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Judgment
Subramonia Iyer, J.—The Defendant is the Appellant in this second appeal. The suit was for redemption of a mortgage of the year 1034 and of a puramkadarn of the year 1074. The document evidencing the first transaction is not before Court. A certified copy of the document of the year 1074 is produced and marked as Ex. C. It purports to be a purakadam for 350 fanams executed by one Padmanabha, Pillai Narayana Pillai, who was the Plaintiff''s karnavan in favour of one Krishnan Mathevan under whose will (Ex II) the Defendant claims. It was alleged in the plaint that the consideration for the mortgage of 1034 was 501 fanams. In paragraphs 5 and 6 of the written statement the Defendant denied the truth of both the transactions alleged in the plaint. She claimed to be the owner of the properties under Krishnan Mathevan''s will wherein he bequethed the properties to the Defendant stating that he is the owner. The Defendant also contended that the Plaintiff is not a member of the tarwad to which the properties belonged and that he has no right to redeem. The Courts below concurrently found that the Plaintiff is a member of the Plavila house, in fact he was the last surviving member of that house, and that he was entitled to redeem.
In coming to that conclusion they relied upon Ex. K which is a sub-mortgage of the year 1047 executed by one Krishna Aiyappan who is the original mortgagee in respect of the mortgage right of the, year 1034. In that document it is stated that the mortgagor in the transaction of the year 1034 was one Easwaran Aiyappan of Pulamoot house and that the consideration for the mortgage was 159 paras of paddy and 501 fanams. The discrepancy between this statement of consideration and that alleged in the plaint was not noted by the Courts below nor did they note specifically Anr. question that is raised in the appeal and the second appeal, viz., that whereas the house of the mortgagor is mentioned as Pulimoot in Ext. K the house name of the Plaintiff is Plavila. In the plaint the Plaintiff describes himself as belonging to Plavila house and states that that house had several other names of which Pullimoot is one. That the Plaintiff had a house-name Pulimoot is also denied in the written statement. Nevertheless parties did not join the issue upon the house-name of the Plaintiff, issue 1 being framed thus:
(1) Whether the plaint property belongs to the Plaintiff''s tarwad? Is he entitled to redeem the mortgage?.
There is no other issue as to whether the Plaintiff is a member of the Pulimoot house or not. Issue 1 was found in favour of the Plaintiff by the Munsiff and in the judgment in the appeal before the District Judge it is stated that the conclusion reached by the Munsiff upon issue 1 was not seriously challenged before him.
Learned Counsel for the Appellant urged before me that neither of the Courts below has considered the question as to whether the Plaintiff is or is not a member of the Pulimoot house. The omission to consider this question is, it is argued, of great moment in view of the fact that in Ex. K which is relied upon by the Plaintiff to prove the details of the mortgage of the year 1034 which is sought to be redeemed, it is clearly stated that the mortgagor was member of the Pulimoot house. It is contended that unless the Plaintiff establishes that he is a member of the Pulimoot house, his suit must fail. In the second appeal a certified copy of the decree in O.S. 1214/1108 of the Neyyabtinkara Munsiff''s Court has been produced by the Appellant as additional evidence to show that the Pulimoot house still exists, there are several members therein and, that O.S. 1214/1108 was a suit for partition among those members. In the peculiar circumstances of this case and particularly in the absence of anything dependable to guide the Court to its conclusion I accept that document as additional evidence as it will supply the lacuna in the evidence and it is marked Ext. 4.
This document at once serves two purposes and both the parties. It serves the Defendant the purpose of showing the existence of Pulimoot house and the Plaintiff the purpose of showing that the property in question is not one of the items that is sought to be divided in that suit which indicates that Pulimoot house does not lay claim to this property. This circumstance is significant because the pattas for his property which are marked in the case as Exts. G and H (the draft and fair respectively) are given in the name of Plavila house. Exts. G and H are of the year 1075 and 1076. The Pulimoot house may have owned the property at the time of the mortgage of the year 1034 and ceased to own it thereafter before the settlement proceedings started by which time the title vested in the Plavila house wherefore patta was granted in the name of the latter house. The absence of any contest or any competing claim for patta then or thereafter probabilises this view and the fact that subsequently Plavila house dealt with the property and Pulimoot did not, confirms it. The non-inclusion of this property in the suit for partition is a clinching circumstance in favour of the view. The evidence in the case shows that the Plaintiff is the last surviving member of the Plavila house. The conclusion reached by the Courts below that the Plaintiff has made out a title to redeem can therefore be supported and is upheld.
