THANKAMMA Vs. PUSHPAMMA ALIAS PUSHPA

JUDGEMENT

(1.) The question involved in this Writ Petition is whether a Defendant who is one of the legal representatives of the deceased Plaintiff can be transposed as the additional Plaintiff when there is dispute inter se the Defendants.

(2.) The suit was filed by the father of Defendants 1 and 2 claiming partition of his one-third share in the plaint schedule property, having an extent of three acres of land. Defendants 3 and 4 are the sons-in-law of the Plaintiff. The third Defendant is the husband of the second Defendant. The fourth Defendant is the husband of the first Defendant.

(3.) The Plaintiff contended that the possessory mortgage rights in respect of the plaint schedule property belonged to his wife and on her death, the property devolved on the Plaintiff and his two children, namely, Defendants 1 and 2. The original mortgage was in 1100 ME. The contention of the Plaintiff was that the right to redeem the mortgage was barred by limitation and, therefore, the mortgagee had the right to the property. The first Defendant contended that while the property was outstanding in the possession of her mother, the mortgagor had executed a gift deed in the year 1966 in favour of the first Defendant (writ Petitioner). Defendants 1 and 4 contended in their written statement that neither the Plaintiff nor Defendants 2 and 3 got possession of the property at any point of time. Therefore, the main question to be decided in the suit was whether the gift deed executed by the mortgagor in favour of the first Defendant would affect the right of the Plaintiff to get a share in the property covered by the gift deed.