A. Meeran Pillai vs M. Chellappan and another

K. Sampath, J.—The first defendant in O.S. No. 387/69 on the file of the Second Additional District Munsif, Kuzhithumi, is the appellant in

the Second Appeal. The suit was for redemption by the first respondent on the following averments:

The suit property of an extent of one acre belonged to a tarwad called Thaithottam Tarwad. Kanakku Thambi Velayudhan Sankaran was the

Karnavan of the tarwad. He mortgaged the ''A'' schedule property to Meeran Pillai, son of Syed Mohammed for fanams 3800 on 21-7-1086

M.E. The mortgagee assigned it to one Velayudhan Pillai, nephew of Kumara Pillai with possession on 24-3-1101 M.E. Velayudhan Pillai took

another mortgage from the original mortgager for fanams 3500 on 20-4-1101 M.E. over the ''B'' schedule property getting possession of the same.

Thus, the entirety of A & B schedule properties came under his possession and enjoyment. He assigned the mortgages on 7-9-1114 M.E. in

favour of his daughter Sarojini Amma over the entire suit Survey number. She, in her turn, assigned the mortgages to Thankayyan Nadar, son of

Kutty Kannu Nadar and another on 19-8-1120 M.E. This was assigned on 8-6-1121 M.E. to Meeran Pillai, the appellant herein. The appellant

was in possession and enjoyment of the entire survey number as mortgagee. The second/ respondent the second defendant had some interest

under the appellant. The first respondent had purchased the entire suit survey number from the jenmi tarwad under seven sale deeds with the

building thereon. He was entitled to redeem and recover possession from the appellant and the second respondent on payment of the mortgage

amount of 7300 fanams. As the demand by the first respondent was not responded, the suit came to be filed.

The appellant resisted the suit contending inter alia as follows:

Kanakku Thampy Velayudhan Shankaran was not the Karnavan of the above tarwad at the time he was stated to have created the mortgages. He

was only a junior member till his death in 1105 M.E. The mortgages sued upon were not subsisting as they had merged in the larger jenmon right of

the appellant. The vendors of the first respondent had no title to convey. The first respondent was not the successor-in-interest of the mortgagor.

The vendors were neither the heirs nor the successors-in-interest of Kanakku Thampy Velayudhan Sankaran. Chempakaraman Thanuvan was the

common Karnavan of Thaithottam tarwad. He mortgaged one half of the suit property on 10-4-1059 M.E. to Samipillai Valliamman Pillai for 800

fanams. There was an assignment on 21-11-1072 M.E. in favour of Ulakan Thampi. On 17.9.1073 M.E. Velayudhan Thampi Sankaran Thampi

got assignment of it. Under document No. 216 dated 17-9-1073 M.E. he got mortgage for the other half for 1100 fanams. He came into

possession of the whole property as a mortgagee of the common tarwad. The mortgage sued upon did not subsist. Thaithottam became divided

into five branches long before settlement period. One such branch became subdivided into four sub branches. In the revenue settlement of the year

1080 M.E. patta was issued in accordance with the above shares. The persons who executed sale deeds to the first respondent belonged to patta

No. 126 branch, who had no subsisting title to any inch of land. Kanakku Thampi Chempakaraman Velayudhan was the last member of his

branch. His share was sold in Court auction and purchased by Velayudhan Pillai, son of Sankaran Thampi, who further sold it to the appellant on

8-6-1121 M.E. The 1/5th share in patta No. 122 fell to the share of Sankara Pillai Mathevan Pillai and Bhageerathi Pillai Thankachi. They sold it

to the appellant on 25-6-1121 M.E. The appellant purchased the shares of the several persons and became entitled to the jenmon right of the

entire suit property and got the paramount title. Lakshmi Bai Thankachi and others of the first respondent''s vendors branch filed O.S. No. 243/52

on the file of the District Munsif''s Court. Kuzhithurai, to redeem the suit mortgages. It was dismissed upholding the title of the appellant. The

appellant was bound by that. The suit was barred by res judicata and estoppel and also by limitation. The appellant''s possession had also been

adverse to the vendors of the first respondent''s sale deeds. The building in the suit property belonged to the appellant. The second respondent was

residing in a portion of it for rent under the appellant. There was no cause of action for the suit.

