C K VISWANATHA IYER Vs. K VITHAL RAO

JUDGEMENT

(1.) THE short point that arises for consideration in this second Appeal is as to whether the plaintiffs are entitled to redeem the usufructuary mortgage, Ext. AI including the Kumki properties described in schedule B of the plaint. THE trial court upheld the plea of the plaintiffs, but the appellate court has declared their right to redeem only the admitted mortgaged properties mentioned in schedule A of the plaint and disallowed their claim to treat the B schedule properties as accretions to the mortgaged properties.

(2.) IN my view, the reasoning of the lower appellate court cannot be sustained. As stated by the trial court, even the second defendant has stated in chief-examination that the B schedule properties namely, Kumki lands were obtained on Darkhast and that Exts. B4 to B7 are assessment receipts. The mortgage, Ext. Al, itself makes the reference to Kumki lands also as included in the mortgage. That there were Kumki lands adjoining the mortgaged properties was not disputed before the trial court. Therefore, when the usufructuary mortgagee, who is already in possession as usufructuary mortgagee of Kumki lands gets the adjoining Kumki lands on Darkhast utilising his position as a mortgagee, the law is clear that the mortgagor is entitled to treat the said acquisition as an accretion and as part of the mortgaged property. IN this view, the trial Court held that the B schedule properties are Kumki to the mortgaged properties and S. 63 of the transfer of Property Act will entitle the mortgagor to treat the B schedule properties also as an accession or accretion to the mortgage.

(3.) THE decree and judgment of the lower appellate Court are set aside and those of the trial court restored with costs in the lower appellate court and in the trial Court. As nobody has appeared for the respondents in this Court there will be no order as to costs in the Second Appeal. No leave. Allowed.