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2007 Supreme(Ker) 209

Judges : M.SASIDHARAN NAMBIAR
Abubaker - Appellant
Versus
Kadija Ummal - Respondent
Case No : S.A.No. 546 of 1993
Decided On : 04/02/2007
Advocates Appeared :
For the Appellant : G. Unnikrishnan, G.P. Shinod V. Manu & Ram Mohan, Advocates. For the Respondent: K.L. Narasimhan, C.C. Xavier & Anil Xavier, Advocates.

Headnote:

Transfer of Property Act 1882 - Section 92 - Limitation Act 1963 - Article 113 - Kerala Land Reforms Act 1964 - Section 4A(1)(c), 125(3) - What is the legal effect of a co-mortgagor redeeming the mortgage, on the right of a non-redeeming co-mortgagor - Held, Respondent is not entitled to contend that she is deemed to be a tenant as provided under S.4A (1)(c) of Kerala Land Reforms Act - As it was not a waste land and no sustainable plea could be raised under S.4A(1)(c), there was no necessity to refer the question to the Land Tribunal, as rightly found by the trial court - Evidence establish that respondent is not a deemed tenant and is not entitled to the protection of Kerala Land Reforms Act - Appellants are entitled to a decree for partition and allotment of their 4/14 shares in the plaint schedule property on payment of their share of the mortgage money - Judgment and decree passed by the first appellate court in A.S. are set aside - Second Appeal Allowed.

Judgment :-

What is the legal effect of a co-mortgagor redeeming the mortgage, on the right of a non-redeeming co-mortgagor? This is the question to be decided in the second appeal.

2. Plaintiffs in a suit for redemption and partition before Munsiff Court, Thiruvananthapuram are the appellants. Defendant is the respondent. In the suit, appellants sought partition and allotment of 4/14 shares by metes and bounds after redemption of Ext.A3 mortgage schedule dated 18-2-1097(M.E.) over that portion of the plaint schedule property. Plaint schedule property is 21 cents in survey No.447-A of Irammuttom village of Thiruvananthapuram Taluk. The property admittedly originally belonged to Shalha Ummal and her daughter Aisha Ummal under Ext.A2 sale deed dated 18-2-1097 (M.E.). It was on the date of the sale deed itself, Shalha Ummal and Aisha Ummal jointly executed Ext.A3 registered mortgage deed after receiving the mortgage money of Rs.1250/- from Captain Mohammed Mohammadeeyan Sahib. Shalha Ummal had, apart from Aisha Ummal, two daughters Pathumma and Saina Beevi and three sons Mohammed Kasim Pillai, Meeran Pillai and Aboobaker. On the death of Shalha Ummal, her right devolved on her children. Aboobacker, her son, under Ext.A1 sale deed dated 25.7.1950, assigned his 2/14 shares in favour of plaintiffs who are the legal heirs of Mohammed Kasim Pillai, who inherited 2/14 shares as the son of Shalha Ummal. Plaintiffs thereby obtained 4/14 shares. The mortgagee Captain Mohammed Mohammadeeyan Sahib died and his mortgage right devolved on his son Abdul Khader who in turn executed a sub mortgage in favour of Mohammed Sali for Rs.250/- in 1116 (M.E.) as per registered deed 3428 of 1116. After the death of Abdul Khader, his right devolved on his three children Asma Beevi, Abdul Khader Sahib and Sainulabdeen Sahib. In 1950, the intermediary right of Asma Beevi was released as per document No.3727/1950 and the respondent as per registered receipt 2306/1972 released the remaining 2/3rd right. Under Ext.B5 assignment deed dated 26.6.1969, Sainalabdeen assigned his rights in favour of respondent in 1972. Under Ext.B13 gift deed respondent transferred her rights in favour of her children Mohammed Hussain and Mohammed Salim on 4.11.1982. The jenmom right of Aisha Ummal over 12 cents of the property, out of Ext.A2 property, was assigned in favour of Sainulabdeen under Ext.B6 sale deed 5081/1950 dated 1-12-1950. Sainulabdeen got assignment of the share of Saina Beevi, the daughter of Salhaummal who had 1/14 shares over the property under Ext.B7. Sainulabdeen instituted O.S.138/1951 for redemption of the sub mortgage and pursuant to the settlement of the dispute obtained registered document 771/1951 from Mohammad Sali and obtained possession of the entire plaint schedule property in 1951. Sainulabdeen then created a mortgage in favour of Mohammed Sali as per document No.2476/1957 for Rs.3200/- and thereafter that mortgage right vested in Haboosa Beevi who assigned that mortgage right in favour of respondent as per registered document 3179/1965. Sainulabdeen then obtained Rs.1800/- and executed a mortgage deed 3191/1965 in favour of respondent. It is inclusive of that right respondent got assignment of the rights under Ext.B5 from Sainulabdeen. Respondent thus obtained rights over the plaint schedule property. The case of appellants was that they are entitled to get their share separated and on such partition, they are prepared to deposit the proportionate mortgage money of Rs.337/- due under Ext.A3 mortgage. A preliminary decree was sought. Respondent in the written statement contended that appellants are not entitled to redeem the mortgage on payment of the proportionate mortgage money as it was barred by time and the mortgagee had made valuable improvements worth Rs.50,000/- and she has been in possession of the property as full owner. As Sainulabdeen, Abdul Salam and Abdul Jaleel had absolute right over the property, plaintiffs are not entitled to the d













































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