SANTHAMMA Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) S . A. No. 591 of 1990 arises out of O. S. No. 404 of 1983 and the legal representative of the defendant is the appellant. S.A. No. 606 of 1990 is against the decree in O. S. No. 27 of 1984 and legal representative of the 2nd defendant is the appellant. These two suits were jointly tried. O. S. No. 404 of 1983 is for redemption of a mortgage Ext. A1 dated 27-7-1965 and a purakkadam Ext. A2 dated 26-2-1969 in favour of the 2nd defendant's brother. The brother assigned the mortgage right to the

(2.) ND defendant under Ext. B3 dated 19-12-1968. O. S. No. 27 of 1984 is a suit to set aside a sale deed Ext B5 dated 7-6-1969 executed by the 1st defendant in favour of the 2nd defendant, and to direct the defendants to execute a sale deed in favour of the plaintiffs for the same consideration. 2. The plaint schedule property, 9 cents and two buildings, was allotted to the mother who was the 1st plaintiff in O. S. No. 404 of 1983 for life (the 2nd plaintiff in O. S. No. 27 of 1984) under Ext. A3 partition deed dated 23-1-1961 with the vested remainder to the 6 children. Under the provisions of that document the mother was given a life estate and she was allowed to encumber the property upto the extent of Rs. 300/-. Ext. A1 mortgage was in respect of the plaint property as also another property which absolutely belonged to the 2nd plaintiff therein who is one of her sons. Thereafter, the mortgagee assigned the right to the 2nd defendant under Ext. B3 dated 19-12-1968 and a purakkadam Ext. A2 was executed on 26-2-1969 fixing a period of 5 years. A notice was issued to the mortgagee seeking redemption and the mortgagee-2nd defendant sent a reply notice stating that one of the owners of the equity of redemption had assigned her share to; him under Ext. A5 dated 19-10-1983 and that the plaintiffs are not entitled to redeem the plaint schedule property. Thereafter the plaintiffs filed O. S. No. 404 of 1983 for redemption of the mortgage and purakkadam as also O. S. No. 27 of 1984 to enforce the right of pre emption which the 1st plaintiff therein had under the provisions of Ext. A3 thereby asking for setting aside Ext. B5 sale deed and to execute a sale deed in his favour by the 2nd defendant for the very same consideration. These two suits were jointly tried.

(3.) BEFORE this Court counsel for the appellant raised only one contention, i. e. that the suit O. S. No. 27 of 1984 to set aside Ext. B5 sale deed and to have a sale deed executed in favour of the 1st plaintiff for the very same consideration is barred by limitation as it is beyond the time prescribed under Art.97 of the Limitation Act. According to him, if O. S. No. 27 of 1984 is barred by limitation, then the redemption decree also will have to be vacated as ha becomes a part - owner of the equity of redemption and the plaintiffs will not be entitled to redeem the whole mortgage. In that view of the matter, the only question that is to be decided is as to whether O. S. No. 27 of 1984 is barred under Art.97 of the Limitation Act.