C P KANDASWAMI MUDALIAR Vs. PALANIAMMAL

JUDGEMENT

(1.) THE first defendant is the appellant. The suit is one for redemption of a usufructuary mortgage dated 3-1-1922 and for partition and separate possession of the plaintiff's alleged half shore in the suit properties. The suit was resisted mainly by the appellant as the first defendant, contending that the mortgage had been discharged by him on 30-6-1949, and that as there is no subsisting mortgage, there is no question of its redemption. He also contended that he had become the absolute owner of the suit properties by virtue of his purchase on 306-1949 and that in any event, he has perfected title to the suit properties by adverse possession.

(2.) THE trial court held that the plaintiff is entitled to redeem the suit mortgage and, therefore, granted a preliminary decree for redemption, partition and separate possession of the plaintiff's half share. The said decision of the trial court has also been affirmed by the lower appellate court.

(3.) IN this second appeal by the first defendant it is contended that the decree and judgment of the courts below granting redemption cannot be sustained in law. The learned counsel for the appellant, however, did not challenge the findings of fact given by the courts below that the plaintiff was entitled to a half share in the mortgage property and the plea based on a family arrangement by which the entire mortgaged property had exclusively been allotted to his vendor had not been established. To appreciate the legal contention put forward by the learned counsel for the appellant, it is necessary to set out a few facts.