PAPPAYEE AMMAL Vs. SUBRAMANIAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for recovery of possession of the suit properties, by the respondent herein, who was one of the four brothers who mortgaged the property usufruc-turily in favour of one Padmanabha Reddiar. The four brothers had also executed a simple mortgage in favour of one Balarama Reddiar. The brothers entered into a partition on 27.5.1976 in which they agreed that they should share equally for discharging the mortgages. The plaintiff filed O.S.No.213 of 1976 for redeeming the usufructuary mortgage. In the suit he impleaded the other three brothers as parties and the mortgagee besides other transferees. The suit was decreed on 27.8.1976. By virtue of the decree, the plaintiff became entitled to possession. When he sought to execute the decree the defendants, who are the appellants in the appeal, obstructed the same.

(2.) THE suit was filed on the ground that the appellants are not entitled to be in possession as the plaintiff had been subrogated to the right of the usufructuary mortgagee by virtue of the redemption decree. THE suit was resisted by the appellants on the ground that the first appellant had purchased a portion of the property from one of the brothers viz., Santhana Gounder on 19.6.1976 under Ex.B-4 with an agreement for reconveyance on the same date under Ex.A-2. THE second defendant claimed to have obtained a usufructuary mortgage from another brother Sangeni Gounder under Ex.B-1, dated 9.6.1976. According to the appellants they were entitled to be in possession as they had redeemed the earlier mortgages pursuant to the directions given by their vendors.

(3.) IN this second appeal, learned counsel for the appellants contends that even if the factual plea of the appellants that they had redeemed the earlier mortgages is rejected, the appellants are entitled to redeem the plaintiff, who is one of the co-mortgagors and who has been subrogated to the rights of the usufructuary mortgage. Learned counsel submits that even in the written statement a plea has been raised that the defendants should be allowed to redeem the mortgage as they have stepped into the shoes of two other co-mortgagors who are non-redeeming co-mortgagors.