Narayanan Namboodiri and others v. Velu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933** **SA.No. 860 of 1999(B)** - **----------------------------** **AS.113/1995 of ADDL. DISTRICT COURT, PARAVUR OS.306/1989 of MUNSIFF COURT, PARAVUR** **....................** ## **APPELLANT(S): APPELLANT/PLAINTIFF** **----------------------------------------------** - **1. NARAYANAN NAMBOODIRI. S/O. NARAYANAN NAMBOODIRI, KOZHIPPILLY ILLAM, EDAYAR KARA, KADUNGALLOOR VILLAGE (DIED. LR'S IMPLEADED)** - **ADDL. APPELLANTS TO 9 IMPLEADED** **2. NARAYANAN NAMBOODIRI, AGED 57, S/O.LATE NARAYAN NAMBOODIRI, NEELI NILAYAM, KULAYETHUKARA, KANJIRAMATTOM, ERNAKULAM DISTRICT** **3. KRISHNAN NAMBOODIRI, AGED 60, S/O. NARAYANAN NAMBOODIRI, SREEKRISHNA MANDIRAM, BINANIPURAM P.O., ERNAKULAM.** **4. SREEDHARAN NAMBOODIRI K.N., AGED 48, S/O. NARAYANAN NAMBOODIRI, SREESYLAM, BINANIPURAM P.O., EDAYAR, ERNAKULAM.** **5. REMANI K.N., AGED 44, W/O. NARAYANAN NAMBOODIRI, NELLIKATTUMANA SOUTH, KIZHAKOMBU P.O., KOOTHATTUKULAM.** **6. SUDHAMANI K.N., AGED 40, W/O. NARAYANAN NAMBOODIRI. NELLIKATTUMANA NORTH, KIZHAKOMBU P.O., KOOTHATTUKULAM.** **7. GANGADEVI K.N., AGED 38, W/O. KRISHNAN NAMBOODIRI, MATTAKKATTU MANA, SOUTH VAZHAKULAM P.O., ERNAKULAM DISTRICT.** **8. SATHEESH K.N., AGED 35, S/O. NARAYANAN NAMBOODIRI, KOZHIPPILLIMANA, BINANIPURAM P.O., EDAYAR, ERNAKULAM.** **..................2/-.....** **svs** **...2...** ## **S.A. NO.860/1999** **9. SREEDEVI K.S.,AGED 68, W/O. NARAYANAN NAMBOODIRI K.N., KOZHIPPILLIMANA, BINANIPURAM P.O., EDAYAR, ERNAKULAM.** *** ADDL. APPELLANTS 2 TO 9 ARE IMPLEADED AS LR'S OF THE DECEASED APPELLANT AS PER ORDER DATED 22/07/2003 ON I.A. NO.409/2003.** **BY ADVS. SRI.M.P.RAMNATH** **RESPONDENT(S): RESPONDENT/DEFENDANT** **----------------------------------------------------** **VELU, N/O. GOPALAN, MANACHERRY PARAMBIL, EDAYAR KARA, KADUNGALLOOR VILLAGE.** **ADV. SRI.P.R.VENKETESH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **P.BHAVADASAN, J.** ## **----------------------------** ## **S.A.No. 860 of 1999** ## **---------------------------------** ## **Dated this the 7[th ] day of June, 2011** ## **JUDGMENT** The plaintiff who was non-suited by both the courts below, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that Narayanan Namboothiri along with his paternal uncle, mortgaged the suit property by Ext.A6 document, which is the same under Ext.B6 document. One of the mortgagors Narayanan Namboothiri sued for redemption of mortgage. The suit was resisted on the ground that the suit is not maintainable without the co-mortgagor on the party array. A claim of tenancy was also set up by the defendant. 3. Suffice is to say that the question of tenancy was referred to the Land Tribunal. The claim of defendant was found against. That finding was returned to the trial court. The trial court, incorporating the finding of the Land Tribunal, held that the suit is not maintainable for violation of order XXXIV Rule 1 CPC. Accordingly, the suit was dismissed. **S.A.No. 860 of 1999 2** 4. The plaintiff carried the matter in appeal as A.S. No.113/1995 before the Additional Munsiff's Court, North Paravur and the defendant filed cross objection. The lower appellate court was of the view that the suit is defective from the very inception for being violative of Order XXXIV Rule 1 and accordingly dismissed both the appeal as well as the crossobjection and that brings the plaintiff before this court. 5. For resolution of the issue, it will be apposite to refer to the relevant provisions in the Transfer of Property Act. Section 60 of the Transfer of Property Act deals with the right of a mortgagor to redeem. It also provides that there cannot be a partial redemption at all. Section 82 of the Transfer of Property Act deals with contribution to mortgage debt. Section 91 of the Transfer of Property Act deals with persons who may sue for redemption. Section 92 deals with subrogation. Section 95 deals with the right of redeeming co-mortgagor to expenses. 6. There cannot be any dispute that the comortgagor can redeem the property but going by Section 60, there cannot a partial redemption. The question that arises for **S.A.No. 860 of 1999 3** consideration is whether it is absolutely essential that the comortgagor should be made party to the suit. The courts below have held in favour of the defendant. Order XXXIV Rule 1 reads as follows: ## **Parties to suits for foreclosure, sale and** **redemption** : Subject to the provisions of this code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. 