THAMAS Vs. VICTOR

JUDGEMENT

(1.) THE 8th defendant is the appellant in the second appeal. The short facts are as follows: - The father of the plaintiff, Vedamani Nadar, was the owner of 28 cents, while the father of defendants 2 and 3 was the owner of another 22 cents. Both of them jointly executed a mortgage deed under Ex. A -5 dated 10 -4 -1107, ME, in favour of the defendant. In Ex. A -5, it was undertaken to deal with the prior mortgage, Ex. A -1, dated 3 -2 -1076 M.E., which prior mortgage was executed by the predecessors in title of the mortgagor's principal under Ex. A -5 in favour of one Poruthiyudayan. The mortgagee Poruthiyudayan died leaving behind 5 sons. On 7 -4 -1093 M.E., under Ex. A -2, the mortgagor executed a Purukadam deed in favour of the 4 sons of Poruthiyudayan. It is only after these transactions that the mortgagors executed Ex. A -5 directing the redemption of the prior mortgages under Exs. A -1 and A -2. The first defendant paid 2500 fanams, towards the discharge of these deeds. Out of the mortgage amounts, the plaintiff's father being the owner of 28 cents, received 1300 fanams and defendants 2 and 3 together received 1200 fanams being the owners of 27 cents. As per the mortgage, the first defendant is in possession and enjoyment of the suit property as mortgagee.

(2.) WHILE so, Vedamani Nadar, father of the plaintiff, partitioned his property by Ex. A -7, dated 5 -10 -1933, by which the 28 cents fell to the share of the plaintiff. By the deeds dated 6 -10 -1105 and 23 -2 -1109 M.E., the mortgage dated 3 -2 -1076 M.E., is acknowledged and hence the mortgage is not barred by limitation. Under these circumstances, the suit is filed for redemption.

(3.) ON similar lines, the other defendants also filed written statements. It was mainly contended that the right of redemption had become barred.