(1.) VARIOUS questions have been argued by Mr. Dhikshitalu for the appellants and for a proper understanding of those points it is necessary to set out in brief outlinethe facts which resulted in this litigation. Defendants 1 to 3 and 9 and 10 in O. S. No. 22 of 1944 on the file of the Court of the Subordinate Judge of Chicacole are the appellants in this appeal. Respondents 1 and 2 as plaintiffs brought a suit for redemption of two mortgages, Exs. D -1 and D -2 dated 19 -6 -1922 and 2 -4 -1923, respectively. The property belonged to defendants 9 and 10, a husband and wife, as tenants -in -common. Both of them mortgaged the properties by two mortgages to defendants 1 to 8. On the basis that each one of them had a separable interest in the properties, a creditor of defendant 9 brought O. S. No. 212 of 1922 on the file of the District Munsif of Vizianagaram for realisation of a sum of money and got a decree. In execution of the decree, a half -share in the equity of redemption of the mortgaged properties was sold and purchased by those creditors. Constructive possession of the same was delivered over to them by the delivery receipt dated 6 -6 -1927. The purchasers were, G. Appalanaidu and Rajunaidu. These purchasers sold what they had purchased to the plaintiff for a sum of Rs. 2500 on 31 -1 -1923. Thereafter, defendant 10 sold a half share of her right, that is, one fourth of the equity of redemption to defendants 1 to 3 on 24 -4 -1928. It is admitted that such a sale has taken place though the sale deed has not been exhibited before the Court. On 12 -4 -1930, by Ex. P -2, defendant 10 sold the remaining one -fourth share in this property to the plaintiffs. The result of these transactions is that the plaintiffs have become owners of the three -fourths of the equity of redemption and defendants 1 to 3 who were some of the mortgagees became the owners of the remaining one -fourth of the equity of redemption.
(2.) WHILE matters were in that state the present plaintiffs brought O. S. No. 265 of 1933 on the file of the District Munsif's Court, Vizhakapatnam, evidenced by EX. D -4 in which the plaintiffs claimed to be in possession of the half share and contended that they were entitled for partition and recovery of possession of the half share. This suit was laid on the basis of the assignment of the half share of defendant 9 by the purchasers Appalanaidu and Rajunaidu. No claim was set up on the footing of the plaintiffs' purchase of the one -fourth share of defendant 10 under Ex. P 2. We are not fully conversant with the details of that litigation but we find that on 11 -10 -1933, on the ground that the suit as framed was not maintainable, it was dismissed by the trial Court. An appeal was taken to the Court of the Subordinate Judge, Vizhakapatnam, as A. S. No. 133 of 1934. Exhibit P -4 is the decree therein by which it was found that the plaint was ordered to be rejected under Order 7,Rule 11, Civil P. C. The outcome of the decision in A. S. No. 133 of 1944, is that the provisions of Order 7, Rule 11, were invoked and the plaint was rejected. In the meanwhile, after purchasing the equity of redemption from Appalanaidu and Rajunaidu, tha plaintiffs paid in all a sum of Rs. 1250 in two instalments to the mortgagees namely, defendants l to 8 on 24 -4 -1928 and 25 -4 -1928 respectively. It it admitted and the matter is now beyond question that the mortgagees have received half the amount of the mortgage sum namely Rs. 1250. The present suit is for redemption and partition of the plaintiffs' three -fourth share of the property, by paying the balance of the proportionate mortgage amount and also for claiming the mesne profits proportionate to the plaintiffs.
(3.) EXHIBIT D -1 is a mortgage for a sum of Rs. 2000 dated 19 -6 -1922 and therein it is stated that out of the income of the suit properties which was fixed at Rs. 255 the mortgagee was to appropriate the interest at the rate of 9 annas per cent. per mensem. This amount came to Rs. 135 and a sum of Rs. 70 has to be appropriated by the mortgagee for payment of kattubadi, quit rent, land cess etc., for the suit properties. The balance income of Rs. 50 and 2 1/2 puttis of paddy were to be paid by the mortgagees to the mortgagor by the 30th of Palguna Bahula of each year and receipts taken for that payment. The second mortgage for Rs. 600 recites the earlier transactions and it is more or less in the nature of an additional advance of a further mortgage amount. It is not necessary to refer to its terms in detail.