KRISHNA MENON BHASKARA MENON Vs. MADHAVAN

JUDGEMENT

(1.) An interesting question is raised in this revision and that is whether a redeeming comortgagor is entitled to claim that in regard to that portion of the property to which title is in the other comortgagors he has stepped into the shoes of the mortgagee for all purposes so much so he could set up a plea that he is entitled as a mortgagee to claim the benefit of S 4A of Act 1 of 1964. The question arose in final decree proceedings in a redemption suit. An application for passing a final decree has been dismissed by the court below and that is the subject of revision.

(2.) The short and relevant facts are: The plaint schedule properties which belonged to Nedumbilli Tarwad of defendants 1 to 3 were set apart to the tavazhi of defendants 1 to 3 as also to the tavazhi of one Karthiyayani Amma. Distinct portions of the properties were so set apart to the two tavazhies. This was in the partition deed executed in the tarwad in the year 1096. At that time the properties were outstanding under a mortgage from the tarwad of the year 1081. The partition deed authorised redemption by the two tavazhies jointly or redemption of the entire property by anyone of the tavazhies In the latter event the redeeming tavazhi was to hold possession of the proper ties of the other tavazhi subject to the obligation to surrender possession on reimbursement of the expenses met in so redeeming the property of the other tavazhi. The tavazhi of defendants 1 to 3 redeemed the properties. Subsequently the right of the tavazhi of defendants 1 to 3 was obtained by the 5th defendant on whose death it has devolved on the 9th defendant. Redemption was sought by the plaintiff who had obtained an assignment of the rights of Karthiyayani Amma's tavazhi in regard to the portion of the property set apart for the said tavazhi. A preliminary decree was granted and the property to be redeemed was referred to as the blue marked portion in the commissioner's plan. After the preliminary decree a contention was set up by the 9th defendant that he was a tenant to be deemed as such by reason of the provisions of S.4A of Act 1 of 1964.

(3.) The question of applying this section would arise only if the 9th defendant is a mortgagee. If he is a mortgagee he can claim to be a lessee by reason of the application of S.4A. But if he is not one such there is no basis for such a claim. S.4A reads: