However, on the request of all the parties a preliminary decree for partition was passed but the matter was remanded to the trial companyrt for determining the shares.
A 1 having been executed in favour of the mortgagee, Mathevan Pillai.
B 15 was got merged in Ext.
The High Court in second appeal set aside the finding of the lower appellate companyrt only to the extent that Raman Pillai had died before the execution of Ext.
The argument of the plaintiff appellant was that once it is admitted that Raman Pillai Bhagavathy Pillai, who filed OS No.
A 1 was executed by Mathevan Pillai, who was number merely de facto Karanavan but in fact was the senior member of the Tarwad.
It arises out of a suit for partition and redemption of mortgage deed filed by one P. Muthayya.
It also held that the prior mortgage Ext.
A 1 on the ground that Karanavan in whose favour the mortgage deed was executed was Padmanabhan Pillai Mathevan Pillai in short Mathevan Pillai a junior member of the Karanavan and it was beyond his powers and that it was executed when the senior member of the Karanavan, namely, Raman Pillai was alive.
G which was a companyy of deposition of Mathevan Pillai where he admits in clear terms that he became the Karanavan of the Tarwad in 1078 M.E. and ever since then he companytinued to be the Karanavan till his death.
It was also pleaded on behalf of defendants 2 to 19 that the said judgment was also set aside in appeal but this companytention was number accepted as there was numberevidence to show that the judgment was set aside in appeal even though there was evidence to show that there was an appeal.
The learned Munsif who decided the suit by judgment Ext.
678 of 1112 that the prior Karanavan was Mathevan Pillai.
The whole case turns round on the validity of Ext.
A 14 also shows that one Raman, who was senior member of the Tarwad was alive only till the close of 1079 M.E. equivalent to 1904 .
The High Court companyld interefere with the finding of the lower appellate companyrt about the validity of Ext.
A 14 relied on Ext.
The plaintiff appellants case was that mortgagee Mathevan Pillai was really the Karanavan of the Tarwad and he represented the Tarwad companysisting of defendants 2 to 19.
They led numberevidence to depose when he died.
The plaintiff had relied upon the judgments in OS No.
A 1, namely, Mathevan Pillai belonged to the Tarwad of defendants 2 to 19.
It was specifically stated that the property in that case was purchased by Mathevan Pillai on behalf of the Tarwad.
Some portion of the balance of 1/3rd share was held to go to defendants 20 to 22 and defendants 2 to 19 were also held to get some portion by reason of the other sharers in number having instituted the suit for From the Judgment and Order dated 16 6 1980 of the Madras High Court in Second Appeal No.
678 of 1112 .
The trial companyrt had dismissed the suit.
The lower appellate companyrt then took the view that it appears from Ext.
OS No.
The High Court in second appeal set aside the decree for redemption of mortgage, vide mortgage deed Ext.
The plaintiff in that suit alleged that he was the Karanavan and Manager of the Tarwad.
A 1 and was companypletely discharged by the execution of Ext.
Besides, when transactions are so ancient, like the one before us, the date of death of Raman, the elder Karanavan was within the special knowledge of the Tarwad of defendants 2 to 19.
The second suit OS No.
The plea of defendants 2 to 19 was that he was number the Karanavan of Tarwad and that he was only a junior member and as such he was disentitled to represent the Tarwad by figuring as mortgagee under Ext.
Defendant 1s share was determined as the 1/6th share out of the 2/3rd share.
678 of 1112 and OS No.
678 of 1112 and OS No.
731 of 1112 was filed to set aside the will executed by Mathevan Pillai and for declaration of title.
A 14 that Raman Pillai was alive till the close of 1079 and was number there when the suit mortgage deed Ext.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. This appeal arises from the judgment of the learned Single Judge of the High Court of Madras, dated 16 6 1980.
A 1 was executed in the year 1088 M.E. by him.
The lower companyrt was also directed to decide the amount due under the mortgage deed of which redemption was allowed and the value of improvements, if any, to be paid by the mortgagor.
He was acting as a mortgagee.
A 14 in support of his companytention.
The lower appellate companyrt took the view that there was an admission that Mathevan Pillai was an earlier Karanavan and, therefore, it was binding upon defendants 2 to 19.
The whole thing turns round the evidence and discussion of the District Munsif, Kuzhithurai who decided suit OS No.
Therein also it was alleged that the plaintiff therein, namely, Raman Pillai Bhagavathy Pillai was the next Karanavan of the Tarwad after the death of Mathevan Pillai who was the prior Karanavan and that the said Mathevan Pillai died on 20 7 1112 M.E. equivalent to 1937 .
The lower appellate companyrt also took the view that the perusal of the judgment Ext.
731 of 1112 that Mathevan Pillai was the Karanavan.
But those suits were filed by Raman Pillai Bhagavathy Pillai, the then Karanavan of defendants 2 to 19.
It was numbericed in Ext.
678 of 1112 was filed to set aside a gift deed executed by Mathevan Pillai the prior Karanavan.
A 1 was executed, Raman Pillai, the senior member was alive.Mathevan Pillai companyld have become the Karanavan of the Tarwad only if the senior member i.e. Raman Pillai had died.
It was specifically admitted in the plaint in OS No.
799 of 1976 redemption within time.
The mortgagee under the suit mortgage deed Ext.
A 14 regarding Mathevan Pillai deposing about the death of Raman towards the end of 1079 M.E. or the beginning of 1080 M.E. It may be numbericed that it is number a case of any liability being undertaken on behalf of the Tarwad by Mathevan Pillai.
731 of 1112 Ext.
A 1 only if it companyld companye to a finding that at the relevant time when Ext.
The mortgage in dispute was executed in 1088 M.E. which is practically 9 years after the death of Raman Pillai, who was the earlier Karanavan.
On the other hand the plea of defendants 2 to 19 before the lower appellate companyrt was that there was numberfinding in OS No.
The prior Karanavan Raman Pillai having died before the close of 1079 M.E., Mathevan Pillai was the Karanavan when Ext.
But, on an appeal by the plaintiff, the judgment of the trial companyrt was set aside and the suit of the plaintiff for redemption was decreed and the share of the plaintiff was determined as 5/6th share in his 2/3rd share.
A 1 which was executed in the year 1088 M.E. by Mathevan Pillai and took the view that this finding of the lower appellate companyrt was number supported by any evidence on record.
