K AMBU NAIR Vs. ECKELU NAIR

JUDGEMENT

(1.) Defendant 1 is the appellant. This appeal arises out of a suit tiled by the plaintiff to redeem a mortgage. The plaintiff prays that defendant 1 may be directed to surrender possession of the properties mentioned in Sch. A to the plaint to the plaintiff on payment by him within a time to be fixed by the Court of such amount as may be found due to defendant 1 towards the usufructuary mortgage referred to in the plaint on taking an account of the amounts received by defendant 1 and the amount which he is liable for in respect of damages for waste committed on the properties and to hand over to the plaintiff all the title deeds, rent deeds and other documents connected with the property. The plaintiff also claims mesne profits at the rate of 2,000 paras of paddy per year.

(2.) The case for the plaintiff is that the properties described in Sch. A to the plaint originally belonged to defendant 2's tarwad, that the said properties along with two other items of property held by the tarwad on arwar or mortgage right were usufructuarily mortgaged by the tarwad to defendant 1's tarwad for Rs. 21,157-2-2 under a registered mortgage deed dated 8 December 1892 but that the properties were being enjoyed by defendant 2's tarwad as tenants after the mortgage, that defendant 2's tarwad having fallen into arrears of rent, defendant 1's tarwad filed O S. No. 22 of 1898 in the Sub-Court of South Kanara for recovery of possession of the properties and arrears of rent or in the alternative for recovery of the mortgage amount, that O.S. No. 22 of 1898 was ultimately compromised between the parties and a rajinama decree was passed on 2 January, 1899 to the effect that if Rs. 31,000 which was fixed as the amount due on the mortgage for principal and arrears of rent and costs is paid within three years from the date of the decree, the mortgagor was to redeem the properties from the mortgage, that in default of such payment the mortgagee was to recover possession of the properties in execution of that decree and enjoy the same on usufructuary mortgage right, and that if Rs. 31,000 was paid at any time thereafter, possession was to be given up to the mortgagor together with all the mortgage right, that it was also provided that for 3 years after the date of the rajinama decree the mortgagor should be enjoying the properties paying assessment thereon and pay the defendant 1's tarwad and annual rent of 2000 paras of paddy, that defendant 2's tarwad having failed to pay the rent as mentioned, in the rajinama decree, the mortgagee obtained possession of the properties on 16 March 1900, that there was a second mortgage for Rs. 1675, on which the mortgagee obtained a decree for sale of the equity of redemption in O.S. No. 44 of 1912, that in execution of a personal decree against defendant 2's tarwad the right of the mortgagor was purchased by one Subraya Kamathi in 1909 subject to the usufructuary and simple mortgage rights held by defendant 1's tarwad over the said properties and Subraya Kamathi conveyed his right to the plaintiff on 22 April, 1913, that the plaintiff who has thus become absolutely entitled to the equity of redemption deposited Rs. 6,115-12-0 being the amount due to defendant 1 as per decree in O.S. No. 44 of 1912 and redeemed the simple mortgage dated 7 December 1901, that as regards the two items of property sub-mortgaged under the deed dated 8 December 1892, they were redeemed and a portion of the mortgaged properties was acquired by the Local Fund Department and the mortgagee received two sums of Rs. 490 and 450 towards the mortgage for which credit has to be given, that the mortgagee has been committing waste by cutting timber trees and pulling down buildings etc., that he is liable for damages to the extent of Rs. 6,700 as per particulars given in the plaint which amount also is to be deducted from the amount due under the mortgage and that when the plaintiff applied in execution to get back possession of the properties as mentioned in the rajinama decree, the defendants contended that execution was barred by limitation and this contention was upheld both by the lower Court and the High Court. The plaintiff, therefore, files this suit to redeem the properties.

(3.) Defendant 1 (mortgagee) who is the contesting defendant admits the mortgage set out in the plaint and the decree in O.S. No. 22 of 1898. He admits having taken possession of the properties covered by the decree in execution of it. He also admits that the plaintiff became the purchaser of the equity of redemption but disputes that the sale certificate relied on by the plaintiff covers the entire mortgage property. He denies, however, that the plaintiff has any subsisting right to redeem on the ground that the original mortgage had been superseded by the decree in O.S. No. 22 of 1898 and that the plaintiff's only remedy is by execution which having become barred, the right to redeem is extinguished. He admits that he got a decree in O.S. No. 44 of 1912 on the simple mortgage of 7 December 1901 and that the mortgage has been redeemed. Ho denies that his getting the decree saves the plaintiff's right to redeem or gives him any cause of action. He denies that the property acquired by the Local Fund Department under the Land Acquisition Act formed any portion of the mortgage properties. He denies also that some other items which he specifies in para. 9 of the written statement formed part of the mortgage. He raises certain objections to the schedules in paras. 10 and 11. He denies that he committed any waste but on the contrary states that he and his ancestors effected improvements for about Rs. 30,000 of which sum he claims payment before redemption.