The question then is as regards the consideration for the mortgage of the year 1034. Except alleging in the plaint that it is 501 fanams, the Plaintiff has not let in any evidence other than that afforded by Ex. K. Being a document produced and relied upon by the Plaintiff and being a sub-mortgage of the year 1047, it would not be wrong if reliance is placed upon that document to decide the quantum of consideration for the mortgage of the year 1034. Based upon Ex. K I find that the consideration for the mortgage of the year 1034 is 159 paras of paddy as well as 501 fanams. The price of redemption is therefore fixed at 851 fanams and 159 paras of paddy valued on agreement at Rs. 1-12-0 per para.
Learned Counsel for the Respondent contended that all the grounds taken by the Appellant in the memorandum are not open to argument and that the scope of the second appeal is limited to considering the point noted by the judge at the time of admission which related only to the question of the interpretation of Ext. K as regards the consideration for the mortgage of the year 1034.
Is it competent for the Judge admitting the appeal to limit its scope and has he done so? Order 12, Rule 11 says:
(1) Tae Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the Appellant or his pleader and hearing him according if he appears on that day, may dismiss the appeal without sending notice to the Court from Respondent or his pleader.
If on the day fixed or any other day to which the hearing may be adjourned the Appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed.
The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred,
Rule 21 (1) provides that:
Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.
Order 42 Rule 1 says: "The rules of Order 41 shall apply so far as may be, to appeals from appellate decrees."
It is clear from the above provisions that it is competent for the appellate Court to dismiss the appeal without even issuing notice to the Respondent. (Order 41, Rule 11). If the Court does not so dismiss, it has to fix a day for hearing "the appeal". There is nothing in the rules to indicate that the Court is entitled to admitth appeal piece-meal. If however at the time of admission the Appellant abandons any one or more of the grounds taken in the memorandum and confines the appeal to some of the grounds alone, it may be open to the Court to make a record of that fact which may have the effect of limiting the scope of "the appeal", and the day to be fixed under Order 41, Rule 12, would be to hear the appeal as so limited and not as originally presented. In such a case there is no admission of the appeal in part. The question arose for the first time in the Calcutta High Court in -''Lakhi Narain v. Sri Ram Chandra'' 14 CLJ 146 (A), and it was held that it was beyond the competence of a Court of appeal to restrict an appeal to some of the grounds. This view was followed by the same Court in a later case in -''Janki Nath v. Prabasini Dassee'' AIR 1916 Cal 741 (B). The Patna High Court has taken the same view in - Rekha Thakur Vs. Ramnandan Rai and Another, In this case the learned Judges approved of the Court taking a note of an agreement by the Appellant to confine the appeal to some of the grounds, either because the other grounds are deliberately given up or because they are thought to be unfit to be urged before Court. A Full Bench of the Bombay High Court has also taken the same view in - Krishnaji Shrinivas Jalvadi Vs. Madhusa Appansa Ladaba (No. 2), but has introduced a modification in that an appeal which comprises of parts which are severable it can be admitted as regards one or more of the parts and dismissed as regards the rest. Such being possible in the decree in appeal it regarded as permissible even at the time of admission. This last view however is not accepted by the Madras High Court in - Vattipalle Eswariah Vs. Vattipalle Rameswarayya and Others, A Full Bench of that Court held that the Court had no jurisdiction to admit an appeal in part and dismiss it in part even if the appeal consists of distinct and severable parts. This conflict of view between the Madras and the Bombay High Courts does not fall to be, resolved in this case as the claim here is one and entire. Having been admitted to hearing, the appeal as presented including all the grounds taken would be open for argument even if at the time of admission it has been limited to a particular ground or grounds. In this case, the note made by the judge at the time of admission does not purport to limit nor has it the effect of limiting the scope of the appeal. The note made by the Judge has only the object and effect of serving as a record for future reference, and there has not been an admission of the appeal in part.
The principal amount of the mortgage which should be the valuation in a suit for redemption on which Court-fee should be paid having been thus fixed at Rs. 278-4-0 in excess of the amount shown in the plaint as the mortgage money, the Plaintiff should and is directed to, pay, the deficit Court-fee which he would have had to pay had he valued the suit as for that excess amount as well, when he filed it. A week''s time after the reopening of this Court is given to him to pay the deficit Court fee which may be paid in this Court. The Plaintiff will have a decree for redemption in the terms shown above on payment of the deficit Court fee.
The decree passed by the lower appellate Court is modified by enhancing the price of redemption as staled above. In other respects, the said decree is confirmed. The second appeal is allowed in part to the extent above indicated. In the peculiar circumstances of this case, I direct that the parties shall pay themselves their respective costs here and in both the Courts below.