RAMAN PILLAY KESAVA PILLAY Vs. KOCHUKUNJU SANKARAN

JUDGEMENT

(1.) THESE two appeals arise out of a suit for redemption. S A. No 1212/68 is by defendants 4 to 6 and 8 to 10 while S. A. No. 62/69 is by the 1st plaintiff.

(2.) THE suit property which originally belonged to the Illom of the 1st defendant was outstanding on otti in (favour of one Krishnan. While, so. the father of the 1st defendant executed Ext, P-3 'mellottiyadharam' (superior mortgage) in favour of one Raman Pillai the predecessor-in-interest of defendants 3 to 14 authorising the mortgagee to redeem the prior mortgage. It is common case that the mortgagee raman Pillai redeemed the prior mortgage and reduced the property to his possession. Ex. P-3 was followed by two 'purakkadam' deeds, Exts. P-4 and P-5, whereby the Illom borrowed further amounts from Raman Pillai charging the suit property. Under Ext. P-8 udampady in the Illom the 1st defendant obtained the equity of redemption of the suit property. The 1st plaintiff purchased that right from the 1st defendant as per Ext, P-6 and instituted (the present suit for redemption of Exts. P-3, P-4 and P-5 mortgages. The contesting defendants claimed fixity of tenure under the relevant provisions of Act 1 of 1964, and contended further that Ext. P-6 being violative of Section 84 of Act 1 of 1964 cannot confer any title on the plaintiff with respect to the equity of redemption. During the course of the (trial the 1st defendant filed a petition as I. A. 958/66 to get herself transposed aa additional 2nd plaintiff. The trial court dismissed that petition on 6-10-1966.

(3.) THE trial court, while holding that the suit transactions are only redeemable mortgages, non-suited the plaintiff on the short ground that Ext. P-6 to which he traces his title is invalid In so far as it contravenes the provision! of Section 84 of act 1 of 1964. Against that decision the plaintiff and the 1st defendant went in appeal as A. S. 21/ 1967 and A. S. 75/1967 respectively. The lower appellate court allowed the prayer of the 1st defendant for transposition as additional 2nd plaintiff and gave a preliminary decree for redemption in favour of the additional 2nd plaintiff.