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Konna Panikar Vs. Karunakara and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in(1893)ILR16Mad328
AppellantKonna Panikar
RespondentKarunakara and ors.
Cases ReferredPearce. v. Morris L.R.
Excerpt:
.....60--partial redemption--indivisibility of mortgage--civil courts act--act iii of 1873 (madras), section 14. - - 9. as to (2), we observe that the point does not appear to have been argued before the lower court and is not distinctly raised in the grounds of appeal to this court. the court, however, distinctly held that the heir-at-law, if known, ought to have been made a party. to allow plaintiff, having failed in his case as originally set up, to fall back upon his right to redeem as part owner of the mortgaged property would be to allow him to succeed on a case different from and inconsistent with that set up in his plaint. plaintiff never applied for this to the lower court, indeed he could not well have done so considering what his case was, and we do not think this indulgence..........or uralars of the devasom.(2) that plaintiff being admittedly entitled to redeem some of the items subject to the kanom has a right to redeem the whole kanom.(3) that the purchase by plaintiff was bond fide and for the benefit of the devasom and is therefore binding upon it.8. we shall deal with these three points in order. as to (1) the kanom deed to the first defendant (exhibit v) describes all the 26 items as the property of the devasom. first defendant had therefore notice that the kolathill illom was merely trustee for the devasom, and was bound to see that the person seeking to redeem the property represented the devasom. had he not done so he might be liable at the suit of the devasom to account over again for the arrears of purapad. it is argued that as the members of the.....
Judgment:

1. Mr. Sankaran Nayar for respondents raises the preliminary objection that the appeal lies to the District Court and not to this Court, as the value of the subject-matter of the suit does not exceed Rs. 5,000.

2. We consider that there are two distinct causes of auction in the suit, namely, the claim for redemption and that for the arrears of rent, and that, therefore, the value of the subject-matter of the suit is the aggregate value of these two heads of relief, i.e., Rs. 5,000 for the suit to redeem and Rs. 122 for the claim for arrears of rent.

3. We, therefore, overrule the objection and hold that this Court has jurisdiction to try the appeal. This is a suit brought by plaintiff as karnavan of his tarwad to redeem 26 parcels of land demised on kanom to the tarwad of which first defendant is the karnavan and defendants Nos. 2 to 67 are members by the karnavan and two members of the Kolathill illom, and to recover arrears of purapad.

4. Plaintiff claims as melkanomdar of items 4, 5, 9, 16, 20, 23 and 24 and purchaser of the jenm right in the other plaint items.

5. Defendants Nos. 68 to 91 are persons in possession under first defendant and the ninety-second defendant was added as defendant as claiming that item 1 was the jenm of her Vennayur Devasom. Items 1, 2, 3 and 26 are admitted to be jenm of the Kolathill illom. The main defence raised by defendants Nos. 1 to 4, who were the principal contesting defendants in the lower Court, and on appeal, was that items 6 to 8, 10 to 15, 17 to 23 and 25 were the property of the Pisharikovil Bhagavati Devasom of which the Kolathill illom held only the uraima right, and therefore, the sale of the jenm of these items to plaintiff's family was invalid and conferred no right to redeem. It is admitted that items 4, 5, 9, 16, 20, 23 and 24 are the property of the last named devasom. Upon these items plaintiff acquired only a melkanom right, which, it is conceded, would, subject to the question of splitting the kanom entitle him to redeem and place himself in the place of the kanomdar Plaintiff denied the title of the devasom to the other items, and the issues chiefly fought in the lower Court were the first and second relating to items 6, 7, 8, 10 to 15, 17 to 23 and 25.

6. Defendants Nos. 1 to 4 also set up an agreement to renew evidenced by a document (Exhibit I), but this was found by the Subordinate Judge to be a forgery Upon the first two issues the Subordinate Judge found that the items to which they relate were the property of the devasom which was a public or quasi public devasom, and therefore the sale of the jenm right in these lands to plaintiff was invalid and gave plaintiff no right to redeem them. As the mortgage debt, which was a charge upon all the items, could not be split and plaintiff could not redeem these items, he could not redeem at all and the suit was, therefore, dismissed.

7. In appeal the findings of the Subordinate Judge as to the items the subject of the first issue being the property of the devasom and as to the nature of devasom were not disputed, nor was the finding as to the falsity of the document (Exhibit I), appellant's vakil, in support of the appeal, relied chiefly on the following grounds:

(1) That defendants who claim by mortgage under the Kolathill illom cannot dispute their rights, and the right of plaintiff as their assignee to redeem, whether their title be that of jenmis or uralars of the devasom.

