INDIRANI Vs. SUNDARAMMAL

JUDGEMENT

(1.) The plaintiffs, who lost the case before both the courts below in a suit for redemption of mortgage, are the appellants herein.

(2.) Necessary facts for the disposal of this appeal are as follows: The plaintiff No.1 is the wife and the plaintiff Nos.2 to 5 are the children of one Subramani, who died about 11 years ago leaving the plaintiff to succeed his estate including the schedule mentioned immovable property, which was a residential house. It was the ancestral joint family property of the plaintiffs 2,3 and 4 and their father Subramani. On 11.10.1964, he executed a registered mortgage deed by conditional sale in favour of one Varadaraji Mandiri for Rs.1500/-. The said Subramani had no right to deal with the same separately with Varadaraji Mandiri, since it is a family property. The dealings referred to above was for the family benefit or that of the minors. The plaintiffs 2,3 and 5 are not the parties to the transaction. The suit mentioned properties was mortgaged to Varadaraji Mandiri by mortgage by conditional sale on the said date. In lieu of the interest due, Varadaraji Mandiri was enjoying the schedule mentioned property. He was collecting Rs.75/- per month by way of rent and living in the suit premises and no interest was to be paid for the mortgage. After the death of Varadaraji Mandiri, the defendants, who are the legal representatives, are now in possession of the premises which is the subject matter of the mortgage. The plaintiffs need not pay even the principal to the mortgagee, legal representatives, who are the defendants herein. The plaintiffs are entitled for redemption without paying principal and interest. But, however, if the Court comes to a conclusion that the defendants are entitled, they are ready and willing to deposit the entire amount as per the mortgage, and hence, it was a suit one for redemption of mortgage.

(3.) The suit was resisted by the defendants inter-alia stating that the transaction entered into between the defendants and Varadaraji Mandiri would be binding on the plaintiffs and it was an absolute sale and not a mortgage by conditional sale as put forth by the plaintiffs; that the defendants were put in possession of the properties; that on the death of Varadaraji Mandiri, his heirs have actually got the possession and continued to be there, and thus, the suit was misconceived and was to be dismissed.