C BEEPATHLIMA Vs. VELASURI SHANKARANARAYANA KADAMBOLITHAYA

JUDGEMENT

(1.) This is an appeal by certificate granted by the High court of Madras against its common judgment and decree dated November 3, 1955 in A. S. Nos. 88 and 138 of 1947. The appellants are 7 of the original 139 defendants and the respondents are the two plaintiffs and the original defendant No.1. The appeal arises from a suit for redemption of a usufructuary mortgage dated April 26, 1862 and for delivery of possession of properties described in Schs. A and B of the plaint together with mesne profits from the date of redemption till delivery of possession, the mortgaged property had passed into the hands of several persons and this is why so many defendants were joined, life shall now give the facts which go back for an incredibly long period.

(2.) The plaint incorporates three schedules distinguished as A, B and C Schedules and they describe properties which belonged to the Alyasantana family of the second respondent. On April 14, 1842, one Madana, who was then the Ejaman of the family,usufructuarily mortgaged the A, B and C Schedule properties in favour of one Kunhanmmu Hajar for 1250 varahas or pagodas (equal to Rs. 5,000/-) under Ex. P-1- This deed did not contain any provision for repayment of the amount or for the usufructuary mortgage to be worked off. It contained a clause to the following effect:

(3.) In 1857, the family of the mortgagees effected a partition by registered documents which are marked collectively as Ex. P-6 series. This partition was not by metes and bounds or by the allotment of whole fields but a division of lands with reference to the fraction of the beriz payable. We are concerned in this appeal only with the share which went to Kunhammu Hajar whose share was 1/4. In Ex.P-6 which is the partition deed concerning him, his share was described as follows: