The Judgment of the Court was delivered by
Subramania Iyer, J.:— One Aliyattu Vila family gave a possessory mortgage of the properties scheduled to the plaint in the year 1088. There were several transactions with the mortgage right by way of sub-mortgage and assignment, details whereof are unnecessary for the case. The rights of the sub-mortgagee as also those of the mortgagees became ultimately vested in defendants 1 and 2. The mortgager assigned the equity of redemption in favour of Lekshmi Amma the plaintiff's maternal grandmother in the year 1103, receiving Rs. 89/- in cash and reserving the rest of the consideration for redemption of the aforesaid mortgage and for payment of certain other debts of the vendor. The sub-mortgage provided for payment of the land revenue by the sub-mortgagee from the date of the sub-mortgage. The sub-mortgage also provided for payment by the sub-mortgagee of the revenue that was then in arrears. An amount Sufficient in that behalf was also reserved with the sub-mortgagee. On account of the default of the sub-mortgagee in the matter of payment of the land revenue, there was a sale under the Revenue Recovery Act in the year 1113, that is two years after the death of Lekshmi Amma. The notices preceding the sale including the notice of demand essential for its validity, was issued in the name of Lekshmi Amma, notwithstanding her death. By transfer, the rights of the purchaser under the revenue sale also became vested in defendants 1 and 2.
2. The suit was for redemption of the mortgage of the year 1088 and was brought by one of the grand-sons of Lekshmi Amma alleging that the equity of redemption is Lekshmi Amina's thavazhi property the purchase having been made in her name while she was in management of the thavazhi properties and with thavazhi funds. Defendants 3 to 15 are the members of the thavazhi of whom defendant 3 is the plaintiff's mother who is the only issue of Lekshmi Amma, the other member of the thavazhi being her children and grandchildren. Defendants 1 and 2 contended ‘inter alia’ that the equity of redemption purchased by Lekshmi Amma was her own property as the consideration therefor was supplied by her husband and not thavazhi property as claimed on behalf of the plaintiff, that on Lekshmi Amma's death defendant 3 became solely entitled to the equity of redemption and that she has assigned her rights to defendants 1 and 2. Defendants 3 to 15 support the plaintiff.
3. The Court below after an elaborate trial, decided that the equity of redemption purchased by Lekshmi Amma was her thavazhi property and entered judgment in favour of the plaintiff. Defendant 1 appeals.
4. The main question urged before us concerns the title to the equity of redemption, whether it is the self-acquired property of Lekshmi Amma or whether it is her thavazhi property. The point stressed by learned counsel for the appellant is that the onus of proof is on the plaintiff and that he has not discharged that burden. It is contended that the means of the thavazhi were not such as to leave a surplus from out of which the acquisition in question could have been made. Reliance is placed upon the Udampadi in the sub-tarwad of the year 1091 under which Lekshmi Amma, as the ‘Karnava Sthree’ of the thavazhi obtained paddy fields and parambas yielding an annual income of 140 paras of paddy and Rs. 50/-. It is urged that there were on that date, herself, her daughter and four grand-children. The aforesaid income would have hardly sufficed even for their maintenance not to speak of any surplus to be saved. Reliance is also placed upon the fact that in the year 1081 Lekshmi Amma's husband gave a possessory mortgage of his property in her favour and the title itself was transferred to her subsequently. This was her separate property, the income therefrom though only between Rs. 10 and Rs. 50 per year was available to her.
5. It is urged on behalf of the appellant that having regard to the customs and manners prevailing in Marumakkathayam tarwads, it must be presumed that the members were maintained out of thavazhi funds and that whatever income was available from the properties owned by individual members would be conserved for their exclusive benefit and would not be Spent in the family.
6. It is also contended that though at the time of the Udampadi in the year 1091 Lekshmi Amma was the ‘Karnava Sthree’ there having been no adult male member in the thavazhi, defendant 5 her grand-son attained majority a few years before the purchase of the equity of redemption in question and it must be presumed that the Karnavan would have assumed management and if so, Lekshmi Amma, though the eldest in age, was in law only a junior member unconnected with the management of the affairs of the thavazhi and that acquisitions in her name should be presumed to be her own.
