M ABUBAKER Vs. KADIJA UMMAL

JUDGEMENT

(1.) What is the legal effect of a co-mortgagor redeeming the mortgage, on the right of a non-redeeming co-mortgagor This is the question to be decided in the second appeal.

(2.) Plaintiffs in a suit for redemption and partition before Munsiff Court, Thiruvananthapuram are the appellants. Defendant is the respondent. In the suit, appellants sought partition and allotment of 4/14 shares by metes and bounds after redemption of Ext.A3 mortgage dated 18-02-1997 (M.E.) over that portion of the plaint schedule property. Plaint schedule property is 21 cents in survey No. 447-A of Iranimuttom village of Thiruvananthapuram Taluk. The property admittedly originally belonged to Shalha Ummal and her daughter Aisha Ummal under Ext.A2 sale deed dated 18-2-1997 (M.E.). It was on the date of the sale deed itself, Shalha Ummal and Aisha Ummal jointly executed Ext.A3 registered mortgage deed after receiving the mortgage money of Rs. 1,250/ - from Captain Mohammed Mohammadeeyan Sahib. Shalha Ummal had, apart from Aisha Ummal, two daughters Pathumma and Saina Beevi and three sons Mohammed Kasim Pillai, Meeran Pillai and Aboobaker. On the death of Shalha Ummal, her right devolved on her children. Aboobacker, her son, under Ext.A1 sale deed dated 25.07.1950, assigned his 2/14 shares in favour of plaintiffs who are the legal heirs of Mohammed Kasim Pillai, who inherited 2/14 shares as the son of Shalha Ummal. Plaintiffs thereby obtained 4/14 shares. The mortgagee Captain Mohammed Muhammadeeyan Sahib died and his mortgage right devolved on his son Abdul Khader who in turn executed a submortgage in favour of Mohammed Salim for Rs. 250/- in 1116 (M.E.) as per registered deed 3428 of 1116. After the death of Abdul Khader, his right devolved on his three children Asma Beevi, Abdul Khader Sahib and Sainulabdeen Sahib. In 1950, the intermediary right of Asma Beevi was released as per document No. 3727/1950 and the remaining 2/3rd right was released by the respondent as per registered receipt 2306/1972. Under Ext.B5 assignment deed dated 26.06.1969, Sainulabdeen assigned his rights in favour of respondent in 1972. Under Ext.B 13 gift deed respondent transferred her rights in favour of her children Mohammed Hussain and Mohammed Salim on 04.11.1982. The jenmom right of Aisha Ummal over 12 cents of the property, out of Ext. A2 property, was assigned in favour of Sainulabdeen under Ext.B6 sale deed 5081/1950 dated 01.12.1950. Sainulabdeen got assignment of the share of Saina Beevi, the daughter of Salhaummal who had 1/14 shares over the property under Ext.B7. Sainulabdeen instituted O.S. 138/1951 for redemption of the sub-mortgage and pursuant to the settlement of the dispute obtained registered document 771/1951 from Mohammad Sali and obtained possession of the entire plaint schedule property in 1951. Sainulabdeen then created a mortgage in favour of Mohammed Sali as per document No. 2476/1957 for Rs. 3,200/- and thereafter that mortgage right vested in Haboosa Beevi who assigned that mortgage right in favour of respondent as per registered document 3179/1965. Sainulabdeen then obtained Rs. 1,800/- and executed a mortgage deed 3191/1965 in favour of respondent. It is inclusive of that right respondent got assignment of the rights under Ext.B5 from Sainulabdeen. Respondent thus obtained rights over the plaint schedule property. The case of appellants was that they are entitled to get their share separated and on such partition, they are prepared to deposit the proportionate mortgage money of Rs. 337/- due under Ext.A3 mortgage. A preliminary decree was sought. Respondent in the written statement contended that appellants are not entitled to redeem the mortgage on payment of the proportionate mortgage money as it was barred by time and the mortgagee had made valuable improvements worth Rs. 50,000/- and she has been in possession of the property as full owner. As Sainulabdeen, Abdul Salam and Abdul Jaleel had absolute right over the property, plaintiffs are not entitled to the decree for redemption or partition. It was also contended that the claim for redemption is barred by limitation and even if appellants have any right, it was lost by adverse possession and limitation. Respondent also contended that in any event, she is a tenant entitled to the benefit of Section 4A(1)(c) as defined under Kerala Land Reforms Act, 1963 as she had effected improvements in the plaint schedule property which was a waste land at the time of mortgage and therefore the suit is only to be dismissed.

(3.) Learned Munsiff framed necessary issues. Additional issue No. 7 framed on the plea of respondent claiming benefit under the Kerala Land Reforms Act was answered against respondent without referring the suit to the Land Tribunal, holding that Ext.A2 establish that plaint schedule property was not a waste land and therefore claim for tenancy raised under Section 4A(1)(c) does not arise for consideration and the said plea was raised without bona fides and respondent is not entitled to the benefit. Learned Munsiff also found that respondent being a co-owner, her possession of the plaint schedule property could only be for the other co-owners also and as there was no plea of ouster, the defence based on adverse possession is not sustainable. Learned Munsiff after appreciating the evidence found that plaintiffs have 4/14 shares and they are entitled to get their share separated after depositing the proportionate mortgage money of Rs. 337/- within six months from date of the preliminary decree. A preliminary decree was thus passed. Respondent challenged the preliminary decree and judgment before District Court, Thiruvananthapuram in A.S. 83/1988. Learned Additional District Judge, on reappreciation of evidence, upheld the finding of learned Munsiff that suit is not barred by adverse possession and limitation. But learned District Judge found that Ext.A3 mortgage was of 18.02.1097 and the suit was instituted only on 16.03.1981 and a suit for redemption should have been instituted on of before 01.01.1971 as provided under Article 61 of Limitation Act, 1965 and as provided under Rule 6 of Order 7 of Code of Civil Procedure, appellants did not plead exemption from operation of Article 61 of the Limitation Act and therefore the claim for redemption is not maintainable. The first appellate Court considered the correctness of the findings of the learned Munsiff that in view of the acknowledgement as provided under Section 18 of the Limitation Act, a fresh period of limitation has started to run and the suit is within time also. But analysing Exts.B1, B2 and B4 to B7, learned Additional District Judge held that none of the documents operate as acknowledgement of the debt by the mortgagee and therefore Section 18 of Limitation Act has no application and the period of limitation has not been extended as found by the trial court. Following the decision of this Court in Karthiyayani Amma v. Karthiyayani,1964 KerLT 214 it was held that legal position of a redeeming co-mortgagee, in respect of the mortgage as against the non-redeeming co- mortgagee, is that of a mortgagee and as the mortgage has not been redeemed within the period of limitation, the suit is not maintainable and appellants are not entitled to the decree for redemption or partition. First Appellate Court also found that trial court should have referred the question of tenancy claimed by the appellants, to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act. But in view of the findings, that appellants are not entitled to the reliefs sought for, that question was not further considered. The appeal was allowed and the preliminary decree and judgment were set aside and the suit was dismissed. It is challenged in the Second Appeal.