P. MUTHAYYA (DEAD) BY LRS. versus CHELLAPPAN PILLAI AND ORS.

Citation: [1994] SUPP. 1 S.C.R. 120 · Decided: 13-05-1994 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
P. MUTHAYYA (DEAD) BY L.RS. 
v. 
CHELLAPPAN PILLAI AND ORS. 
MAY13, 1994 
(KULDIP SINGH AND YOGESHW AR DAY AL, JJ .] 
\ 
Hindu Law : Tarward (H.U.F.}--Karanavan (Kartha)-Mortgage 
deed--Exe~ution of-Senior Member of Tarward-Claimed to have died prior 
to the mortgage deed-No evidence adduced to the contrary-Held: Mortgage 
C deed executed by Junior member as Karanavan valid. 
A suit for partition and redemption of mortgage deed filed by M 
came to be dismissed. But it was set aside on appeal and his share was 
determined as S/6th share in his 2/3 share. The share of defendant No.1 
was determined as l/6th share out of the 2/3rd share. The other defendants 
D were also to get some portion of the shares. The appellate court passed a 
preliminary decree for partition and remanded the matter to the trial 
court for determining the shares, and for deciding the amount due under 
the mortgage deed of which redemption was allowed and the value of 
Improvements, if an~, to be paid by the mortgagor. 
E 
On appeal, the High Court set aside the redemption of mortgage on 
the ground that the Karanavan In whose favour the mortgage deed was 
executed was junior member when the senior member of the Karanavan 
was alive and lt·was beyond his powers. 
F 
The present appeal has been filed against the High Court's order. 
I' 
Allowing the appeal, this Court 
HELD : 1.1. It is not a case of any liability being undertaken on 
behalf of the Tarward by M. He was acting as a mortgagee. Besides, when 
G transactions are so ancient, the date of death of R. the elder Karanavan 
was within the special knowledge of the Tarward of defendants 2 to 19. 
They led no evidence to depose as to when he died. It will be too much to 
place something in special knowledge of defendants 2 to 19 to be proved 
by the plaintiff to a successor-in-interest of the mortgagee. It is clear from 
H the recapitulation of M's statement referred to as Ext. 'G' before the Court 
120 
P.MUTHAYYA v. C.PJLLAI[DAYAL,J.] 
121 
/ 
which decided the suit (O.S. No. 731 of 1112) that R died in 1079 M.E. or A 
begl,nning of 1089 M.E. [124·D·E·F] 
1.2. It is true that the district Munsif who decided the said suit 
discussed the question of "defacto" or 'de jure" Karanavan but that judg· 
ment was not appealed from. This was the litigation which was started by 
the predecessors of defendants 2 to 19 and it was their evidence which the B 
District Muns if was discussing and was relied upon by the lower appellate 
court. It cannot be said, in the circumstances, that the evidence by way of 
Ext. A.14 was no evidence at all about the death of R. the elder brother, 
towards the close of 1079 M.E. (equivalent to 1904). The mortgage in 
dispute was executed in 1088 M.E. which is practically 9 years after the C 
death of R, the earlier Karanavan. [124-F ·G·H) 
2. The High court could interfere with the finding of the lower 
appellate court about the validity or the mortgage deed Ext. A.1 only If It 
could come to a finding that at the relevant time when Ext. Al was 
executed, R was alive. No 5"ch evidence had been led on behalf of defen· D 
dants 2 to 19 and thus the High Court erred in law in setting aside the 
finding of fact recorded by the lower appellate court relying on Ext.A.14. 
[12S·A·B) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 583 of 
1981. 
E 
From the Judgment and Order dated 16.6.80 of the Madras High 
Court in Second Appeal No. 799 of 1976. 
M.N. Krishnamani and K.V. Mohan for the Appellant. 
K. Sukumaran, Ms. Baby Krishnan and K. Prabhakaran for the 
Respondent Nos. 3-5 & 6-8. 
T.P. Sunderjain for the Respondent No.l. 
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 16th June, 
1980. it arises out of a suit for partition and redemption of mortgage deed 
·filed by one P. Muthayya. The trial Court had dismissed the suit. But, on 
F 
G 
an appeal by the plaintiff, the judgment of the trial couri was set aside the H 
122 
SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R. 
A 
suit of the plaintiff for redemption was decreed and the share of the 
plaiptiff was determined as 5/6th share in his 2/3rd share. Defendant No . 
.. 1 share was determined as the 1/6th share out of the 2/3rd share. Some 
portion of the balance of l/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 
B the other' sharers
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