaraman Achari died and thereafter a superior mortgage was executed in favour of 7th defendant by the legal heirs of Sivaraman Achari with the knowledge and consent of Narayana Panicker and the portion of the mortgage money due under the earlier mortgage was deducted at the time of executing the superior mortgage and the legal heirs of Sivaraman Achari later executed a partition deed in 1979 and defendants 1 to 5 filed O.S.477 of 1985 for redeeming the superior mortgage and that suit was decreed and that decree is binding on plaintiffs also and as the decree was obtained against 7th defendant, plaintiffs are estopped from contending that the decree is not binding on them and plaintiffs are not entitled to the decree sought for. 3. Plaintiffs got the plaint subsequently amended contending that Ext.A4 relied on by defendants are fraudulent document and neither first plaintiff nor Narayana Panicker SA 27/2003 4 consented for the superior mortgage and title or possession of plaintiffs was not lost by execution of Ext.A4 and the decree in O.S.477 of 1985 are not binding on them and Ext.A1 and A3 mortgage were already barred by time and plaintiffs are in possession as full owners and therefore the claim of defendants is not sustainable. It was contended that since defendants 1 and 7 are in joint possession as legal heirs and co owners of Narayana Panicker, if it is found that plaintiffs are entitled to half right, that share is to be granted. Defendants 1 to 5 in the additional written statement contended that O.S.477 of 1985 is not the result of collusion as alleged and court has declared that superior mortgages came into force in O.S.477 of 1985 and plaintiffs have knowledge about the suit and therefore suit is to be dismissed. 4. Learned Munsiff, on the evidence of PW1, Exts.A1 to A7 and C1 found that Ext.A1 mortgage was created in 1124 ME and the mortgagee created Ext.A2 sub mortgage in 1951 and in respect of the balance 1.20 acres, excluding two acres covered under Ext.A1, Ext.A3 mortgage was created on 2.3.1953 and if there is no acknowledgment of debt, the redemption is barred. It was found that Ext.A4 superior mortgage will operate as SA 27/2003 5 acknowledgment of Ext.A1 and A3 mortgages and Ext.A4 establish that previous mortgage was acknowledged and therefore Ext.A1 and A3 mortgages are not barred by time. Learned Munsiff found that Ext.A7 decree obtained in O.S.477 of 1985 as against 7th defendant, superior mortgagee under Ext.A4 is binding on plaintiffs and therefore plaintiffs are entitled to one half of the equity of redemption and granted a decree, declaring that first plaintiff is entitled to only one half of the equity of redemption. 5. Appellants challenged the judgment before Sub Court, Nedumangad in A.S.41 of 1999. Learned Sub Judge, on reappreciation of evidence, found that though defendants did not file a cross objection against the finding that the previous mortgages are subsisting, they are entitled to challenge the finding against them while supporting the findings in their favour and considered the question whether Ext.A4 would operate as an acknowledgment. It was found that even according to appellants, Ext.A4 was executed with the consent and knowledge of Narayana Panicker and pleading in the plaint that Narayana Panicker died in 1965 was not denied in the written statement and no evidence was also adduced to prove SA 27/2003 6 that Narayana Panicker was alive in 1967 and therefore Ext.A4 could not have been executed or created with the knowledge and consent of Narayana Panicker who died in 1965. Learned Sub Judge also found that appellants have no case that Ext.A4 was executed by 7th defendant in his capacity as legal heir of Narayana Panicker and the recital in Ext.A4 about previous Ext.A1 and A3 mortgages are only statement of facts and will not operate as an acknowledgment of liability by the mortgagee under Ext.A1 and A3 and therefore finding of learned Munsiff that Ext.A1 and A3 mortgages are subsisting is not sustainable. Confirming the finding of learned Munsiff on the other aspects, it was found that plaintiffs are entitled to get partition of the property and they are entitled to their half share separated. It is challenged in the second appeal. 6. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that first appellate court should not have interfered with the finding of trial court on the question of limitation when no cross objection was filed by plaintiffs as against the findings and therefore the judgment of first appellate court is not sustainable. It was argued that in Ext.A4, there is clear recital about existence of Ext.A1 and A3 SA 27/2003 7 mortgages and as rightly found by trial court, Ext.A4 created an acknowledgment of Ext.A1 and A3 mortgages and therefore finding of first appellate court that Ext.A1 and A3 do not subsist is not sustainable. Learned counsel also argued that in view of Ext.A6 and A7 judgment and decree, first appellate court was not justified in holding that plaintiffs have subsisting right over the property except in the equity of redemption. 7. On hearing the learned counsel, I do not find any substantial question of law is involved in the appeal. A plaintiff in whose favour suit was decreed, is entitled to challenge those finding against him in the judgment of the trial court while supporting the judgment in the appeal filed by defendants as provided under Rule 22 of Order XLI of Code of Civil Procedure. Therefore the finding of first appellate court that even without filing a cross objection, plaintiffs are entitled to challenge the findings of the trial court with regard to question whether Ext.A1 and A3 mortgages are subsisting and Ext.A4 superior mortgage deed operate as an acknowledgment of Ext.A1 and A3 mortgages could be challenged is perfectly correct and on that ground, findings of first appellate court cannot be challenged. 8. It is admitted case that if there is no acknowledgment, SA 27/2003 8 Ext.A1 and A3 mortgages they are barred by time on the date of institution of the suit. The case of defendants was that Ext.A4 superior mortgage operate as an acknowledgment of the previous mortgages and therefore Ext.A1 and A3 are not barred. Ext.A4 was not executed by the mortgagee under Ext.A1 and A3 or the sub mortgagee under Ext.A2. It was executed by 7th defendant. Though 7th defendant is the wife of the mortgagee under Ext.A3 and sub mortgagee under Ext.A2, it was not executed in her capacity as the legal heir of the mortgagee or sub mortgagee. On the other hand, it was obtained in her individual capacity. Even according to defendants, Ext.A4 was not created in the capacity as legal heir of Narayana Panicker. On the other hand, the specific case was that it was executed with the knowledge and consent of Narayana Panicker. First appellate court rightly found that case of plaintiffs that Narayana Panicker died in 1965 pleaded in the plaint was not denied in the written statement and no evidence was also adduced to prove that the said contention of the plaintiffs is not correct and it can only be found that Narayana Panicker was not alive in 1967 when Ext.A4 was created. If that be so, Ext.A4 cannot operate as acknowledgment of the liability by the mortgagees under Ext.A1 SA 27/2003 9 and A3. Moreover, as rightly found by first appellate court, recitals about Ext.A1 and A3 in Ext.A4 is only a recital of facts and not an undertaking of the liability and therefore it will not operate as acknowledgment. Therefore first appellate court rightly found that Ext.A1 and A3 are barred by time and plaintiffs are entitled to half share in the plaint schedule property. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-