PALLATHUMPADIKKAL RAYANKUTTY Vs. SAIDALAVI

JUDGEMENT

(1.) This appeal is directed against the decree and judgment in A.S. No. 59/86 of the Sub Court, Tirur, which was filed against the decree and judgment in O.S. No. 184/83 of the Munsiff's Court, Tirur. Defendants 2 to 4 are the appellants. During the pendency of this appeal the first appellant passed away and his legal representatives are recorded as appellants 2 and 3 as per order dated 28-10-1999.

(2.) The plaintiffs filed the above suit for redemption of mortgage in respect of the plaint schedule property. The plaint property originally belonged to Saidalikutty, the father of plaintiffs 1 to 6 and the husband of 7th plaintiff as set apart to his share in the family partition in 1949. Saidalikutty mortgaged the property in favour of the 1st defendant. The mortgagor was allowed to take the income and to adjust the same towards interest on the amount borrowed. Saidalikutty died and his right devolved on his legal representatives who are plaintiffs 1 to 7. The 1st defendant assigned his right in favour of the 2nd defendant. He has effected improvements in the property. On the allegation that the 2nd defendant is willing to surrender the property the plaintiffs filed the suit.

(3.) D2, D3 and D4 filed written statement contending that the transaction is not a mortgage but a lease. According to them, the property was a waste land at the time of mortgage. The entrustment of property was not as a security for the loan, but for effecting improvements. Saidalikutty was in affluent circumstances and hence there was no necessity to borrow money and the first defendant was not in a position to lend money. The transaction is not a tenancy and as such the defendants are entitled to fixity of tenure. The second defendant executed a gift deed in favour of defendants 3 and 4. They purchased jenm right from the Land Tribunal. Hence, they pray for the dismissal of the suit.