7. The case was tried, the evidence heard and judgment delivered by an experienced District Judge. We are therefore inclined to attach weight to the opinion formed upon the facts and probabilities of the case by that learned Judge. There was a volume of oral evidence adduced on behalf of the plaintiff at the trial. Narayana Pillai, a brother of Lekshmi Amma and a party to the Udampadi, the plaintiff his mother, and the husband of Lekshmi Amma were examined besides certain other witnesses. Defendant 1 is the son of Narayana Pillai's brother, who was also a party to the Udampadi. Narayana Pillai gave evidence to the effect that Lekshmi Amma had no other source of income except her thavazhi properties which were in her possession and management.
8. There was, no doubt, he said the property given to her by her husband but that yielded only an annual income of less than Rs. 50 which, he suggested, would have been spent for its improvement. This witness was not cross-examined at all. Indeed learned counsel for the appellant admitted before us as he had to, that the testimony given by this witness can be taken at its face value. There was also evidence afforded by the testimony of the plaintiff's mother that herself and her children were living in her husband's house who was maintaining them till the year 1104, that is till the year next after the acquisition in question. Lekshmi Amma's husband swore to the effect that she was in management of the thavazhi properties throughout.
9. Upon the evidence tendered before him which was believed by the learned Judge, the conclusion reached was that Lekshmi Amma was in management of the thavazhi affairs even after her grand-son defendant 5 attained majority, that is, became eligible to assume the management as karnavan if he cared to do so. The learned Judge was of the view that there was sufficient funds of the thavazhi under the control of Lekshmi Amma from out of which the acquisition could have been made. The amount necessary for the acquisition was only the paltry sum of Rs. 89/- which was the cash paid at the time the document was taken. All the rest was reserved to be paid in the future and the bulk of it was the amount reserved for redeeming the prior mortgage for which the present Suit is brought. The purchase was early in Kumbhom 1103. As the net income from the paddy fields which appear to have been under the direct cultivation of the thavazhi is stated to be 140 paras of paddy, the gross yield would be much more and as the harvest would be not later than Makarom, that is the month preceding the acquisition, part of the funds available with Lekshmi Amma out of one harvest would have been ample to acquire the equity of redemption in question.
10. The definite plea raised by defendants 1 and 2 in the written statement is that the money for the purchase was supplied by Lekshmi, Amma's husband. The two versions that the Court had to consider was the one set up by the plaintiff as regards the purchase by Lekshmi Amma with the funds of the thavazhi, and the other set up by defendants 1 and 2 as regards the purchase being made by the funds supplied by her husband. The point urged before us on behalf of the appellant that the purchase was or should be deemed to have been made from out of the income of immovable property which Lekshmi Amma owned already is thus ruled out by the pleadings filed by the parties.
11. It is no doubt competent for a Court to decide a case and adjust the rights of the parties according to the truth which clearly emerges out of the evidence in the case though that may not be strictly in accordance with the case set by either of the parties. Such cases would however be rare and the jurisdiction of the Court should be exercised in exceptional cases, very cautiously and without occasioning embarrassment or prejudice to any of the parties. In this case however except the submission urged as above, there is nothing to support the suggestion made that the income of Lekshmi Amma's own immovable property was used for the purchase. As already stated, the evidence is even the other way as it indicates the utilisation of the Said income in the property itself for its improvement.
12. The above being the result of the evidence, the decision of the case has not to be based on any presumption. Learned counsel for the appellant having stressed and relied upon presumption, it behaves us to refer to and deal with his contentions.
