RUKMINI Vs. INDIRAMMAL

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S. 209 of 1991 on the file of the then Munsiff at Mandya is before this Court in this second appeal questioning the legality and correctness of the concurrent judgments of the Courts below dismissing her suit filed for redemption of the mortgage and re-delivery of the mortgaged property to her.

(2.) The appellant was the sole plaintiff and the 1st respondent was the sole defendant in the trial Court. The plaintiff filed the suit for judgment and decree directing the defendant to redeem the mortgaged property by receiving the mortgage amount and to deliver the original Mortgage Deed with discharge shara (sic) thereon and also to deliver vacant possession of the schedule property to her and for an enquiry under Order 20, Rule 12, CPC regarding future mesne profits from the date of suit till the date of delivery of possession. The subject-matter of the suit is an outhouse situated at Jains Colony, Mandya City bearing Municipal Khatha No. 4719/1428 site measuring East-West: 28-1/4 feet and North- South: 40 ft. 2" with Mangalore tiled roof.

(3.) The case of the plaintiff in brief is as under: The schedule property originally belonged to one Sri. MA. Bahubali Raju. He mortgaged the said property in favour of Defendant vide Mortgage Deed dated 6-2-1983 for a sum of Rs. 20,000/- and delivered possession of the mortgaged property to the Mortgagee (Defendant) and she was permitted to enjoy the mortgaged property in lieu of the interest payable on the principal amount. The time for re-payment of the mortgage amount fixed as eight years came to an end on 06.02.1991. The said Bahubali Raju sold the schedule property in favour of the plaintiff under the Registered Sale Deed dated 19.11.1984 subject to the mortgage created in favour of the defendant. Thus, the plaintiff became the absolute owner of the property and also acquired the right of equity of redemption and was entitled to redeem the mortgage after expiry of period fixed under the Mortgage Deed. After the expiry of the time fixed under the Mortgage Deed, the plaintiff issued a notice to the defendant on 24-1-1991 calling upon her to receive the Mortgage amount and to redeem the mortgage and also to redeliver possession of the mortgaged property. Though the said notice was served on the defendant, the defendant instead of complying with the said notice, gave an untenable reply contending that she has spent huge money for repairs and that she should be paid the said amount along with mortgage money. In the reply notice, the mortgagee alleged that the sons of said Bahubali Raju have filed a suit in O.S. 239/89 for declaration of their title and therefore the mortgage cannot be redeemed. With these allegations, the plaintiff sought for the aforesaid reliefs.