1. In this case, the plaintiffs, the junior members of a Mahomedan family in Malabar governed by the Murumakatayum law, instituted this suit for a declaration that certain mortgage documents executed by the karnavan were not binding on their tarwad and for possession of some of the properties included in one or other of these mortgages. The District Munsif granted a modified declaration in respect of some of the documents, finding that a portion only of the amounts secured by each of those documents was binding on the tarwad. He declared two documents totally invalid. He also directed the surrender of the items of which possession was claimed. On appeal, the Subordinate Judge did not decide the question how far the documents challenged were binding on the plaintiffs' tarwad, but he held that, assuming that the findings of the District Munsif were correct, the plaintiffs were not entitled to maintain the suit. The principle on which he purports to base his judgment is that a suit in ejectment or for a declaration that the defendants have no right at all under the mortgage documents cannot be converted into a suit for redemption on payment of a portion of the mortgage amount or for a declaration that the mortgages are valid only to a limited extent. Apart from the question whether the Court has not a discretion to allow redemption in a suit in ejectment, the Subordinate Judge appears to have misconceived the nature of the question before him. The plaintiffs' case is that the mortgages are not binding on the tarwad. The result of the District Munsif's findings is that the mortgages are not valid as such, but that a portion of the money received by executing the mortgages was used for the benefit of the tarwad and that the mortgagees would be entitled in equity to a charge for the amount which actually benefited the tarwad. It can scarcely be said that the mortgages as such were partially valid and partially invalid, but the Court, in granting the declaration or in directing the ejectment, would refuse to do so without, at the same time, doing equity to the defendant. It is by resorting to this equitable jurisdiction that, while mortgages are declared invalid, the Courts could declare a, charge to a limited extent. The mortgagees could not have the benefit of the term mentioned in the mortgage documents. These facts clearly show that the mortgages themselves cannot be held to be valid to any extent. We must hold that the Subordinate Judge was wrong in reversing the decree of the District Munsif in Umine without adjudicating on the merits 'of' the contest between the parties. We, therefore, reverse the decree of the Subordinate Judge and remand the appeal to the District Court of North Malabar for fresh disposal according to law. We may observe that the finding that the defendants are entitled to a charge to the extent to which the District Munsif found that they were entitled, is binding on the plaintiffs. Whether they are entitled to a charge for a larger amount is a question which the Subordinate Judge has not disposed of. Whether any of the mortgages is wholly valid will depend upon the finding at which the District Judge may arrive at the fresh hearing. The costs of this appeal will abide the result.
C.R.P. No. 304 OP 1911.
2. In regard to the civil revision petition, we are unable to say that there is anything more than an error of law in the judgment of the lower Appellate Court, assuming that its decision is not right. We must, therefore, dismiss it with costs.