M KORU KUTTY Vs. VALIKATHODIYIL AHAMMAD

JUDGEMENT

(1.) This is a second appeal from the judgment of the Subordinate Judge of Ottapalam, reversing the judgment of District Munsif of Tirur. The plaintiff is suing for the redemption of a mortgage. He and the defendant were at one time joint mortgagees. He puts his right to redeem the mortgage mainly on the ground that he was a purchaser or assignee of the rights of certain legatees under the Will of the mortgagor. It was alleged by the defendant that the Will was not valid, and so in effect he said : "you have no title under the Will. Whoever is in a position to redeem it, you are not."

(2.) The District Munsif found as a fact that the Will was duly executed and was genuine. The Subordinate Judge found as a fact that the Will was not duly executed. Sitting in Second Appeal, it is not open to us, I regret to say, in this case, to review the judgment of the Subordinate Judge on a question of fact. The plaintiff however, said : "I have got another ground on which I am entitled to redeem, and that is, I have taken a fresh lease or a renewal of the lease of the property from the jenmi," and he says, that he has raised that in his plaint.

(3.) The defendant replied to it by saying that this demise was invalid and could not in any way be enforced. In framing issues, there was an issue framed : Is the suit as brought not maintainable?" but there was no specific issue directed as to whether the plaintiff had a right to redeem under this new demise.