13. It was first contended that there is the presumption that Lekshmi Amma's grandson assumed management of the affairs of the thavazhi when he became competent to do so. We are not aware of there being any such presumption. On the other hand, we consider that the presumption would rather be in favour of the continuance of Lekshmi Amma's possession and management of the thavazhi properties which she had for some years. The inception of her management was not on account of any ill-feeling between herself and the members of the sub-tarwad who were none other than three male members related to her either as direct brothers or as cousins. The Udampadi would indicate that the arrangement thereunder which was preceded by another Udampadi three years earlier, was meant for the betterment of the members and was not one occasioned by any differences between them. In the year next after the Udampadi, all the members joined in executing a deed to secure the future instalments payable in a chitty subscribed in the name of Lekshmi Amma. Lekshmi Amma's was the only branch with female members. Her competency to manage perhaps better than the male members would appear to be the reason for the Udampadi.
14. The members of the sub-tarwad would appear to have been living in the tarwad house notwithstanding the Udampadi, Lekshmi Amma's daughter being away with her husband in his house. There is no whisper anywhere that there was any complaint made against Lekshmi Amma's management. Lekshmi Amma's only issue, as already stated, was her daughter defendant 3 who has children and grand-children. Lekshmi Amma's affection was centered round her daughter and her issues, one of whom was her grand-son who was the person to have assumed management of the thavazhi affairs as karnavan on attainment of majority. Under the circumstances the likelihood is that Lekshmi Amma would have continued in management assisted by the members of the thavazhi and no one would have thought of ousting her from management.
15. Another presumption that the learned counsel for the appellant contended there was in the case was that the maintenance of the members of the thavazhi would have been from out of the income of the thavazhi and not out of the separate income of any individual member. It may be that when there is a conflict of interests between the members of a thavazhi and the question arises as to whether the maintenance of the members was from out of the income from thavazhi properties or income from the self-acquired properties of any member or members, the thavazhi may be presumed to have met its liability from out of its assets. In the present case there is no conflict of interests. Lekshmi Amma would have thought it her duty to maintain her daughter and her children even if there was no asset of the thavazhi available therefor. It will not be natural to suppose that Lekshmi Amma would have kept the income from the thavazhi properties in a separate chest and exhausted it before touching the income from her own property which consists of the property given to her by her husband. On the facts of this case, there is no scope for applying any presumption in this regard.
16. Learned counsel for the appellant urged that the conduct of the parties in this case has an important bearing upon the ownership of the equity of redemption in question. Three years after Lekshmi Amma's death there was a partition among the members of her thavazhi of properties obtained by them on partition from the main tarwad in the year 1104, that is, the year after the purchase of the equity of redemption. This property that is the equity of redemption is not dealt with therein as it should have been had it been thavazhi property. This fact is relied upon as a circumstance in favour of Lekshmi Amma's exclusive ownership.
17. No doubt this is a circumstance ‘prima facie’ in favour of the appellant. There are however indications afforded by the document itself as also other facts militating against the inference Sought to be drawn from the non-inclusion of this property in the partition. The document states that properties standing in the name of Lekshmi Amma and another member of the thavazhi are not dealt with at the partition because they are the separate properties of the persons in whose name they stand. Mention having been made of one kind of separate property not divisible between the members of the thavazhi, one would naturally expect the inclusion of another item of the said property if that had been separate, standing in the name of Lekshmi Amma who came up for reference as a person holding self-acquired property with another. Further the property in the equity of redemption was an abstract right as possession of the properties was with the mortgagee. Again even the title to this abstract right had been sold in the year before the date of the partition under the Revenue Recovery Act for default in payment of revenue by the sub-mortgagee who was charged with that obligation. Until the sale was got set aside, there was no property to be dealt with at the partition. Under these circumstances, the non-inclusion of the equity of redemption in the deed of partition cannot be regarded as a point leading to an inference as regards Lekshmi Amma's exclusive title to it.
18. Learned counsel for the appellant also contended that the conduct of defendant 3 in applying for setting aside the revenue sale would show that her mother was the sole owner of the rights sold. The application presented by defendant 3 is not before Court. The appellant has produced the order setting aside the sale which no doubt discloses that a claim was made by defendant 3 as the sole heir of her mother. In the absence of the application made by defendant 3 and in the absence of defendant 3 being confronted with her admission while she was in the witness box, it is not possible to attach any importance or significance to the claim alleged to have been made by her which is an admission in her own favour and as such not of value as against the other members of the thavazhi.
