THOMAS STEPHEN Vs. KAMALAKSHY KUTTAMMA

JUDGEMENT

(1.) Seventh defendant in O.S.No.266/1985 on the file of the First Additional Munsiff's Court, Neyyattinkara is the appellant herein. The suit was filed by the respondents 4 to 6 herein as plaintiffs for redemption of mortgage in respect of their > share in the plaint schedule property and also for partition of plaint schedule property between the plaintiffs and the 1st defendant and allotment of their > share after fixing the boundary on the eastern and western side of the plaint schedule property. It is alleged in the plaint that the property having an extent of 1 acre 22 cents originally belonged to the father of the plaintiffs and their brother Chellappan Nadar namely, Kesavan Nadar and after the death of Kesavan Nadar, plaintiffs and the said Chellappan Nadar obtained the property by inheritance. The plaintiffs along with Chellappan Nadar executed Ext.A1 mortgage deed in favour of 2nd defendant in the suit on 27.08.1966 for an amount of Rs.1,250/- and the 2nd defendant assigned the mortgage right in favour of the 3rd defendant. Chellappan Nadar's < right devolved on his wife and children and that right was also purchased by the 3rd defendant, thereby integrity of mortgage has been broken and the remedy is redemption of their share and partition of the property. The right of the 3rd defendant in respect of < share of Chellappan Nadar was purchased by the 1st defendant. So, 1st defendant is entitled to get < right while the plaintiffs are entitled to get > right. The defendants 4 and 5 are having 80 cents of land on the western side of the property as per the documents executed in favour of them by the plaintiffs and their brother. The eastern side 80 cents is enjoyed by defendants 6 to 10. So they want to put up boundary along with eastern and western side of their > share for which they are entitled after permitting them to remit their share of Rs.937.50 towards the mortgage amount. Additional defendants 11 to 16 were impleaded as other legal heirs of Kesavan Nadar on the basis of the contentions of the 7th defendant as per order I.A.2932/1986.

(2.) Defendants 1, 6, 8 to 10 and 11 to 16 remained exparte. Defendants 3 to 5 and 7 appeared through counsel and filed written statement. 3rd defendant filed written statement supporting the case of the plaintiffs and he did not have any right in the property as he already assigned his right to 1st defendant. He had admitted that he had assigned < right of the jenmom right to the 1st defendant and retained > mortgage right alone in the property. He claimed that he is only entitled for an amount of Rs.937.50 mortgage amount and he has no objection in redeeming the mortgage and handover possession in respect of > right of the plaintiffs and he has also no objection in putting up boundary at the cost of the plaintiffs.

(3.) Defendants 4 and 5 have filed written statement contending that the description of plaint schedule property is not correct and he purchased eastern 40 cents within 80 cents, which lies adjacent to the western 42 cents described in the suit property on 21.06.75 and he constructed a house and is residing there. There is compound wall on the eastern boundary of that building. The suit property lies outside the eastern side boundary of the building. 3rd defendant sold her < share stating its extent as 10 = cents as per sale deed No.644/82 to one Raghavan Nadar Gopi and the said Gopi sold to defendant No.5 as per sale deed dated 14.10.83 and the 5th defendant is possessing and enjoying that 10 = cents and that 10 = cents lies adjacent to the east of the compound wall of 4th and 5th defendant's property. It is not true that 4th and 5th defendants are made as parties to this suit as adjacent property owners. 5th defendant obtained the property on the basis of the redemption of prior mortgage by defendants 4 and 5. There is nothing for redemption by the 5th defendant. Defendants 4 and 5 have no objection for partitioning the share for which plaintiffs are entitled and for putting up boundaries in the plaintiffs property. 5th defendant is entitled for partition of his 10 = cents, which is in his possession. 4th defendant is not a necessary party to the suit as his property lies far away from the suit property and he has no right in the property claimed.