SANTHAMMA Vs. PRABHAKARAN

JUDGEMENT

(1.) The substantial question of law arising for consideration in this second appeal is whether the respondents defendants are entitled to the benefit of S.4A(1)(a) of Act 1 of 1964 as amended by Act 35 of 1969.

(2.) In the suit filed in 1964 for redemption of a mortgage, the Trial Court passed a preliminary decree for redemption rejecting the contentions of the defendants that the plaintiffs have no title. The question of value of improvements was relegated to the final decree. Appeal and Second Appeal were dismissed. While so. Act 1 of 1964 was amended by Act 35 of 1969 incorporating S.4A among other provisions. In the final decree proceedings defendants claimed protection under S.4A(1)(a). That claim was upheld by the Trial Court and the appellate court. Hence this second appeal.

(3.) Thevi and her brother Madan mortgaged 23 cents of land with an old shed in Vanchiyoor, Trivandrum for 700 fanams in favour of two persons by name Krishnan and Kunjan under Ext. P1 in 1082. Mortgagees assigned their rights in favour of one Kunchena Krishnan in 1089. After the death of Madan, Kunchi the mortgagor gave Ext. P3 superior mortgage on 25-10-1099 in favour of one Neelakandan Krishnan for 1400 fanams reserving 700 fanams with him for redeeming Ext. P1 mortgage. Instead of redeeming the mortgage the superior mortgagee assigned his right to the assignee mortgagee Kunchena Krishnan by Ext. P4 in the year 1101. He in turn assigned his rights to defendants 1 to 6 under Ext. P5 on 17-9-1018.