MARIMUTHU Vs. VIRUDACHALAM

JUDGEMENT

(1.) THIS appeal is directed against the Judgment and decree of the learned Subordinate Judge, Thanjavur in A.S. No. 124 of 1993 confirming that of the learned District Munsif, Thanjavur in O.S. No. 461 of 1990. The first defendant in the suit is the appellant in the above Second Appeal.

(2.) THE plaintiff filed the above suit, for the relief of a preliminary decree for redemption directing the defendants to put the plaintiff in possession of the property-hypotheca within a time to be stipulated by the court and in default, to pass a final decree and to direct the property being delivered and also for future profits to be paid at the rate of Rs. 400/- per month from the date of the plaint till actual delivery is given to the plaintiff.

(3.) THE learned counsel for the appellant has strenuously contended that the plaintiff ought to have established his title to the property in as much as he claims to have become the owner of the property by virtue of Ex. A. 1, alleged to have been executed by the original mortgagor, and the Will ought to have been proved by examining the attestors of the Will. With reference to proving the signature of the executor in the Will, the Will has been marked in the suit as Ex. A.1 through the plaintiff. It is also to be pointed out that the Will in the present case, is a genuine document and both the courts have accepted the factum of execution of the same, and the said finding is a concurrent finding of fact. 7a. Even otherwise, it is pointed out by the learned counsel for the respondent that the plaintiff even in the absence of Will would be one of the legal heirs of the testator. According to him, being the brother, the plaintiff is definitely a legal heir of Sivasankaran Pillai. THE learned counsel for the appellant does not dispute the fact that there are no other legal heirs. If so, it cannot be disputed that the plaintiff is undoubtedly the legal heir of the mortgagor and he is entitled to redeem the mortgaged property. It is not necessary that all legal heirs who Slaim right over the property should be impleaded as parties to the suit for redemption. If there was any dispute as between the mortgagors or the legal heirs it is upto the concerned mortgagor or legal heir either to dispute the exclusive right of the plaintiff or the right of the plaintiff to sue without probating the Will.