Judgment

HIDAYATULLAH, J. This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an otti created by one Bhagavathi Parameswaran in favour of one Krishnan Marthandan on 5-5-1091 M. E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameswaran made a gift of the property to his wife Bhagavathi Valliyamma on 9-3-1103 M. E., by Exh. III. Bhagavathi Valli died on 4-11-1105 M. E. She had an only son Parameswaran Sivaraman who was married to Paravathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancorre in 1096 M. E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12-4-1123 M. E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the Court. The suit was valued at 3500 fanams (about Rs. 500/-) which was the amount of the otti and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter.

2. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameswaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh. III. He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum in O. S. No. 36 of 1100 M. E., and that in an auction-sale held on 3-4-1114 M. E., the jenmom rights were purchased by the decree-holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale-deed. He claimed to have thus obtained the jenmom rights as also the otti rights. The first respondent admitted that Sivaraman had left India in 1096 M. E., but denied the allegation that letters were received from him till 1100 M. E., or that till 1108 M. E., some information was being received about him. He asserted that right from 1096 M. E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M. E., or was not alive on 9-3-1103 M. E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Valli s death, her sister B. Narayani and Narayani s daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auction-sale in O. S. No. 36 of 1100 M. E., to the auction-purchaser. The first respondent, therefore, submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand as the auction-purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenakshi, full title resulted to him.

3. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law.

4. The two Courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367-13-4. An appe