LAXMINARAYANA UDPA Vs. PADMANABHA UDPA

JUDGEMENT

(1.) The appellant is the plaintiff and the respondents are defendants. The suit was filed for redemption of a usufructuary mortgage executed by Raya Udpa for himself and on behalf of his minor sons on 22-7-1918 under Ext.A2. One Shankar Udpa had four sons, namely, Venkatramana Udpa. Raya Udpa, Narayana Udpa and. Subraya Udpa. Venkataramna Udpa died in about the year 1912 without leaving a widow or issues. At the time of the usufructuary mortgage, the three brothers namely Raya Udpa, Narayana Udpa and Subraya Udpa, constituted the members of a coparcenary since their father had also been dead. Under Ext.A2, Raya Udpa mortgaged his undivided 1/3rd share in all the properties allotted to the branch of Shankar Udpa in favour of Narayana Udpa and Subraya Udpa. The plaintiff purchased the rights of equity of redemption from the son of the mortgagor. Raya Udpa, who is also named Shankar Udpa, under Ext.A1 dated 30-8-1949. He, therefore brought the suit for redemption of the mortgage under Ext. A2. Narayana Udpa and Subraya Udpa, the other two brothers who were the mortgagees of the 1/3rd undivided interest of Raya Udpa in turn usufructuarily mortgaged their 2/3rd undivided interest in all the joint family properties and also the mortgagees' interest which they obtained under Ext.A2, in favour of Anantha Aithala on the same day as Ext.A2 under the usufrrctuary mortgage deed Ext.B1. Thereafter, Subrava Udpa, the youngest brother sold his 1/3rd interest in all the properties to his brother Narayana Udpa on 9-1-1932 under a sale deed Ext.B4. On the same day i.e. on 9-1-1932 Naravana Udpa executed the usufructuary mortgage in favour of defendant No.2, Govinda Udpa, under Ext.B.12. This mortgage was of the 2/3rd muli right of Naravana Udpa and Subrava Udpa and the mortgagees' right under Ext.A2. Defendant No.2 redeemed the properties under Ext.Bl as evidenced by Ext. P3 dated 9-1-1932, Exs.B12, B3. and B4 are of the same date. Thus, on 9-1-1932 defendant No.2 became the usufructuary mortgagee of the properties of an the three brothers, namely, Rava Udpa. Naravana Udpa and Subraya Udpa. Naravana Udpa again executed Ext.B13 a fresh charge in favour of Govinda Udpa, the second defendant, for Rs.300. The first defendant purchased the right, title and interest of Naravana Udpa on 30-8-1949 under Ext.B19. Thereafter the first defendant filed OS. No. 691/1950 on the file of the District Munsiff of Coondapur for redemption of the properties from defendant No.2. Defendants Nos.2 to 5 in this suit are brothers and belonged to the same family. The second defendant had taken the mortgage acting as ejman of his family. OS. No.691/1950 was decreed. There was an appeal and the judgment of the appellate Court is marked as Ex.B6. Defendant No.1 took delivery of all the properties so redeemed under the delivery receipt Ext.B16 The second defendant filed a second appeal against Ext.B6 relating to S.No.166/1 and 166/3 of Koteswar village. The judgment of this Court in this appeal is marked as an exhibit in the lower appellate Court the certified copy of which is marked as Ext.B59. These two survey numbers were also included in the mortgage. In the meanwhile, Narayana Udpa and Anantha Aithala the mortgagees under Ex.B1 effected some alienations. Under Ex.B9 dated 28-11-1929, Narayana Udpa exchanged item Nos.10, 11 and 22 of the plaint schedule properties and some other properties in favour of the second defendant and obtained two items of properties belonging to the second defendant which are not the subject matter of the suit. Under Ext.26 Narayana Udpa and Anantha Aithala together granted mulgeni lease in favour of the second defendant in respect of the plaint schedule items Nos.13 and 26 on 14-2-1930. Under Ex.B25 Narayana Udpa and Anantha Aithala granted a mulgeni lease in favour of the predecessors-in-title of defendants Nos.7 and 8 in respect of the plaint schedule items 12 and 23 on 29-11-1929. Again, on 15-4-1930 under Ext.B29, Narayana Udpa and Anantha Aithala granted a mulgeni lease in favour of defendant No.6. The last alienation is Ext.B54 dated 10-9-1931 under which Narayana Udpa and Anantha Aithala granted a mulgeni lease in respect of the plaint schedule item Nos.29 and 30. Ext.B25 was in favour of the predecessors-in-interest of defendants No.7 and 8 and Ext.B54 was in favour of defendant No.6. The plaintiff has filed the suit for redemption and partition and possession of the 1/3rd interest of Raya Udpa and he has challenged the alienations as not binding upon him. The trial Court granted a decree for redemption and also for partition of 113rd share in the suit properties; but it held that these alienations are binding on the plaintiff. The plaintiff appealed and cross-objections were also filed on behalf of the defendants. The lower appellate Court partly allowed the cross-objections and held that survey No.166/1C is also included in the mortgage. It also confirmed the finding of the trial Court that item Nos.6, 10, 11, 13, 25, 22, 26, 29, and 30 are also included in the mortgage. But for this modification, the decree of the trial Court was confirmed.

(2.) The two mam questions for derision in this appeal are whether the alienations are binding on the plaintiff and whether the suit is in time as against the alienees since there is no appeal against the decree for redemption and partition granted in favour of the plaintiff.

(3.) The alienations are under Exs. B9, B26. B25, B29 and B54. ExB9 is the deed of exchange dated 29-11-1999 entered into by Naravana Udpa Ext.B25 dated 29-11-1929 is the deed of mulgeni lease executed by Narayana Udpa and Anantha Aithala. Ext.B26 is dated 14-2-1930 and is a mulgeni lease deed evecuted by Naravana Udpa and Anantha Aithala. Ext.B29 is dated 15-4-1930 and is p mulgeni lease deed executed bv Naravana Udpa and Anantha Aithala. Ext.B54 dated 10-9-1931 is also a mulgeni lease deed executed by Narayana Udpa and Anantha Aithala.