The second respondent remained ex parte. The first respondent filed a replication contending as follows:

Originally Chempakaraman Parameswaran was the Karnavan of the Thaithottam Tarwad. He was succeeded by Parameswaran Ulakan, who was

succeeded by Kali Velayudhan as the Karnavan. Kanakku Thamby Velayudhan Sankaran succeeded Kali Velaudhan as Karavan. He died in

1104 M.E. (1929) after holding the Karnavasthanam from 1088 M.E. Another Chempakaraman Parameswaran succeeded him as Karnavan and

held the Karnavasthanam up to 1959. The above said branch dealt with the entire suit property as absolute owners. There was a portion in 1959

in which all the members of that branch were parties. The appellant had taken a document from one of the parties to the partition deed and

therefore he was not competent to dispute the title of the first respondent. Even if the other branches had any right at any point of time, it had been

lost by the long, continuous adverse possession and dealings by the members of the branch of Veluyudhan Sankaran. Chempakaraman Thanuyan

was never the Karnavan of the branch. Even if he had any right, it devolved on the branch of Sankaran Thampi as per the decree in O.S. No. 190

of 1087 of this Court. The possession of the tarwad properties was not in accordance with the patta. The sale deeds relied on by the appellant

were all invalid. Some of the executants were not even the members of the original tarwad. The appellant was estopped from denying the title of

the first respondent. During the pendency of O.S. No. 243/52 the-appellant took a sale deed from Lakshmi Bai Thankachi over 12 cents. She was

a member of Velayudhan Sankaran''s branch, which entered into partition in 1950. Since all the members did not join in it, another partition was

effected in 1959 including all the members superseding 1950 partition deed. Since the first defendant took sale from the plaintiff in O.S. No.

243/52, the suit was not then pressed and it was not decided on merits. The appellant had thus admitted the title of the branch of Velayudhan

Sankaran. In both the partition deeds, the entire suit survey number was dealt with. The building belonged to the mortgagor. The first respondent

was the owner of the building.

On the above pleadings, the trial court framed as many as ten issues and found that the first respondent had no interest on the equity of

redemption and the appellant had become absolute owner of the suit property by virtue of the release of discharge taken by him from Sankaran

Velayudhan, the heir at law of the mortgagor. Aggrieved, the first respondent filed appeal A.S. No. 20/83 before the Subordinate Judge,

Kuzhithumi. The learned Subordinate Judge having reversed the decision of the trial court and decreed the suit, the present Second Appeal has

been filed by the appellant.-

At the time of admission, the following substantial questions of law were framed for consideration in the Second Appeal:

(1) Whether the plaintiff can be termed as the purchaser of equity of redemption from Sankaran Velayudhan to enable him to redeem the property

and

(2) Whether the Courts below erred in holding that the plaintiff is in the position of sub-mortgagor having regard to the fact that the first defendant

having already obtained the main mortgage rights extinguished the sub-mortgages, Exs.A-1 and A-3 by obtaining Ex.A-6 assignment and thereafter

the first defendant had mortgage right besides equity of redemption and there is no relation of sub-mortgagor and sub-mortgagee between the

plaintiff and the first defendant in the suit.

Mr. Ananthakrishnan Nair, learned Counsel for the appellant, submitted as follows:

The lower Appellate Court erred in holding that the first respondent was the sub-mortgagor as per Exs.A-5 to A-12 sale deeds, particularly when

it was not the case of the first respondent that he was the sub-mortgagor. The case of the first respondent was that he had paramount title over the

suit properties and therefore he was entitled to a decree for redemption. Even conceding that the first respondent was a sub-mortgagor, the lower

Appellate Court clearly over looked that without redeeming the earlier mortgages, Exs.B-1 and B-4, the first respondent was not entitled to

redeem Exs.A-1 and A-3 sub-mortgages. So far as Exs.B-1 and B-4 are concerned, they were of the years 1883 and 1898 and the suit was

clearly barred by limitation. The lower Appellate Court failed to see that P.W.I had clearly admitted that Sankaran Thampi was a junior member at

the time of acquisition of Exs.B-1 and B-4 mortgages and admittedly Velayudhan was his son and as per Section 11 of the Nair Regulation No. II

of 1100 M.E., the mortgage right devolved on Velayudhan and he was not competent to execute Ex.A-15 release in respect of the suit properties.

In as much as the appellant had taken the release from Velayudhan and various sale deeds from competent persons, he was entitled to resist the

suit for redemption. The lower Appellate Court ought to have seen that Exs.A-1 and A-3 mortgages were not subsisting and the other two

mortgages Exs.B-1 and B-4 were barred by limitation. The suit ought to have been dismissed as misconceived and not maintainable. The lower

Appellate Court ought to have seen that the appellant was well within his rights in disputing the claim for redemption of Exs.A-1 and A-3

mortgages because of Exs.A-6 assignment.

The lower Appellate Court ought to have further seen that by virtue of Exs.A-6, A-1 and A-3 mortgages were extinguished once for all as the

assignee had already obtained the mortgage rights of Velayudhan Sankaran by taking a release under Exs.A-5.

Mr. T.R. Rajaraman, learned Counsel for the contesting first respondent, referred to Exs.A-20, A-21 and A-14 and submitted that under the

partition deed Ex. A-14, the suit property became the exclusive property of the first respondent''s predecessors-in-title. The appellant had not

even traced title. He had not produced the partition deed. The conclusion reached by the lower Appellate Court could not be taken exception to.

Mr. Ananthakrishnan Nair submitted in reply that Ex.A-20 suit was for money due on a simple mortgage. The un-fractural mortgage has nothing

to do with Ex.A-20. It does not show that the earlier mortgage was discharged. It was in the year 1912 that all mortgages were alive, and there

was nothing to show that Exs.B-1 to B-4 got discharged. It was therefore submitted that the courts below did not rely on Ex.A-20 and the

appellant had traced title and there was no document after 1948 to show that the title of the tarwad was accepted and the suit was prima facie

barred by limitation.

The learned Counsel Mr. Ananthakrishnan Nair relied on the following judgments:

(1) Naina Pillai and others v. Daivanat Ammal AIR 1936 Madras 177 = 43 L.W. 302;

(2) Gouri Pillai Narayani Pillai v. Lakshmi Pillai Kunji Pillai (AIR 1953 Trav.Co.271)

(3) Chittna Goundan and others v. Subramanian Chettair and another (1959-I MLJ 228)

(4) Thomattoor Chelamannan and another v. Thamattoor Kurumbikkot Pare Manakkal Parameswaran and others (AIR 1971 Kerala 3)

(5) Krishnan and others v. Avyapan Pillai (AIR 1974 Kerala 218) and

(6) An unreported judgment of this Court in S.A. No. 1367/82 dated 29-3-1995 by S.S. Subramani, J.

It is seen from the records and it is also found by the lower Appellate Court that when Velayudhan Sankaran Thampi took assignment Ex.B-3

and the mortgage under Ex.B-4, he was only a junior member of the tarwad. Exs.B-3 and B-4 both came into existence in 1073 M.E.

corresponding to 1898.

In 1077 M.E. (1902) one Parameswaran Ulakan was the Kamavan and in 1087 M.E. corresponding to 1912 Kali Velayudhan was the

Karvanan. This is seen from the copy of Purakkadom deed Ex.A-18 dated 29-8-1096 M.E. (11-4 1921) executed by Velayudhan Sankaran

himself in favour of one Gurupadam Nadar. Therefore, Exs.B-3 and B-4 must be deemed to be Velayudhan Sankaran''s self-acquisitions.-

The legal position on this aspect is also beyond doubt. In Naina Pillai and others v. Daivanai Ammal (AIR 1936 Madras 177 = 43 L.W. 302)

it has been held by a Division Bench, of this Court relying on Venkata v. Rama (1885-8 Madras 249 FB) and Venkata Jagannadha v.

Veerabadrayya (AIR 1922 PC 96 = 14 L.W. 50 = ILR 44 Madras 643, 61 IC 667, 48 IA 244) that,

when Kamam service inam lands had been enfranchised the lands form the separate property of the person in whose name they had been

enfranchised and were not subject to any claim to partition by other members of the family.

