YASHODARAIAH Vs. S B PAYIDEVARU

JUDGEMENT

(1.) THIS appeal by the LRs. , of the defendant is directed against the judgment and decree passed by the Civil Judge (Sr. Dn.), Mandya in RA. No. 29/1997 dated 8-7-2002 allowing the appeal and reversing the judgment and decree passed by the court of II Addl. Munsiff, Mandya, in O. S. No. 637/92 dated 4-1-1997 and consequently decreeing the suit for redemption of mortgage and to deliver vacant possession of the suit schedule property to the plaintiffs.

(2.) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial Court are as follows : the plaintiffs filed the suit for redemption of mortgage and for delivery of possession of the schedule property from the defendant.

(3.) IT is averred in the plaint that the suit schedule property originally belonged to late sri Anantharajaiah. He died on 8-4-1955. Anantharajaiah had mortgaged the suit schedule property to B. P. Nagarajaiah under a registered mortgage deed dated 10-10-1938. Again Anantharajaiah mortgaged the same property under registered usufructuary mortgage deed dated 8-3-1943 and in the said deed there is a specific recitals that only right to recover the mortgage money, tax if any paid and money spend on repairs should be recovered except mortgage rights no other in excess of the mortgage right is transferred. Anantharajaiah died leaving behind his wife Gunavathamma and minor son Padmaraja who died on 3-11-1966, he was unmarried. The mother Gunavathamma also died in the year 1979. At that time original mortgagor died old Limitation act Article 148 prescribing the period of 60 years for redemption was in force and it was subsisting on the date of original mortgage. In view of the provisions of Sections 14 and 15 of the Hindu Succession Act (for short 'the act') since she died after the Act came into force, the property would devolve on the heirs of her husband and present plaintiffs are the husband's brother's sons. At that time Smt. Gunava-thamma died and the new limitation Act came into force and period of limitation is 30 years and since right to redeem was not extinguished and no such right was conveyed in the said deed and defendant did not file any suit for foreclosure, the suit is filed for redemption of the mortgage and for delivery of possession.