SREEKUMARAN NAIR Vs. VELAYUDHAN NAIR

JUDGEMENT

(1.) This Second Appeal was referred by one of us (Krishnamoorthy, J.) as an important question of limitation arises in this appeal. The question of limitation will depend upon the question as to whether one of the decree holders in a redemption suit who executes a decree by virtue of the provisions contained in O.21 R.15 of the Code of Civil Procedure can be equated to a redeeming co-mortgagor who redeems property de hors a decree. A learned Single Judge of this Court in S.A.No.844 of 1979 has held that in such cases the position is the same. The matter was referred to a Bench as the learned Single Judge had his own reservations in the matter at that time.

(2.) The 13th defendant in a suit for partition is the appellant. B. Schedule property forms part of A schedule. A schedule property belonged to the tarwad to plaintiffs 1 to 7 and defendants 1, 4 and 8 and others. It was outstanding on a mortgage from 1066 M.E., renewed in 1077 ME and again in 1092 ME. To redeem that mortgage the present plaintiffs 2 and 4 and defendants 1 and 4 and others filed O.S.No.1274 of 1121 before the Munsiff's Court, Trivandrum. A decree for redemption and recovery was passed on payment of 700 fanams as mortgage amount and Rs.538 and 7 anas as value of improvements on behalf of the tarwad. In the meanwhile, there was a suit for partition in the tarwad which was O.S.314 of 1124 before the Munsiff's Court, Trivandrum. The equity of redemption over the plaint schedule property was item No.3 in that suit. Defendants 13 and 15 in the suit were allotted specific plots. It is also alleged in the plaint that defendants 1 to 12 were allotted a plot of 31 1/2 cents. The present plaintiffs 1, 2 and 4 were defendants 4 to7 in O.S.314 of 1124 and present defendants, I, 4 and 8 being defendants 8,10 and 9 in that suit. The present defendants 14 and 16 are the children of the 12th defendant in that suit. Ext. Al is the decree in that case; the preliminary decree being on 24-10-1949 and the final decree being on 9-11-1953. The present 1st defendant and her children filed O.S.No.l76 of 1963 before the Munsiff's Court, Padmanabhapuram for partition of their joint properties. The present plaint schedule property was C-schedule in that suit. By a decree dated 3-8-1967 it was held that the equity of redemption was divided in O.S.314 of 1124 and it was further held that 20 members of the sub tarwad are each entitled to 11/240 shares in the equity of redemption. 11/240 shares of late P.K. Madhavan Nair devolved on defendants 17 to 20. In the meantime, in execution of the redemption decree in O.S.No.1274 of 1121, the present 4th defendant (10th plaintiff in that suit) applied for execution on behalf of the decree- holders and got delivery of the plaint schedule property on 13-9-1963. The 4th defendant transferred her right in the property to the 13th defendant under a sale deed Ext.A4 dated 16-11-1968. The present 4th defendant has to be deemed to be in possession on behalf of the sharers as also the 13th defendant who is an alienee of the 4th defendant. Plaintiff are entitled to get partition of their share in the plaint B schedule property. Plaintiffs are also prepared to pay the proportionate amount payable to the 4th defendant or her assignee towards the redemption price deposited for getting delivery in the redemption decree in O.S.No.1274 of 1121. Tentatively the plaintiffs have fixed their share of the amount at Rs.6,000/- which they are prepared to deposit. Plaintiffs are also entitled to settlement of accounts. It is further alleged in the plaint that there is no limitation for the suit as the delivery was taken on behalf of all the sharers. So also, 4th defendant has acknowledged the mortgage under Ext.A4 sale deed dated 16-11-1978 and the suit within 12 years of that date is not barred by limitation. On these allegations the present suit is filed for partition and recovery of their share, on 17-ll-1980,: on their paying the proportionate redemption price deposited by the 4th defendant.

(3.) Defendants 4 to 7 claimed their share in the property and further offered that they are prepared to pay the proportionate mortgage amount. The 13th defendant who is the appellant and the main contesting defendant filed a written statement contending that the redemption by the 4th defendant was in, her individual capacity and that as a co-mortgagor obtained redemption by depositing the mortgage money and value of improvements. It was contended by the 13th defendant that at the time the 4th defendant recovered the property in execution of the decree, the tarwad had attained the status of division in view of the partition decree in O.S.314 of 1124 and that the recovery of possession was not on behalf of the tarwad. The delivery was in her individual capacity . and as a co-mortgagor. Delivery was on 18-9-1963 and the original mortgage was of the year 1092. The period of the original mortgage as also 12 years had lapsed from the date of delivery and accordingly the suit is barred by limitation. It was further contended that there is no acknowledgment in Ext.A4 which will extend the period of limitation under the limitation Act.