GOPALA PAI GOVINDA PAI Vs. KAMALAVATHI BAI

JUDGEMENT

(1.) The appellant, who is the 2nd defendant, has filed this appeal, against findings rendered adversely to him by the courts below. Nevertheless a serious effort has been made by counsel to show how his client is entitled to resist the action for redemption of the mortgages covered by Exs. D3 and D4, based upon the agreement to transfer executed by the plaintiffs in his favour (Ex. D1) and possession obtained by him allegedly pursuant to the agreement.

(2.) Facts first and law next, plaintiffs are the owners of 35 cents of land, 15 cents out of which were mortgaged possessorily in 1119 under Ex. D-3 to the first defendant and 20cents a little later in the same year under Ex. D-4to the same person thus putting the first defendant in possession of the entire 35 cents of land the mortgage amount being Rs. 325/- and Rs. 450/- respectively. 11 is also disclosed that as per Ex. D-5, a deceased son of 1st plaintiff (the other plaintiffs are the other children of the first plaintiff) had executed in favour of the 1st defendant a simple mortgage over the plaint schedule property for Rs. 500/- in 1123 Thereafter the plaintiffs entered into an agreement to transfer 15 cents of land to the 2nd defendant for a

(3.) Sometime later, finding the transaction of sale not going through the plaintiffs caused a lawyer notice to be sent to the 2nd defendant, Ex. D-2 demanding fulfilment of the agreement. (Ex. D-1 had directed the 2nd defendant to take the follow-up action for the completion of the sale, such as the drafting of the sale deed etc.). The 2nd defendant apparently ignored that notice and continued in possession till at last the present suit was brought in 1964 for redemption of the two mortgages Ex. D-3 and D-4 (although Ex. D-5 simple mortgage also subsists in favour of the first defendant, that was not sought to be redeemed in the suit) and then he raised the defence of immunity from dispossession under S.53(A) of the Transfer of Property Act.