S.S. Subramani, J. has held in S.A. No. 1367/82 dated 29-3-1995 as follows:

The accepted principle of law is that when a property is acquired by a manager or Karnavan of a family, it is presumed that it is a family property.

But, in case where a junior member acquires the property, that presumption is not applicable unless the junior member is also in management of the

family items.

In the instant case, the lower Appellate Court also finds that ""it has to be presumed that Exs.B-3 and B-4 transactions were made by

Velayudhan Sankaran with his own funds."" It is also established position that by merely being dealt with as joint-family property, the self-acquired

property of the person who deals with it as such does not necessarily lose its character of separate property. The person who alleges that the

property is joint family property must show that the owner has voluntarily thrown the property into the joint stock with the intention of abandoning

all separate claims on it."" (Naina Pillai and others v. Daivanai Ammal - AIR 1936 Madras 177 = 43 L.W. 302).-

Section 8 of the Transfer of Property Act also makes the position clear.

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the

transferor is then capable of passing of the property'' and in the legal incidents thereof.

(Rest of the Section omitted).

Conceding that the sub-mortgages Exs.A-1 to A-4 were there, the question now is whether the plaintiff/first respondent could redeem them

without redeeming Exs.B-3 and B-4. Only if Exs.B-3 and B-4 are redeemed, the sub-mortgages could be redeemed.

In Chinna Goundan and others v. Subramania Chettiar and another (AIR 1959 Madras 246 = 72 L.W. 149 = (1959) I MLJ 228 = ILR 1959

Madras 369) a Full Bench of this Court held as follows:

The mortgagor who has a right to redeem his mortgage cannot be deprived of his right to redeem by the creation of a sub-mortgage by his

mortgagee. The redemption of the mortgage will put an end to the sub-mortgage and the sub-mortgagee being a person interested in the mortgage

right would be a necessary party to a suit for redemption by the mortgagor. The sub-mortgagee who to a limited extent is an assignee of the

mortgage right will have a corresponding right to sue the mortgagor by reason of his derivative title. In enforcing his sub-mortgage he can bring to

sale the properties mortgaged to his mortgagor, viz., the mortgagee, instead of merely bringing to sale the interest of the latter. In such a case the

form of the decree would be to direct an account being taken between the mortgagee and the mortgagor and also between the sub-mortgagee and

the mortgagee, and declare their respective rights in the sale proceeds of the mortgaged property. Form No. 11 of Appendix D to the First

Schedule to the CPC provides for such a case. In Vellayan Chettiar v. Mahalinga, (1938-1 MLJ 171) Venkataraman Rao, J. observed:

Ordinarily a sub-mortgagee''s right just like any other mortgagee is to enforce his mortgage and bring to sale the property mortgaged to him, that is,

the interest of the mortgagee in the property mortgaged to the latter. But the law permits him to enforce sale of his said property under

circumstances and conditions which would entitle the original mortgagee to bring the properties to sale. To such a suit the original mortgagor should

be made a party. The principle on which this is allowed is that a sub-mortgagee''s claim is by a derivative title from the mortgagee and he is in fact

an assignee of the mortgagee. When the mortgagee effects a mortgagee of his mortgage interest-he is creating a transfer of his right as. mortgagee

though not absolutely. Therefore when a sub-mortgagee sues for sale of the property he is enforcing the right of the original mortgagee.

Thus the two remedies which a sub-mortgagee has got are distinct and should in our opinion be mutually exclusive, the first being based on the

convenient, the second on a derivative title to the mortgage right. Ram Shankar Lal v. Ganesh Prasad (1907 ILR 29 All.3853 (F.B.) was a case

where a Full Bench of the Allahabad High Court considered the right of the sub-mortgagee to the first of the two remedies mentioned above. It

was held that a sub-mortgagee of mortgage rights in immovable property was entitled to a decree for sale of the mortgage right of his mortgagor,

viz., the mortgagee. In Amratlal v. Naranbhai (1910-9 IC 765), a derivative or sub-mortgagee was held entitled to sue the mortgagee without

making the original mortgagor a party and that the rights of the mortgagor could not be affected by any decree in such a suit and that even if the

decree in the suit spoke generally of the sale of the mortgaged property, the mortgaged property would not include the interest of the mortgagor in

the property.

