(1.) 4th defendant in OS.No.808 of 1957 on the file of the Addl. I Munsiff, Bangalore, is the appellant in this Appeal. That suit was instituted for redemption of the mortgage of the suit schedule property, for accounts and for other reliefs. The case of the plaintiff was that the property belonged originally to one Ramanna son of Dankanikote Naranappa. He died some time in the year 1905 leaving behind him his widow Sampamma. Sampamma died on 4-2-1919. The case of the plaintiff is that after the death of Sampamma, the property vested in the reversioners and the plaintiff having purchased the property bv a registered sale deed on 28-12-1955 for valuable consideration subject to the mortgage was entitled to claim redemption. It is also alleged that during the life time of Sampamma, she executed a registered deed of mortgage in favour of Munimuthappa, and defendant 1 being the son of Munimuthappa was liable to account. It is necessary to note that the plaintiff did not assail the validity of the mortgage. On the contrary, the validity of the mortgage was accepted and the suit was filed for redemption on that basis.
(2.) Defendant 1 raised several contentions. It was contended that after the mortgage was executed in favour of Munimuthappa, father of defendant 1 in 1910, on 20-9-1918, Sampamma sold the property to defendant 1 for Rs. 1,500, and therefore, defendant 1 has become the owner of the plaint schedule property and that he is in possession and enjoyment of the same in his own right since 20-9-1918. It was further alleged in paragraph 4 of the written statement of defendant 1 that the mortgage with possession has merged into the sale and the mortgage is no longer subsisting and the suit was not maintainable.
(3.) In the reply statement filed by the plaintiff, it was stated that Sampamma had not redeemed the mortgage and the sale of the property, if any, was fraudulent, collusive and nominal transaction and not supported by consideration. It was also stated that there was no legal necessary nor was there any benefit to the estate. It was therefore stated, that defendant I has not become the full owner by virtue of the alleged sale and so defendant 1 must be deemed to be in possession only as a mortgagee and plaintiff having purchased the equity of redemption was entitled to redeem.