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Palakunnath Kolayi Chathu Nair Vs. Narayana Mangalath Soolapani Variar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.1010
AppellantPalakunnath Kolayi Chathu Nair
RespondentNarayana Mangalath Soolapani Variar and ors.
Excerpt:
mortgage - otti--pre-emption, right of--waiver--complete mortgage--mortgage embracing land previously held by mortgagee--decree, form of--conveyance. declaration of invalidity. - - in this view he is clearly mistaken. the evidence clearly shows that no such notice was given......15th defendant is not bound under exhibit vii to surrender the b schedule lands unless he is put in possession of the plaintiff's lands. the proper course in the circumstances is to declare that exhibit vii is invalid as against the plaintiff's otti right and cannot affect it. the decision of the lower court is reversed and decree will be passed as indicated above. the 1st and 15th defendants will pay the plaintiff's costs throughout.
Judgment:

1. The plaintiff holds an otti mortgage over certain lands belonging to the temple of which the first defendant is the uralan. The 1st defendant called upon plaintiff to advance without interest a further sum of Rs. 2,000 which he stated was required for discharging debts which the temple had contracted (Exhibit B). The plaintiff required the 1st defendant to satisfy him that the sum was for dewasvam necessity and expressed his readiness to advance a reasonable sum for interest (Exhibit I).

2. The 1st defendant then required the plaintiff to deposit the amount demanded with, some third person and he would then satisfy the plaintiff about the necessity for the loan. No further correspondence took place between the parties. The first defendant borrowed a sum of Rs. 1,500 and odd or 2,000 from the 15th defendant and created an otti in his favour. Of this amount a sum of Rs. 1,050 was to be used for discharging a kanom, mortgage held by the 15th defendant over certain other properties after getting possession of the lands held by the plaintiff. The plaintiff Sues to get Exhibit VII, the document in the 15th defendant's favour cancelled. The Subordinate Judge held that the plaintiff could not claim any right of pre-emption on the ground that Exhibit VII does not create a complete mortgage in the 15th defendant's favour. In this view he is clearly mistaken. No doubt, Exhibit VII lays on the 1st defendant the duty of putting the 15th defendant in possession of the properties but authorises the 15th defendant to sue the plaintiff for possession if the 1st defendant did not put him in possession. The title of the 15th defendant as mortgagee is complete under Exhibit VII. We do not agree that the plaintiff waived his right of pre-emption. There could be no waiver unless the first defendant gave notice to the plaintiff how much money and on what conditions any one else was prepared to advance. The evidence clearly shows that no such notice was given. We cannot direct a conveyance to be made in the plaintiff's favour as the 15th defendant is not bound under Exhibit VII to surrender the B Schedule lands unless he is put in possession of the plaintiff's lands. The proper course in the circumstances is to declare that Exhibit VII is invalid as against the plaintiff's otti right and cannot affect it. The decision of the lower Court is reversed and decree will be passed as indicated above. The 1st and 15th defendants will pay the plaintiff's costs throughout.


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