IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 SA.NO. 175 OF 1994(D) ------------------------------------- AS.149/1988 OF D.C & SESSIONS COURT,TRIVANDRUM OS.376/1983 OF PRL.M.C.,NEYYATTINKARA .................... APPELLANT(S) – APPELLANTS - PLAINTIFFS: ------------------------------------------------------ 1. PONNU NADAR DIVAKARAN, KUNNUVILA VEEDU, JKOTTUKKAL DESOM, KOTTUKKAL, NEYYATTINKARA TALUK. 2. PAKKYAM YESODA OF DO. DO. 3. NALLATHAMPI NADAR AYYAKUTTY NADAR, PONGUVILLA PUTHEN VEEDU, VENPAKAL DESOM, ATHIYANNOOR VILLAGE, 4. PAKKYAM BABU, KANNARAVILA KADAYA PUTHEN VEEDU, DO. DO. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S) – RESPONDENTS – 1 TO 10 & 13 DEFENDANTS 1 TO 13: ---------------------------------------------------------------- 1. NALLATHAMPI NADAR PONNAYYAN NADAR, PONGUVILLA PUTHEN VEEDU, VENPAKAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. 2. PAKKYAM THANKAM OF DO. DO. DO. 3. NALLATHAMPI NADAR MUTHAYYAN NADAR OF DO. DO. 4. NALLATHAMPI NADAR SUNDARAN NADAR OF DO. DO. 5. CHALLAMMA RAJAMMA, EDATHENKONATHU PUTHEN VEEDU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. 6. THANKAPPAN NADAR MOHANAN OF DO. DO. 7. THANKAPPAN NADAR RAJAN OF DO. DO. 8. THANKAPPAN NADAR BABU OF DO. DO. 9. THANKAPPAN NADAR MONY OF DO. DO. 10. THANKAPPAN NADAR SOBHANA KUMAR OF DO. DO. 11. PAKKYAM SWARNAM, ANNAPURNIMMAL LAYOUT, DOOR NO.17, R.K. NAGAR, POLLACHI, POLLACHI P.O., COIMBATORE DISTRICT, TAMIL NADU, HAVING ALSO PONGUVILA PUTHEN VEEDU, KOTTUKKAL TALUK. BY ADVOCATE SHRI B. KRISHNAMANI SHRI V. PREMCHAND SHRI M.R.A. ANANDAKUTTAN BY ADVOCATE SHRI M. BALAGOVINDAN SHRI L. MOHANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.175 of 1994 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of October, 2009 J U D G M E N T ---------------------- Plaintiffs in O.S. No.376 of 1983, dissatisfied to the extent of the judgment and preliminary decree passed by the first appellate court are against them, have preferred this Second Appeal. The following substantial questions of law are framed for a decision: (i) Whether, in view of the positive finding of the lower appellate court that the 12th defendant has got only a mortgage right under Ext.A8, on final assignment of Ext.A3 mortgage, the consequential finding that the right obtained by the 4th defendant under Ext.B2 gift over the 15 cents, is to be reserved in his favour, and hence is not available for partition, is correct? (ii) Whether the finding of the lower appellate court that the 15 cents have to be reserved for the 4th defendant, and hence is not available for partition, without assigning any reason, is correct? S.A. NO.175 of 1994 -: 2 :- Parties are refereed to as plaintiffs and defendants as in the trial court for convenience. Plaintiff Nos.2 to 4 and defendant Nos.1 to 4 are the children of defendant Nos.11 and 12. Plaintiff No.1 is the husband of plaintiff No.2. Defendant No.5 is the wife of Thankappan, brother of plaintiff Nos.2 to 4. Defendant Nos.6 to 10 are children of said Thankappan. According to plaintiffs defendant No.11 got possession of plaint A schedule (50 cents) as per Ottikuzhikanom dated 15the Edavam 1114 M.E. They say that mortgage was not redeemed and right of redemption has become time barred and thus defendant No.11 got absolute right over the said property. While so defendant No.11 gifted the said property to her children, plaintiff Nos.2 to 4 and defendant Nos.1 to 4 and Swarnamma as per Ext.A2. As per that gift deed each of the children got 1/9th share in the suit property. But four days before Ext.A2 defendant No.11 created a sub mortgage over the property in favour of Sathyanesan Nadar as per Ext.A3 on 20.3.1950. Plaintiffs say that defendant No.12 joined that mortgage deed only as the husband of defendant No.11. Sathyanesan Nadar assigned his right to defendant No.1 as per Ext.A5 dated 24.9.1989. While so defendant No.12 got assignment of half right of defendant No.1, i.e. 25 cents from defendant No.1 as per Ext.A8 dated 4.5.1966. Swarnamma sold her 1/9th share (mortgagees right) in favour of plaintiff No.1. Thus S.A. NO.175 of 1994 -: 3 :- plaintiff got 4/9 shares while defendant Nos.1 to 4 got 1/9 shares each. Defendant Nos.11 and 12 executed some documents in favour of defendant