S ROSELY Vs. LAZAR NADAR

JUDGEMENT

(1.) THOUGH the question which arises for consideration in this second appeal is a simple one, it appears to be complicated on account of the trappings, which are usually found in a case from Kanniakumari District. The suit was originally one for redemption of a mortgage dated 11.12.1952, executed by the plaintiff in favour of the first-defendant with reference to an extent of about 20 cents in survey number 3734 in Puthuval Purayidam. The plaintiff got title to the property by a sale in his favour by his mother Nakchithiram under Ex.A-7 dated 7.4.1220. ME. The Plaintiff's mother had in turn purchased the property from one Elias Nadar under Ex.A-4 dated 22.2.1103. On the same day, she executed a mortgage and Kuzhikkonam. deed under Ex.B-1 in favour of one Yovan Vedakkannu with reference to an extent of 1 acre, including the present suit-property. The mortgagee under Ex.B-1 executed a sub-mortgage in favour of Chellamma and Rosali under Ex.A-10 dated 13.10.1110 ME corresponding to 27.5.1935. Thereafter, Yovan Vedakkannu assigned the right obtained by him under Ex.B-1 to one Devadoss on 1.8.1114 ME under Ex.A- 11. The said Devadoss in turn assigned his rights under Ex.A-5 dated 26.8.1118 ME. to one Joseph. From the said Joseph, a release deed was obtained with reference to his right by one Esthar on 30.7.1119 ME under Ex.A- 6. The said Esthar assigned his rights to Yakoovu Nadar on 23.12.1125 ME. under Ex.A- 8. The said Yakoovu Nadar relinquished his rights as chittottidar in favour of the plaintiff on 23.3.1950 under Ex.A- 9. The plaintiff having purchased the mortgagor's rights under Ex.A-7 became the absolute owner as the rights of the mortgagor and the mortgagee merged in him. But, under Ex.A-9 the plaintiff was directed by Yakoovu Nadar to redeem the submortgage, which was in subsistence at that time. The recitals found in Ex.A-9 do not expressly give the details of the sub-mortgage dated 12.10.1110 in favour of Chellamma and Rosali, but it is obvious that the sub-mortgage referred to in Ex.A-9 was only the sub-mortgage evidenced by Ex.A- 10. But the recitals in Ex.A-9 mentioned the sub-mortgagee as Kochukunju and Rosali Ammal Kochukunju happens to be the first-defendant and also the husband of "Chellammal, one of the sub-mortgagees. It is contended by the respondent that Rosali, the other sub-mortgagee was also a wife of Kochukunju, but that is not admitted by the appellant. Whether the appellant is the wife of Kochukunju or not, it is not in dispute that the appellant was the sister of Chellammal and thus closely related to Kochukunju, Ex.A-9 contains a clear direction to the plaintiff to redeem Kochukunju and for that purpose a sum of Rs.50 was retained with him.

(2.) AFTER getting Ex.A-9 in his favour, the plaintiff executed the mortgage Ex.A-1 on 11.12.1952 in favour of the first-defendant. The relevant recitals in Ex.A-1 read thus:"This is given as otti and Kuzhikanam to you for Rs.150. As per the sale deed aforesaid, there is an otti which I have not rendered and that otti right has been assigned to others and ultimately come to you and for that otti amount Rs.49 annas 2 is retained with you and balance I have received in cash. Rs. 100 and annas 14 this day".This is the translation of Ex.A-1 given by learned counsel for the appellant and there is no objection on behalf of the respondent to this translation.

(3.) AFTER the remand, the plaintiff filed an application for amending the plaint by including a prayer for redemption of the Sub-mortgage dated 13.10.1110. The amendment application came to be ordered on 7.12.1977. The trial Court rejected the contentions of the defendants and passed a decree for the third time in favour of the plaintiff. On appeal, that decree was , confirmed by the Sub Judge of Kuzhithurai. The present second appeal is against the said judgment and decree of the learned Sub Judge.