PALANITHURAI MUDIKONDAR Vs. VEERAPPA THEVAR

JUDGEMENT

(1.) ONE Rangavellala Thevar, the plaintiff's grandfather's brother executed a mortgage in favour of one Sabhapathi Patharin 1882. The properties survived to the undivided brother of Rangavellala Thevar, Vaithi. Vaithi's son is Panchanatha thevar. Panchanatha had two sons, one Marudiah and the plaintiff. Marudiah died issueless, so that the plaintiff claimed that he is the sole surviving member of the family who is entitled to the equity of redemption.

(2.) BEFORE his death, this Marudiah Thevar sold the property to the fifth defendant in 1920. The mortgage right changed hands in the mortgagee's family in the following manner. After the death of the original mortgagee Sabhapathi Pathar, his undivided brother Arunachala was in enjoyment of the property. In a will executed by him, he is said to have admitted that the family owned only a mortgage right in the property. Defendants 1 to 3 became entitled under the will. That was in 1903. In 1922, defendants 1 to 3 executed a mortgage in favour of one Mangalambal. Mangalambal assigned his mortgage in 1928 to the fourth defendant. Subsequently, defendants 1 and 2 executed a sale deed conveying their right to the 4th defendant. The plaintiff claimed that he had been living in singapore from the year 1922 onwards and that it was only on his return to India in 1958 that he became aware of these transactions. He issued notices to the defendants expressing his willingness to redeem the property. But the notices sent to defendants 1 to 3 were undelivered and the fourth defendant did not render any reply to the notice. The plaintiff further alleged that the fifth defendant, who had obtained a sale deed in 1920 from the plaintiff's elder brother Marudiah, can claim to title under that document, as that sale is a nominal one. It is in these circumstances that the plaintiff purported to be entitled to redeem the property and filed the suit.

(3.) IT was the contention of the fourth defendant that defendants 1 to 3 were in possession and enjoyment of the property as full owners and that they purported to execute a mortgage over the property in exercise of such rights as full owners in favour of Mangalambal, from which person the 4th defendant derived title. As stated already, defendants 1 and 2 had also conveyed there right in the properties by a sale deed to the 4th defendant. It was alleged therefore that from 1928 onwards the 4th defendant had been in continuous possession openly as the owner of the lands. The 5th defendant, who claims under the sale deed from the plaintiff's brother, alleged that the plaintiff is not the heir of the original mortgagor. According to him, Marudiah Thevar acting for himself and as guardian of his minor younger brother, the plaintiff, sold the property for valuable consideration and directed the fifth defendant to discharge the said mortgage. It was claimed that the fifth defendant filed an application under S. 83 of the Transfer of Property Act in O. P. 18 of 1920, but as the mortgagee refused to receive the amount, the petition was dismissed. While alleging that the plaintiff had no right of redemption, the 5th defendant claimed that he is the person entitled to redeem the mortgage.