The second remedy available to a sub-mortgagee has been recognized in Muthu Vijaya Mahali Durai v. Venkatachalam Chetty, (1896-6 MLJ 235

= ILR 20 Mad. 35) where it was held that a sub-mortgagee was entitled to a decree for the sale of the original mortgagor''s interest in the

circumstances which would have entitled the mortgagee on the date of the sub-mortgage to claim that relief, Subramania Iyer, J. observed at page

38:

The original mortgagor and the sub-mortgagee, as the holders of different interests in one and the same specific property, stand to one another in a

relation that gives rise to certain rights and duties inter se: It is admitted that a mortgagor whose right to redeem originally existed as against the

mortgagee alone, becomes, by virtue of the sub-mortgage, entitled to exercise that right as against the sub-mortgagee also, who consequently must

be made a party to redemption proceedings. Now, as the sub-mortgagee may be redeemed by the original mortgagor, it ought to be held that the

former may foreclose the latter,. where that relief can be claimed; where such relief cannot be granted, he may obtain an order for sale and thereby

put an end to the other party''s right to redeem. For it is only just and reasonable that, whilst the law, on the one hand, recognizes a right in the

original mortgagor to redeem the sub-mortgagee, it should give the latter, as against the former, the generally correlative right (Daniel''s Chancery

Practice, 6th Edition at page 1412) to foreclose or sell.

In Mohideen Pichai v. Nagoor Meera (1937) 2 MLJ 536), a sub-mortgagee sued for sale of the property impleading both the mortgagor and

mortgagee. The Court decreed the suit on the claim in the sub-reportage which was smaller than the amount due on the mortgage. The mortgagee

thereafter filed his suit on the mortgage. It was held that the causes of action for the two suits were different and that the decision in the former suit

would not operate as res judicata in regard to the latter suit. Vengannan v. Ramaswami (1944-2 MLJ 40: ILR (1944 Mad. 104) was a case

where originally a sub-mortgagee filed a suit impleading both the mortgagee and mortgagor praying for sale of the mortgaged property. The plaint

was sought to be amended by abandoning the relief as to sale of the property and restricting it to sale of the mortgage right. The learned Judges

held that the amendment seeking a different relief was based on the same cause of action, namely, the sub-mortgage. Leach, CJ. observed at page

107:-

A sub-mortgagee has two courses open to him. He can, if he wishes, limit his suit to the sub-mortgagor, in which case he only asks for the sale of

the sub-mortgagor''s interest in default of payment of the decretal amount. On the other hand, he may join the original mortgagor and ask for a

decree for the sale of the mortgaged property in default of payment. In this case the relief to which he is entitled is to be gathered from Form No.

11 in Appendix-D to the Code of Civil Procedure.

It is unnecessary for the purpose of the present case to decide whether the cause of action for the two remedies open to a sub-mortgagee are the

same or distinct. But the two remedies available to a sub-mortgagee are based on different rights and can only be alternative ones. If the sub-

mortgagee has elected one of the two remedies and obtained a decree the cause of action on the sub-mortgage would be merged in the judgment

and it would not be open to him to revive it for relief on the basis of the alternative remedy.

In Thamattoor Chelamanna and others v. Thamattoor Kurubikkat Pare Manakkal Parameswaran and others (AIR 1971 Kerala 3) a Full

Bench of the Kerala High Court held as follows:-

A sub-mortgage effects a partial transfer of the mortgage right and when a mortgage is redeemed in the presence of sub-mortgagee, the sub-

mortgage is also redeemed. The property is freed of the sub-mortgage, and the sub-mortgagee must thereafter look for payment to his mortgagor

and to the money paid for the redemption. The test for determining whether the sub-mortgage right remains with the person redeeming as a

separate right so as to be subject to redemption by a subsequent sub-mortgagee, would be whether the person redeeming has a right of

subrogation in respect of the redeemed sub-mortgage. We have already indicated our view that where, as in these cases, the person redeeming is

the mortgagor there is no such right of subrogation, and hence no question of the mortgager holding the redeemed sub-mortgage as a separate

right. Even if it be that the exclusion of the mortgagor from the right of subrogation by Section 92 of the Transfer of Property Act does not apply to

the redemption effected by the third defendant, either in the view that the word, ""mortgagor"" in the section means the original mortgagor and does

not include a purchaser of the mortgaged property, or in the view that Section 92 has no retrospective application, the question would still be one

of intention. It does not appear that the third respondent was aware of the subsequent sub-mortgage and there is no reason to think that it was his

intention to keep the earlier sub-mortgages alive.

