NALLAMMAL Vs. SIVANI AMMAL

JUDGEMENT

(1.) THIS appeal is preferred by the plaintiff in the suit against the judgment of Natesan, J. The suit was filed for redemption and partition of one -third share of B schedule property of an extent of 1 acre and 98 cents of nanja. The short facts are : The property belonged to one Karutha Pichan Ambalam. He had three sons, Periakaruppa, Chockanandi and Velu, and two daughters, Peria Karuppayee and Nallammal. Nallammal is the plaintiff. On 22 -10 -1918, under Ex. B -2, Karutha Pichan Ambalam othied the suit property in favour of one Amir Mia Sahib for Rs. 1,000. Subsequently, Chockanandi, who was entitled to one -third of the suit item, sold his one -third share to Periakaruppayee, his sister, Rs. 1,000 under Ex. A -1 on 18 -3 -1936. Subsequently, under Ex. B -10, dated 26 -8 -1942, Velu, another son of Karutha Pichan Ambalam sold his one -third share to his brother Chockanandi for Rs. 400. Under Ex. B -4, dated 26 -8 -1942, Periakaruppa, who was entitled to one -third share, and Chockanandi, who was entitled to another one -third share by virtue of his purchase under Ex. B -10, created a second mortgage of the entire extent of the property to the heir and son of the othidar Amir Mia Sahib for Rs. 260. They again created another othi under Ex. B -1 dated 5 -7 -1943, in favour of one Subbiah Pillai for Rs. 2,000 and directed him to discharge the original othi Ex. B -2 and the subsequent melothi Ex. B -4, dated 26 -8 -1942. Subbiah Pillai discharged the two othies Exs. B -2 and B -4 and obtained the endorsement Ex. B -3 and Ex. B -5 dated 6 -7 -1943. On 20 -8 -1947 under Exhibit B -6 Velu and Alugu Pillai Ammal, wife of Chockanandi, sold to Subbiah Pillai the property for Rs. 3,000. Subsequently, under Ex. B -8, dated 22 -4 -1962, Subbiah Pillai sold the property to the first defendant and his wife, the second defendant, of an extent of 1 acre and 48 cents for Rs. 3,400. On the same date, under Ex. B -9, Subbiah Pillai and others sold to the third defendant the remaining 50 cents for Rs. 1150. The present suit for redemption of one -third share of B schedule property was filed by the plaintiff on 22 -8 -1962.

(2.) THE plaintiff claimed one -third right of Karutha Pichan Ambalam, as Peria Karuppayee, purchased one -third share of Chockanandi under Ex. A -1 out of the income from her husband's estate and as she is the co -widow of Peria Karuppavee. The only question, therefore, is whether the plaintiff is entitled to redeem and claim partition of one -third share of the B schedule property. That she is entitled to one -third share of the mortgagor's right is also not disputed. But the point that is taken is that the plaintiff lost her right due to adverse possession, as two of the mortgagors Periakaruppa and Chockanandi created a second mortgage under Ex. B -4 on 26 -8 -1942, and a third mortgage under Ex. B -1, dated 5 -7 -1943, and ultimately sold the property under Ex. B -6 on 20 -8 -1947. It was urged that as the two mortgagors purported to deal with the entire property, they should be deemed to have been in adverse possession of the right of equity which belonged to the plaintiff and in any event when the property was sold by the two mortgagors to the exclusion of the plaintiff it was submitted that the right, if any of the co -mortgagor plaintiff would last only for 12 years from that date, and as the plaintiff's suit is beyond 12 years from that date, her remedy was barred by time.

(3.) THE two Full Bench judgments that are referred to and elaborately dealt with by the learned Judge are V. Champaka v. Sivathanu Pillai, 1964 -1 Mad LJ 161 : (AIR 1964 Mad 269) (FB) and Rukmani Ammal v. Venkatarama Iyer, 1964 -2 Mad LJ 1 : (AIR 1964 Mad 281) (FB). The Full Bench in Champaka v. Sivathanu Pillai, 1964 -1 Mad LJ 161 : (AIR 1964 Mad 269) held that a redeeming co -mortgagor has two distinct rights in respect of moneys paid by him in excess of his share for discharging a common mortgage; (i) a right to step into the shoes of the mortgagee satisfied by him: and (ii) a right to recover contribution. Dealing with the right of the non -redeeming co -mortgagor, the Full Bench held at p. 166 of Mad LJ : (at p. 272 of AIR) : -