NARAYANASWAMI GOUNDAR Vs. PERUMAL CHETTIAR AND ORS.

JUDGEMENT

(1.) THE first defendant is the appellant in the second appeal. The suit was for redemption of a mortgage executed by the plaintiff and others on 23 -4 -1908 (Ex. D. 1) in favour of one Veeraraghava Piliai, the mortgage being a usufructuary mortgage. Contemporaneously with the document, there was a lease -back of the properties to the mortgagors by the mortgagee. On 28 -9 -1910 under Ex. D. 2, the mortgagee assigned his rights under the mortgage to one Venkatarama Gowder who was the head of a joint family. In a partition of 1941, evidenced by Ex. P. 1 dated 30 -4 -1941, the rights under this mortgage were allotted to the first defendant, the present appellant. In the mortgagors' family, there were four members viz., the plaintiff, Palani Chettiar, the 2nd defendant and the third defendant. These were the member; of the joint family at the time of the execution of the deed. The assignee -mortgagee purchased in 1916 in a court auction sale one -fourth interest of Palani Chettiar who is now dead and therefore there was a merger of the two interests to the extent of one -fourth. The substantial defence, apart from some other minor matters, to the action for redemption was that the plaintiff should not be allowed to redeem more than one -fourth share in the hypotheca as, by reason of his purchase of one -fourth interest of Palani Chettiar the integrity of the mortgage Was broken.

(2.) IN the second appeal, the main ground urged by Mr. Swaminathan, counsel for the first defendant -appellant is that the view taken by the trial Court was correct and that the learned appellate Judge ought not to have interfered with it. It cannot be disputed that the integrity of the mortgage was broken by reason of the merger of one fourth interest of Palani Chettiar in the mortgagee, the first defendant. A suit for redemption in such circumstances of the entire property was not the proper remedy of the plaintiff who owns only an one -fourth share in the property. He should have sued for partition and claimed redemption in respect of his share. But the trial Court took, what appears to us a sensible view of giving such relief to the plaintiff even in this suit, as the first. defendant did not seriously object to that course. The effect of the judgment of the learned Subordinate Judge is that It would practicably drive the first defendant to another suit and multiplicity of suits could have been avoided by giving the plaintiff the relief which he is entitled to under the law without a separate suit either by the first defendant or the plaintiff. Further, there is the fact that defendants 2 and 3 created I usufructuary mortgages on their interests in the properties in favour of Venkatarama Gowder and without payments to the first defendant amounts due under those documents, it would be unfair to deprive him of possession of the shares of even defendants 2 and 3. We are, therefore, of the opinion that the view taken by the trial Judge on this aspect of the case is correct and that by the appellate Judge is wrong.

(3.) THE result is that the second appeal must be allowed, the decree of the lower appellate Court is set aside and that of the trial Court is restored with costs here and the Court below. The memorandum of cross objections is dismissed. No costs.