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Kayarat Kizhakkethil Raru Nair Vs. Thirunarayanapuram Uralan Karuthedath Pulakkat Manakkal Neelakondhan Namboodri and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in61Ind.Cas.510
AppellantKayarat Kizhakkethil Raru Nair
RespondentThirunarayanapuram Uralan Karuthedath Pulakkat Manakkal Neelakondhan Namboodri and ors.
Cases ReferredPonnambala Pillai v. Muthu Chettiar
Excerpt:
.....renewal of kanom. - - the suit was brought by one of the two uralans of a devaswom to redeem a kanom mortgage granted in december 1903. the other uralan is the 64th defendant, who was not non-suited before this suit was brought and was not even added as a party, defendant till the first defendant raised, among others, the objection that the suit was bad for non--joinder of the plaintiff's co--uralan. the soundness of that decision has been in a manner doubted in certain observations found in a few subsequent eases like istoop v. 3. the next contention is, that the lower courts failed to record a proper finding on the question of the costs incurred by first defendant in defending the plaint devaswom's jenmi title to the property (along with his own title as mortgagee) against a rival..........the appellant before us. the suit was brought by one of the two uralans of a devaswom to redeem a kanom mortgage granted in december 1903. the other uralan is the 64th defendant, who was not non-suited before this suit was brought and was not even added as a party, defendant till the first defendant raised, among others, the objection that the suit was bad for non--joinder of the plaintiff's co--uralan.2. the first question, therefore, for consideration is, whether one of two uralans is entitled to redeem a kanom without consulting the other uralan. the general rule embodied in section 48 of the trusts act is not disputed that all the trustees should act together in conducting the business of the trust. but the lower courts rely on the full bench case in karattole edamana v. unni kannan.....
Judgment:

Sadasiva Aiyar, J.

1. The first defendant is the appellant before us. The suit was brought by one of the two Uralans of a Devaswom to redeem a Kanom mortgage granted in December 1903. The other Uralan is the 64th defendant, who was not non-suited before this suit was brought and was not even added as a party, defendant till the first defendant raised, among others, the objection that the suit was bad for non--joinder of the plaintiff's co--Uralan.

2. The first question, therefore, for consideration is, whether one of two Uralans is entitled to redeem a Kanom without consulting the other Uralan. The general rule embodied in Section 48 of the Trusts Act is not disputed that all the trustees should act together in conducting the business of the trust. But the lower Courts rely on the Full Bench case in Karattole Edamana v. Unni Kannan 26 M. 649, which decided that, so far as the redemption of a mortgage is concerned, the wide language of Section 91 of the Transfer of Property Act entitled one of two trustees to redeem a mortgage of the trust property without reference to the other trustee. The soundness of that decision has been in a manner doubted in certain observations found in a few subsequent eases like Istoop v. Ayappen 16 Ind. Cas. 435, and Kunban v. Moorthi 7 Ind. Cas. 422 . Mr. K.P.M. Menon, with his usual ability and strength of argument, attacked the decision in Karattole Edamana v. Unni Kannan 26 M. 649, the main heads of his contention being that one of several trustees does not constitute a separate judicial person having an interest in the trust property within the meaning of Section 91 of the Transfer of Property Act, and that the question of the benefit to the trust or the detriment to the trust by the proposed redemption by one only of several trustees was ignored in the Full Bench decision. That decision, however, has not been since dissented from, though it was pronounced so long ago as 1908, and it seems to be quoted without dissent in Ponnambala Pillai v. Muthu Chettiar 33 Ind. Cas. 52. I do not think that this is a case in which the law so settled should be again referred to a larger Bench for re consideration, and I shall, therefore, accept it. The objection to the maintainability of the suit by the plaintiffs thus fails.

3. The next contention is, that the lower Courts failed to record a proper finding on the question of the costs incurred by first defendant in defending the plaint Devaswom's Jenmi title to the property (along with his own title as mortgagee) against a rival Jenmi. Those expenses were incurred in the nineties when a prior Kanom in first defendant's favour was enforced. Assuming that the lower Appellate Court's decision on the question whether the first defendant bad spent more than what was allowed to him as Court costs in the litigation of nineties is unsatisfactory, the question which might be first considered is, whether he is entitled at all to recover such costs in his capacity as mortgage under the renewed Kanom of 1903 which is the Kanom now sought to be redeemed. He can claim to add such costs to the mortgage money only, under Section 72 of the Transfer of Property Act, which provides for such costs being recoverable as part of the mortgage--money in cases where during the continuance of the mortgage such costs are incuired. The renewed Kanom cannot be said to be the same mortgage which existed before the renewal. It seems to me, therefore, that the first defendant's claim for costs incurred during the continuance of the former mortgage is unsustainable. Improvements stand on a different footing as, under Section 5 of the Malabar Compensation for Tenant's Improvements Act, compensation is provided for all improvements whether made by the mortgagee who is sought to be redeemed and who comes within the definition of tenant under the Act or by his predecessor in interest or by former tenants, provided they have not been already paid for.

4. In the result, the appeal fails and is dismissed with costs. Time is extended till expiry of three months from the receipt of records by the District Munsiff's Court for redemption.

Napier, J.

5. I agree.


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