OLAKKAT MOIDUNNI HAJI Vs. POOTHERRI ILLOTH MADHAVAN NAIR

JUDGEMENT

(1.) Both these appeals raise a common question and may be disposed of together.

(2.) The jenmi of certain properties which were held on kanom by different tenants under different demises mortgaged the equity of redemption to the respondents by a simple mortgage for Rs. 6,000 by Ex. D, dated 9 December, 1915. The appellants are two of these tenants. The appellant in S.A. No. 1658 of 1928 had been holding under a demise, Ex. VII, dated 29 September, 1904, for Rs. 400 and the appellant in S.A. No. 1714 of 1928 under a demise, Ex. A, dated 1909, for Rs. 500, the respective properties in those cases. Subsequent to the simple mortgage of 1915, the appellant in S.A. No. 1658 of 1928 took a renewed demise Ex. VIII in 1917 for Rs. 700 on payment of a further advance of Rs. 300 and the appellant in S.A. No. 1714 of 1928 took a renewed demise Ex. IV in 1920 for Rs. 800 on payment of a further advance of Rs. 300.

(3.) The respondents-simple-mortgagees brought a suit O.S. No. 28 of 1921 on their mortgage impleading the mortgagor (jenmi) and the various kanomdars including the present appellants and obtained a decree for sale subject to the encumbrances prior to their own mortgage which were mentioned in Schedule B. It may be noted that the mortgagees had mentioned in the plaint that there were several subsequent encumbrances including the appellants renewals, Exs. VIII and IV, and stated that being subsequent to their mortgage they could not prevail over their mortgage. The appellant in S.A. No. 1658 of 1928 (55 defendant) set up in his written statement his renewal (Ex. VIII) and claimed that the sale on the mortgage could only be held subject to those rights. But beyond putting in these written statements none of the defendants including the present appellants pressed the right based on the renewals in that suit. No issue was raised about them and no mention is made of them in the judgment and decree which simply directed that the sale will be held subject to the prior encumbrances only. Nothing was also said about the right of redemption which the subsequent encumbrancers undoubtedly had if they cared to exercise it. It is fair to infer that the subsequent encumbrancers including the appellants did not for obvious reasons care to redeem the respondents mortgage and did nothing beyond putting in written statements asserting their superior rights to hold the property, till the end of their 12-year terms. In due course the respondents-mortgagees brought the properties to sale and in 1923 purchased them themselves for about Rs. 5,000 out of a total decree amount of about Rs. 18,000. The balance of the decree amount which I am informed amounts now to Rs. 11,000 has not been realised.