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Nallathampi Chellayyan and ors. Vs. Govinda Pillai Narayana Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 258 of 1964
Judge
Reported inAIR1971Ker9
ActsTenancy Law; Kerala Stay of Eviction Proceedings Act, 1967 - Sections 2; Trusts Act - Sections 90; Transfer of Property Act, 1882 - Sections 63
AppellantNallathampi Chellayyan and ors.
RespondentGovinda Pillai Narayana Pillai and anr.
Appellant Advocate G. Viswanatha Iyer, Adv.
Respondent Advocate C.K. Sivasankara Panicker and; P.G.P. Panicker, Advs.
DispositionAppeal dismissed
Excerpt:
- .....owners of the other half share, should not be allowed to retain a half share in the neighbouring c schedule property obtained on assignment by their predecessor mortgagees (at a time when the mortgage was of the udukoor half share, being before the partition decree) on the strength of their possession of the a schedule property, docs not arise on the pleadings or the evidence. the appellants claim to a half share of the c schedule properly was, therefore, rightly disallowed.2. we might add that so far as the pleadings and the evidence go, defendants i find 2 are the persons interested in the other half share of the a schedule property and that the appellants made no complaint that there were others interested who should have been, but were not, made parties to the suit.3. it is said on.....
Judgment:

Raman Nayar, C.J.

1. When a mortgagee in possession of an udukoor or undivided half share of a property obtains an assignment of an adjoining property belonging to the Government on the strength of his possession of the former property, it seems to us that under Section 90 of the Indian Trusts Act he must hold the latter property for the benefit not merely of his mortgagor but of all persons interested in the former properly including those interested in the other half share -- it is hardly a case of an accession to the mortgaged property corning within Section 63 of the Transfer of Property Act. But that question does not arise in this case, for, we find that in their written statements the appellants (defendants 3, 5 and 9) who (among others) arc the successor mortgagees of an udukoor half share (now, as a result of a subsequent partition decree, of the eastern half) of the property in Schedule A to the plaint, of which half the plaintiff is the mortgagor, made no claim to any interest whatsoever in the other half share, Nor is there any evidence of any such interest. Therefore, the question raised before the learned single Judge in second appeal, namely, whether, notwithstanding the redemption decreed in favour of the plaintiff, the appellants, who it was said wore owners of the other half share, should not be allowed to retain a half share in the neighbouring C Schedule property obtained on assignment by their predecessor mortgagees (at a time when the mortgage was of the udukoor half share, being before the partition decree) on the strength of their possession of the A Schedule property, docs not arise on the pleadings or the evidence. The appellants claim to a half share of the C Schedule properly was, therefore, rightly disallowed.

2. We might add that so far as the pleadings and the evidence go, defendants I find 2 are the persons interested in the other half share of the A Schedule property and that the appellants made no complaint that there were others interested who should have been, but were not, made parties to the suit.

3. It is said on behalf of the appellants that the mortgage in question is an ottikuzhi-kanam and that, therefore, this appeal should be stayed under Section 4 of Act 9 of 1967as amended by Act 5 of 1969. But then there is no appeal against the decree for redemption in so far as the property actually mortgaged, namely, a half share in the A Schedule property is concerned -- the appeal relates only to the C Schedule property, the property obtained on assignment from the Government. As we have said this property is not an accession to the mortgaged property within the meaning of Section 63 of the Transfer of Property Act, and, therefore, cannot be regarded as part of the ottikuzhikanam holding. The C Schedule property is, as it were, held in trust by the appellants for the benefit of the respondent plaintiff by reason of the provisions of Section 90 of the Indian Trusts Act, and such a holder is not a tenant within the meaning of Act 9 of 1967.

4. We dismiss the appeal with costs.


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