R PONNU NADAR Vs. N BHAGAVATHI PILLAI

JUDGEMENT

(1.) THE defendants 2 to 7 in the suit are the appellants herein. THE suit is one for redemption of two mortgages executed on 26. 5. 1113 m. E. and 24. 5. 1115 M. E. It is not in dispute that the plaintiffs are the successors in-title of the mortgagors and the defendants are the successors-in-title of the mortgagees. THE contention raised by the defendants-before the trial court was that the suit was not maintainable as it was barred by res judicata by reason of the decision in O. S. No. 1587 of 1119 m. E. on the file of the Principal District Munsif, Kuzhithurai, wherein the mortgage deeds were set side and that the suit is barred by limitation. THE trial court accepted the contention of the defendants and dismissed the suit. On appeal the Additional Subordinate Judge, Kuzhithurai reversed the conclusion of the trial Court and granted a decree in favour of the plaintiffs for redemption and recovery of possession though the claim for damages was negatived.

(2.) IN this second appeal, learned counsel for the appellants raised a contention that the defendants were in possession as lessees and not as mortgagees. Learned counsel placed reliance on Ex. Bl, dt. 9. 10. 1072 representing a marayapattam and kuzhikanam transaction executed by the predecessor in title of the plaintiffs in favour of the predecessor-in-title of the defendants. According to learned counsel, Exs. A1 and A2 are only renewals of the transaction evidenced by Ex,b1 and the character of possession of the defendants as lessees never changed into that of mortgagees. Hence it is submitted by learned counsel that the suit for redemption of mortgages is not sustainable.

(3.) THIS suit relates to both Ex. A. 1 and A. 2. Ex. A. 1 is a subsequent mortgage dt. 24. 5. 1115 M. E. whatever arguments was advanced by learned counsel for the appellants with reference to Ex. A. 2 would not apply in toto Ex. A. l. There is no reference here to the renewal of the lease. While setting out the history of the property a reference is made to the lease of 1072 M. E. The other operative recitals do not show that the document is a renewal of the lease as such. The consideration is 200 panams under which 1121/2 panams are adjusted as against the value of improvements while 62 1/2 panams therefor are reserved for redeeming the mortgage from Ooli Raman and podiyan Lakshmanan. A sum of 25 panams is received in cash.