The case in Krishnan and others v. Ayyappan (AIR 1974 Kerala 218) is on all fours with the present case. In that case, one K. Tarwad had

mortgaged with possession some land which included the suit property to one M.S. and another under Ex.D-1. A junior member of the tarwad

SPGP filed a suit for redemption of the mortgage. The suit was decreed. SPGP obtained possession. He mortgaged to one P.P. gifted his right to

his sons, members of the original mortgagor tarwad. This right devolved on defendants 1 and 2 in the suit. Plaintiffs and defendants 3 to 5,

members of the original tarwad, entered into a partition prior to the mortgage by suit. There was a provision in the partition that they would be

entitled to equal shares in the tarwad property not covered with partition deed alleging that the plaint schedule property belonged to the tarwad and

the plaintiffs claimed that they and defendants 3 to 5 were entitled to the said property. Defendants 1 and 2, who had become entitled to the

property as mortgagees, resisted the suit contending inter alia is that the rights of the tarwad were barred by limitation. The original mortgage Ex.D-

1 had not been redeemed by or on behalf of the tarwad. SPGP was only a junior member. He had obtained possession of the property for himself

and not on behalf of the tarwad. It is not necessary to notice the other defences set up in that case. Both the lower courts decreed the suit for

redemption. The High Court held that the suit was not maintainable for the following reasons:

The possession of SPGP was not on behalf of the tarwad as he was only a junior member. He mortgaged only his possessory right and not that of

the tarwad. The members of the tarwad cannot, on the basis of the provision in the partition deed, seek to redeem that interest. They did not, in the

suit, seek to redeem the earlier mortgage which had been executed by the tarwad, as the suit was only one for redemption of Ex.P-1 mortgage.

The suit was also filed as successors-in-interest of SPGP and no prayer for settlement of accounts and recovery of possession on such settlement

was sought. It was not decided as to whether the members of K. tarwad had any existing right in the property.

The instant case is almost identical to the Kerala case. The plaintiff is not claiming as successor-in-interest of Sankaran Thampi. He claims to

have got the right from members of tarwad. It has been held in Gouri Pillai Narayani Pillai v, Lakshmi Pillai Kunji Pillai (AIR 1953 Travancore-

Cochin 271) that,

The sub-mortgagee has no privity of estate or privity of contract with the original mortgagor. So far as sub-mortgage is concerned the privity of

estate and privity of contract are between the mortgagee and the sub-mortgage and as such the sub-mortgage can be put an end to by redemption

or by release, only by the original mortgagee and his representative-in-interest. If the person representing the mortgagor wants to redeem the

original mortgage, he can terminate the sub-mortgage by making the sub-mortgagee also a party to that suit. But the mortgagor has no right to

directly terminate the sub-mortgage independent of the mortgage. It cannot also be said that on the mortgagor acquiring the rights, under the sub-

mortgagor there is a merger of the sub-mortgage in the ownership of the property. Such merger is possible only if there is no intermediate charge

subsisting.

The period of limitation will be 50 years plus 12 years Kuzhikanom. By 1960 any suit for redemption of the original mortgage has become barred.

In the circumstances, the lower Appellate Court has clearly erred in granting a decree for redemption.

The contentions raised by Mr. T.R. Rajaraman have already been referred to. In view of the established legal position the plaintiff has to be

non-suited. Consequently, both'' the substantial questions have to be answered in favour of the appellant and the Second Appeal will stand

allowed. The judgment and the decree of the lower Appellate Court are set aside and those of the trial Court restored. There will be no order as to

costs.