7. As per Order XXXIV Rule 1 CPC, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. The question is whether an effective decree could be passed without the heirs of the other co-mortgagor. This aspect was considered in the decision reported in _**Govindan v. Kunjan**_ (1964 KLT 836). The relevant portion of the said judgment reads as follows: _“2. As I understand the judgment of the Subordinate Judge, his view seems to be. that without the heirs of the other co-mortgagor on record no decree for redemption could be passed. Under S.91_ **S.A.No. 860 of 1999 4** _of the Transfer of Property Act, a co-mortgagor is a person entitled to redeem the mortgage, but it is also prescribed by Order XXXIV, R.1, C. P. C. that all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. In this view, the other co-mortgagor also is a necessary party to the suit. But the question to determine is whether in his absence, a decree could not be granted to the co-mortgagor who sues for redemption. In this case learned counsel for the plaintiffs have also taken the point, that the objection as to non-joinder is not now open to the defendant, not having set up the objection at an early stage as laid down by Order I, R.9, C. P. C., his case being only that the plaintiffs have no right to redeem. However that be, it has been held in Bansidhar Pandey v. Masudan Singh (A. I. R.1962 Patna 191), that the true test for deciding the point is, whether the rights of the parties on the record can be fully determined in the absence of the other co-mortgagor and whether that determination can be made so as not to affect the rights of the absent party. Following an earlier decision of the same court in Mt. RajMt. Raj Mohni Debi v. Harihar Mahton (A. I. R.1958 Patna 67) it was held, that one of the fractional owners of the equity or redemption may sue to redeem the whole mortgage and the suit is not liable to be dismissed for non-joinder of the other comortgagors. In the present case, as the owner of the half share of the equity of redemption, the plaintiffs can be allowed to redeem the mortgage by payment to the defendant of whatever is found due to him on settlement of accounts. This will effectually dispose of the case as between the plaintiffs and the defendant and will in no way affect or prejudice the rights of the heirs of Chadayan Kunjan. So I think, this is a case in which the ratio of the decision cited may be applied.”_ ## **S.A.No. 860 of 1999 5** This decision has been followed in **V.O. Markose v. Commissioner of Income Tax, Kerala (1974 KLT 461), Thomy John v. Sivaraman Nair and others (1970 KLT 149) , Bhaskara Menon v. Madhava (1975 KLT 38) , Govindan v. Kunjan (1964 KLT 836), Gohd Singh and others v. Teja Singh and others (1965 Punjab 224), , Lekshmi Pillai others v, Chellappan Pillai and others (1966 (2) ILR Kerala 388) and N.R. Gopal v. Banumathi and others (2000 MLJ 107).** It has been held that though comortgagor may be a proper party. It is not as if an effective decree cannot be passed with the other co-mortgagor on the party array. Moreover, Sections 60 and 91 are substantive provisions while Order 34 rule 1 is procedural provisions. In the light of the above decisions, it is unnecessary to further probe into the matter as it is very evident that the decisions of the courts below cannot be sustained. 8. The lower appellate court has not considered the matter in the proper perspective and so, it has become necessary to remand the matter to the lower appellate court for proper **S.A.No. 860 of 1999 6** adjudication of the issue involved in the case and also as to whether the defendant is entitled to fixity of tenure. The lower appellate court shall dispose of the matter in accordance with law taking note of cross-objection filed by the respondent. The parties shall appear before the lower appellate court on 21.07.2011. The lower appellate court shall make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within a period of six months from the date of appearance of parties before it. ## **P.BHAVADASAN, JUDGE.** ln