PARU KARTHIYAYANI Vs. PARAMESWARA PANICKER

JUDGEMENT

(1.) THIS appeal arises from a suit for redemption of a mortgage. Item No. 1 in the plaint schedule and other immoveable properties were mortgaged with possession by the plaintiffs' tarwad to Defendants 1 and 2 under Ext. B dated 16-1-1086. Defendants 3 and 4 took an assignment of the mortgage and by a deed of dissolution of partnership executed by them, the said right became vested in the 3rd defendant. Plaintiffs 1 and 2 obtained the equity of redemption under two partition deeds of 1104 and 1113. They sold the equity of redemption to the 3rd plaintiff and a decree was prayed for in his favour.

(2.) DEFENDANTS 3 and 4 who were bound to pay the land tax on the mortgaged property are alleged to have committed default in payment of the same with the object of acquiring the equity of redemption by purchase in revenue sale. The default actually resulted in the sale of 40 cents in item No. 1 in revenue auction and though the ostensible purchaser was a stranger, the purchase was alleged to have been on behalf of Defendants 3 and 4. The nominal rights of the auction purchaser were later acquired by the 3rd defendant. The plaintiffs sought for recovery of this plot treating Defendants 3 and 4 as mortgagees in possession of this plot also. There was also a claim for recovery of damages on account of waste alleged to have been committed by mortgagees. The plaintiffs' case was that the integrity of the mortgage had become broken and that the proportionate mortgage money chargeable on item No. 1 was Rs. 1200. Item No. 2 in the plaint schedule is a chapra and item No. 3, another building both put up by the mortgagees. The plaintiffs prayed for redemption of the mortgage in respect of item No. 1 for removal of item No. 2 and for recovery of possession of items 1 and 3 on payment of the value of improvements and also for recovery of mesne profits and damages for waste. The 3rd defendant died during the course of the suit and his legal representatives were impleaded as additional Defendants 14 to 19. The 7th defendant also died and his heirs are additional Defendants 8 to 13. Of the original defendants, the 5th defendant is the wife of the 3rd defendant. The 3rd defendant filed a written statement and his main contentions, were that the plaintiffs were not entitled to recover possession of the plot sold in revenue sale and subsequently purchased by him, that he was entitled to the value of improvements, that no waste had been committed, that the claim for damages was not sustainable, and that the rate at which mesne profits was claimed was excessive. After his death, his widow the 5th defendant filed a written statement contending that the 3rd defendant had convoyed his rights over the property to her and stating that she was adopting the contentions of her husband. The 7th defendant claimed that item No. 3 belonged to him and that be was entitled to the value thereof. The 8th defendant stated that he was adopting the contentions of the 7th defendant. On behalf of Defendants 17, 18 and 19, their guardian filed a written statement claiming the amounts deposited by the plaintiff.

(3.) THE court below passed a decree allowing redemption of the whole property inclusive of the plot sold in revenue sale. The claim for damages on account of waste was disallowed. Besides the mortgage money, the 3rd plaintiff was directed to pay a sum of Rs. 1751-8-3 as compensation for improvements inclusive of item no. 3. It was also directed that the 3rd defendant was to remove item No. 2 within 4 months of the date of decree failing which the plaintiff was to recover possession of the same on payment of Rs. 205. The 3rd plaintiff was also allowed to recover a sum of Rs. 5-10-0 as arrears of onakazcha and mesne profits, at the rate of Rs. 206-10-0 per annum. The defendants were directed to establish by a separate suit their respective claims to the mortgage money and value of improvements. The plaintiffs and defendants were also asked to bear their respective costs. The 5th defendant has preferred this appeal from the decree passed by the court below.