19. The next point urged on behalf of the appellant is that even if the equity of redemption be regarded as thavazhi property, defendant 3 having assigned her interests in favour of the appellant, the assignee has become a co-owner against whom a claim for redemption cannot be maintained. In the first place Ex. II the document relied upon as constituting an assignment of her rights by defendant 3 in favour of the appellant does not purport to be a conveyance of any right. It was executed pending her application to set aside the revenue sale, the rights of the purchaser whereat had become vested in the executee. Defendant 3 says in Ex. II that she withdraws her application to set aside the sale for a consideration stated to have been received and as a consequence of such withdrawal, the document proceeds to say, whatever rights she may have the property stood vested in the executee. Consistent with Ex. II defendant 3 did not appear at the hearing of her application which was, as it ought to be, allowed notwithstanding her absence because, as already stated, the requisite notices preceding the sale were addressed to a dead person. Without a proper notice, there could be no sale and there having been no notice at all in this case, the authorities had per force to set the sale aside.
20. Even if Ex. II be regarded as a deed of conveyance, defendant 3 had no separate interests on its date to be conveyed. The property being thavazhi, her interests therein were joint with those of the other members and according to the law applicable to the parties, until a severance of interests is created as between the members, no one has an alienable interest in thavazhi properties. Ex. II therefore cannot operate on any of the 3rd defendant's interest in the equity of redemption even if it purports to do so.
21. The revenue sale having been set aside cannot be and has not been held up as a defence to this action for redemption. The appellant would not have been competent to resist this action for redemption even if the revenue sale had stood and had not been set aside. From the facts it is clear that the rights of the sub-mortgagee on account of whose default the revenue sale was occasioned, became vested in the appellant and defendant 2 in whom also became vested the rights of the purchaser at the revenue sale. A purchaser at a sale under the Revenue Recovery Act for arrears of land revenue gets the property free from all encumbrances because the land revenue is the first and paramount liability on the property. If however the rights of such, a purchaser become vested in another person whose default occasioned the sale, then the immunity from obligations that the property would have enjoyed, had it remained with the stranger purchaser, would cease and the obligations would again attach to the property when it comes back to the defaulter.
22. This view has been taken by the Madras High Court in — ‘Sanagapalli Lakshmayya v. Intoory Bolla Reddy’, 26 Mad 385 (A). In that case question arose as to the liability of the property to be sold in enforcement of a mortgage after it came back to the mortgagor defaulting payment and purchased by a stranger. The principle of the Madras decision applies equally to this case though the obligation sought to be enforced relates to redemption and not dip sale. The principle is that a man cannot me allowed to take advantage of his own wrong. This principle was applied by the Privy Council (o a case of redemption in — ‘Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan’, 10 Moo Ind App 540 at p. 557 (PC) (B) which was followed in the Madras case.
23. The next point urged by the learned counsel for the appellant is that the appellant is entitled to get value of improvements. No claim in this behalf was made in his written statement nor was any issue joined in the Court below. There is no reason alleged for the omission. We are not inclined to permit the appellant to raise such a claim for the 1st time in this Court. Another point urged on behalf of the appellant is that whereas the mesne profit claimed in the plaint is only Rs. 150/- per year, the award of the Court below under issue 12 is at the rate of Rs. 206-3-8 which cannot be sustained. This contention is right and has to be accepted. The Court below should not have granted the relief in excess of the claim. The right of the plaintiff to get mesne profits would therefore be at the rate of Rs. 150/- per year instead of Rs. 206-3-8 as decided by the Court below.
24. The result is that the appeal fails and is dismissed with costs subject to the modification made above reducing the mesne profits allowed by the Court below to Rs. 150/- per year which is the claim made in the plaint.
B/H.G.P
25. Order accordingly.