D CHELLAYYANNADAR Vs. SULOCHANA THANKACHI

JUDGEMENT

(1.) THE above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Kuzhithurai dated 29.9.1982 in A.S. No.48 of 1981, allowing the appeal and granting the relief of redemption of the "B" schedule property in its entirety as prayed for as against the preliminary decree for redemption of 57.46 cents only granted by the trial court.

(2.) THE controversy among the parties to this proceedings is in a narrow compass. THE plaintiff's mother executed a mortgage for plaint "A" schedule property in favour of the defendant's wife. THE mortgage was in possession till her death and after her death, her husband, the first defendant and her children defendants 2 to 5 continued to be in possession. THEre was a partition in the plaintiffs family and during the time of partition it was noticed that the total extent of the landed property as well as the survey number has been wrongly mentioned in the mortgage deed and necessary follow up action was taken. In the family partition among the plaintiff's family Plot 1 measuring 55 cents was allotted to the plaintiff and her children in F Schedule and the plaintiff purchased thereafter adjacent plots 2 and 3 each with an area of 20 1/2 cents from A and C schedule allottees in the partition and therefore she is entitled to 96 cents comprised in plots 1 to 3 as shown and appended to the partition deed. It is to redeem this property the plaintiff has filed O.S. No.105 of 1980.

(3.) THE trial court by judgment and decree dated 8.4.1981 accepted the plea of the defendants and passed a preliminary decree as noticed earlier for the redemption of 57.46 cents only Not satisfied with the decree passed by the trial court the plaintiff persued the matter on appeal in A.S. No.48 of 1981 and defendants 1 and 2 viz., respondents 1 and 2 in the appeal before the first appellate court filed also cross-objection questioning the correctness of the findings of the trial court giving the benefits of Act 40 of 1979 to the plaintiff. THE lower appellate court while allowing the appeal, sustained the claim of the plaintiff for the redemption of the entire extent of property as prayed for and also confirmed the findings of the trial court that the plaintiff is entitled to the benefit of Act 40 of 1979 and therefore entitled to redeem the mortgaged property without paying the amount but on payment of only the cost for improvements affected and to be determined, which was relegated to the final decree proceedings. Aggrieved the defendants 1 and 2 have filed the above second appeal.