(2) That plaintiff being admittedly entitled to redeem some of the items subject to the kanom has a right to redeem the whole kanom.

(3) That the purchase by plaintiff was bond fide and for the benefit of the devasom and is therefore binding upon it.

8. We shall deal with these three points in order. As to (1) the kanom deed to the first defendant (Exhibit V) describes all the 26 items as the property of the devasom. First defendant had therefore notice that the Kolathill illom was merely trustee for the devasom, and was bound to see that the person seeking to redeem the property represented the devasom. Had he not done so he might be liable at the suit of the devasom to account over again for the arrears of purapad. It is argued that as the members of the Messad family, who represented the Kolathill illom, could have themselves brought a suit to redeem, so can plaintiff as their assignee. The answer to this is that the Kolathill illom could have sued to redeem, because they represented the devasom, whereas plaintiff not only does not represent the devasom, but denies the title of the devasom as to the items of property the subject of the first issue. We think defendants were entitled to question the right of plantiff to redeem on the ground that he did not represent the devasom.

9. As to (2), we observe that the point does not appear to have been argued before the lower Court and is not distinctly raised in the grounds of appeal to this Court. The argument is this: plaintiff is admittedly owner of the items 1,2,3 and 26, which were the jenm property of the Kolathill illom. He is also entitled to redeem the items 4, 5, 9, 16, 20, 23 and 24 by virtue of the melkanom. He cannot redeem these items without offering also to redeem all the other items subject to the kanom (Transfer of Property Act, Section 60). He is, therefore, entitled to redeem all the items subject to the kanom. In support of this position appellant's Vakil relies on the case of Hall v. Heward L.R. 32 Ch. D. 430. In that case real and personal estates were mortgaged together and the mortgagor died, leaving a will as to his personal estate, but intestate as to his real estate. It was not known who was the heir-at-law, and the mortgagee took possession. The executrix of the mortgagor sued to redeem the whole property mortgaged, and it was held that she was entitled to a decree subject to the equities of the other persons interested. The Court, however, distinctly held that the heir-at-law, if known, ought to have been made a party. We think that the principle laid down in this case, and that of Pearce. v. Morris L.R. 5 Ch. App. 227 which it followed, has no application to the present case. Plaintiff did not frame his suit as owner of part of the mortgaged property and therefore entitled to redeem the whole. If he had done so, he must have made some person a party to represent the devasom which has been found to be the owner of part of the property. He could not have so framed his suit, for to do so would have been inconsistent with his case which was a denial of the title of the devasom as to the items the subject of the first issue.

10. It is not a case of unknown persons interested in the equity of redemption as in the English cases, but of a known person interested in the equity of redemption, whose title plaintiff denies; to allow plaintiff, having failed in his case as originally set up, to fall back upon his right to redeem as part owner of the mortgaged property would be to allow him to succeed on a case different from and inconsistent with that set up in his plaint. It is urged that some persons representing the devasom might now be made a party. Plaintiff never applied for this to the lower Court, indeed he could not well have done so considering what his case was, and we do not think this indulgence should be granted to him at this stage of the suit. As he failed in his case as originally put forward in his plaint, the Subordinate Judge was, in our opinion, right in dismissing the suit. It is to be noted that plaintiff does not mention the devasom in the plaint even as owner of the items subsequently admitted to be its property. He must have known of the title of the devasom at least to these items, for his melkanom deed (Exhibit D) recites it. This and other circumstances in the case point rather to a collusive attempt between him and his vendors to defraud the devasom.

11. As to the third point taken by appellant's Vakil it is open to the same objection that it was not raised in the Court below and is inconsistent with plaintiff's case. No issue was raised upon it, and the case was fought out in the lower Court upon entirely different questions. We must decline, at this stage, to allow the question to be raised.

12. No good reason has been shown for interfering with the decision of the lower Court, and we confirm it and dismiss the appeal with costs.

13. Defendants Nos. 1 to 4 put in a memorandum of objections against the disallowance of their costs. They set up a deed of agreement, to renew which was found to be a forgery, and the Subordinate Judge was quite right in disallowing their costs.

14. The memorandum of objections is dismissed with costs.


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