SEETHAMMA Vs. KAMALA

JUDGEMENT

(1.) THE appellants are the defendants in a suit for recovery of amounts due under an anomalous mortgage (Vaide Illidarwar) dated 27-7-1919 by sale of the properties described in the A schedule to the plaint.

(2.) THE properties originally belonged to one Narayana kunikullaya, governed by the Hindu Mithakshara law. He died leaving his widow, kaveri Amma, and two daughters, Seetharama and Gouramma, who are defendants 1 and 2 in the suit. THE first defendant while yet a minor was married to one sankaranarayana Analathaya (now deceased ). THE fourth defendant is the son of the first defendant and Sankaranarayana Analathya. THE third defendant is the husband of the second defendant and the fifth defendant is their son. On 27-7-191 9 , Kaveri Amma for herself and as guardian of her minor daughter the second defendant and Sankaranarayana analathya as the guardian of his wife, the first defendant, executed Ext. Al mortgage in favour of one Ramayya. As per the terms of the mortgage, the mortgagee was to pay amounts periodically at a stipulated rate to one Parvathi ammal towards her maintenance. After her death the amount was to be paid to kaveri Amma periodically. THE mortgagee was to pay the surplus prof its at the rate mentioned in the document to Kaveri Amma towards her maintenance A term of 31 years is fixed in the mortgage. THE mortgagors were to pay the principal mortgage amount and interest at the time of redemption or on demand by the mortgagee. THE rights of Ramayya Alva, the mortgagee, were transferred to the plaintiff on 25-1-1932 as per Ext. A2.

(3.) THE defendants, in their written statement, admitted the mortgage but denied that the cause of action arose only on 16111961 when a demand was made. According to them, Art. 62 of the Limitation Act, which was relied on by the plaintiff, had no application. THE suit, according to the defendants, was barred by 0. 11, R. 2 of the Code of Civil Procedure. THE findings in OS No. 119 of 1968 and AS. No. 28 of 1970 were not res judicata or binding on the defendants as the Court which passed the decree in OS. No. 119 of 1968 was not competent to decide the issue regarding the lease. THE suit, according to the defendants, was opposed to the provisions of the Kerala Land reforms Act, 1964 and Act H of 1970.