KRISHNAN GOMATI Vs. RAGHAVAN PILLAI RAJENDRAN NAIR

JUDGEMENT

(1.) THE second appeal arises from the judgment and decree of the Sub Court, Attingal in A.S.No.18 of 1996 confirming the decree for redemption of the suit property in O.S.No.232 of 1993 of the Munsiff's Court, Attingal.

(2.) RESPONDENTS 1 and 2/plaintiffs sued the appellant (appellant died and one of her legal representatives is prosecuting the second appeal) and the 2nd defendant (her legal representatives are respondents 3 to 8) for a decree for redemption and for mesne profits. They claimed that the suit property - 12 and odd cents with building thereon belonged to Saraswathy Amma who created a usufructuary mortgage in favour of the appellant and one Ayyappan Krishnan as per document No.1111 of 1977 (a copy of which is marked as Ext.A3) for Rs.5,000.00. On 08.05.1980, the said Saraswathy Amma executed an agreement for sale in favour of respondents 1 and 2 agreeing to sell the suit property to them for Rs.29,000.00 and received Rs.8,000.00 by way of advance. Since Saraswathy Amma did not comply with the terms of that contract, respondents 1 and 2 filed O.S.No.16 of 1981 in the Sub Court, Attingal for specific performance of the agreement for sale impleading the said Saraswathy Amma and the mortgagees, appellant and Ayyappan Krishnan as defendants. That suit was decreed (Ext.A4 is the copy of judgment). Saraswathy Amma filed A.S.No.146 of 1986. But, that appeal was dismissed by Ext.A5, judgment. In execution of that decree, there was a settlement between Saraswathy Amma and respondents 1 and 2 and accordingly, Saraswathy Amma executed Ext.A2, assignment deed in favour of respondents 1 and 2. Thus respondents 1 and 2 claimed title over the property and the right to redeem the mortgage. Based on that claim respondents 1 and 2 filed O.S.No.232 of 1993 for redemption of mortgage and for mesne profit.

(3.) THE trial court found against the contentions raised by the appellant. So far as the plea of kudikidappu is concerned, the trial court observed that the question whether the issue relating to kudikidappu has to be referred to the Land Tribunal need be considered only later. Respondents 1 and 2 were given a decree for redemption.