No.2 and constructed a building. That building is plaint C schedule. Plaintiffs on the above allegations prayed for redemption of the mortgage and partition of the suit property. Defendant No.4 resisted the suit contending that acquisition of the mortgage right as per Ext.A1 was by utilising the funds of defendant No.12 though acquisition was made in the name of defendant No.11. It is also contended that defendant No.2 is the Jenmy of the suit property and constructed a building. Further contention is that Ext.A2, gift deed executed by defendant No.11 in favour of her children is a Will and not a gift deed. Defendant No.12 got release of the mortgage and the mortgage right merged with the Jenm right he acquired. Defendant No.12 executed gift deed in favour of defendant No.4 over 15 cents as per Ext.B2 dated 30.10.1972. It is contended by defendant No.4 that plaintiffs have no right in the suit property and that the property is not partible. Trial court held that Ext.A2 is a Will and dismissed the suit. Plaintiffs took up the matter in appeal. Learned District Judge found that Ext.A2 is a gift deed and that plaintiffs are entitled to redeem the sub mortgage and get partition of the property except 15 cents covered by Ext.B2. Accordingly a preliminary decree for redemption of the mortgage and partition of the suit property excluding 15 cents was S.A. NO.175 of 1994 -: 4 :- passed. Plaintiffs are aggrieved to the extent learned District Judge did not grant relief in respect of the said 15 cents and have come up in Second Appeal raising the above substantial questions of law. It is contended by learned counsel for plaintiffs that first appellate court was not legally correct in excluding 15 cents from the preliminary decree for partition and redemption of mortgage. Learned counsel contends that as per Ext.A1 what was passed to defendant No.4 is only the right of sub mortgagee which is redeemable at the instance of plaintiffs and others. Learned counsel for defendant No.4 per contra contends that it is incorrect to say that defendant No.12 joint Ext.A1 only as husband of defendant No.11. On the other hand Ext.B1 would show that defendant No.12 had purchased undivided jenm right in respect of 16.750 cents out of the suit property. Learned counsel submits that it is the jenm right over the 15 cents as well as the right of sub mortgagee in respect of the suit property that defendant No.12 has gifted in favour of defendant No.4 as per Ext.B2. Learned counsel contends that even in Ext.A3 there is reference to Ext.B1. It is not disputed that property originally belonged to one Joshua Nadar and Bennya in jenm and after their death their children, Thapasya Nadar and Joshua Nadar effected partition of the suit property and other items. Suit property was allotted to the share of S.A. NO.175 of 1994 -: 5 :- Thapasya Nadar, S/o. Joshua Nadar. On his death suit property devolved upon his wife and children who executed Ext.B1 sale deed in favour of defendant No.12 in respect of undivided jenm right over 16.750 cents. A reading of Ext.A3 would show that defendant No.12 had acquired such a right as per Ext.B1. In Ext.B2 also there is reference to defendant No.12 acquiring property as per Ext.B1. Therefore it is not merely sub mortgage right that is gifted to defendant No.4 by defendant No.12 as per Ext.B2. Undivided jenm right over 15 cents also has been gifted to defendant No.4. Hence right of plaintiffs to get redemption of sub mortgage right over the said 15 cents can only be subject to undivided jenm right of defendant No.4 in the said 15 cents. First appellate court was not correct in excluding the said 15 cents from the preliminary decree for partition. Substantial questions of law are answered accordingly. Resultantly Second Appeal is allowed to the extent that plaintiffs are granted a decree for partition and redemption of sub mortgage right over the 15 cents covered by Ext.B2 as well but subject to the undivided jenm right of defendant No.4 over the said 15 cents acquired as per Ext.B2. Costs shall come out of the estate. THOMAS P.JOSEPH, JUDGE. vsv S.A. NO.175 of 1994 -: 6 :- THOMAS P.JOSEPH, J. =================== S.A. NO. 175 OF 1994 =================== J U D G M E N T 22ND OCTOBER, 2009