SIVASANKARA PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) Plaintiffs 1 and 3 in O.S. 119 of 1992 on the file of Munsiff Court, Adoor are the appellants. Legal heirs of the deceased sole defendant are respondents 1 to 3. Second plaintiff is the fourth respondent. On his death, additional respondents 5 to 7 were impleaded as his legal heirs. Learned Munsiff passed a preliminary decree for partition in respect of item No. 2 of the plaint schedule properties but dismissed the claim for partition of item No. 1 of the plaint schedule properties. Appellants challenged the decree before Additional District Court, Pathanamthitta in A.S.19 of 1996. Learned Additional District Judge confirmed the findings of the learned Munsiff and dismissed the appeal confirming the dismissal of the claim for partition of item No. 1 of the plant schedule properties. Appeal is filed challenging the decree. The appeal was admitted formulating the following substantial questions of law.

(2.) Learned counsel appearing for the appellants and the respondents were heard. Learned counsel appearing for appellants argued that item No. 1 of the plaint schedule properties admittedly belonged to Neelakanda Pillai and on his death, it devolved on his son Raman Pillai. Appellants, fourth respondent and first respondent are the children of Raman Pillai. It is submitted that admittedly Neelakanda Pillai had created two usufructory mortgage in favour of Ayyan in 1106 ME being the eastern portion of item No. 1 of the plaint schedule property and in favour of Mathai being the western portion of item No. 1 of the plaint schedule property in 1112 ME. Later the deceased defendant who was the Karanavan of the family redeemed the mortgage in 1115 ME for and on behalf of the family. Appellants have paid their share of the mortgage money, interest and litigation expenses to the defendant Therefore item No. 1 of the plaint schedule properties, which on the death of Raman Pillai devolved on the appellants, fourth respondent and the defendant. They are in joint possession. Plaintiffs are entitled to their 1/4 share each separated.

(3.) Defendant resisted the suit contending that the mortgages were redeemed by him and he did not receive any contribution from the plaintiffs. As the mortgage was redeemed in 1115 ME, he stepped into the shoes of the mortgagees. The period for institution of suit for redemption by the plaintiffs is barred. Hence defendant is the absolute owner in possession of item No. 1 of the plaint schedule property and it is not available for partition.