The Otti mortgagee's right of pre-emption is subject to strict enforcement of formalities, and the right is feeble and easily lost if not diligently observed. Additionally, the association with co-plaintiffs who have no right to pre-emption can disqualify the claimant from asserting pre-emption.

1. These appeals arise from two suits O.S. Nos. 285 of 1953 and 38 of 1954 on the file of the Addl. District Munsiff of Kozhikode. As the two suits have been tried and disposed of jointly by one judgment, it is convenient to refer to the parties with reference to one of the suits; and hereinafter they will be referred to by their rank in the first-mentioned suit.

2. The material facts of the cases are as follow:

O.S. No. 285 of 1953 is a suit for redemption of a mortgage. The property originally belonged to the tarwad of the 2nd defendant. On March 12,1877, the then karnavan of the tarwad mortgaged the same to Kunhitheyi Amma as per an "Otti" deed (Ext. B1). By assignment the mortgage became vested in the 1st defendant. The 2nd defendant, having become the last survivor in his tarwad, sold the property to the plaintiff on March 2,1953, as per Ext. B2. The plaintiff issued a notice on March 6,1953 to the 1st defendant demanding surrender of the property on redemption of the mortgage, and instituted the suit on March 14,1953. The 1st defendant was personally served with summons on March 27,1953; but she remained ex parte. On July 6,1953 she assigned her mortgage to defendants 3 and 4, who got themselves impleaded as supplemental defendants in the suit. On November 18, 1953 the 1st defendant applied for setting aside the order declaring her ex parte; the same was allowed on December 7,1953 on which day, she and her assignees filed written statements in the case asserting a right of pre-emption and consequent non-liability to surrender the property to the plaintiff.

O.S. No. 38 of 1954 is a suit for pre-emption instituted on January 25, 1954 by the defendants 1, 3 and 4, in 0, S. No. 285 of 1953 against the plaintiff and the 2nd defendant therein to enforce pre-emption in respect of the sale to the plaintiff (under Ext. B2). The basis of their claim for the preferential right was the Otti mortgage in favour of the 1st defendant which has been assigned by her to defendants 3 and 4.

3. The learned Munsiff decreed the suit for pre-emption in favour of defendants 3 and 4 directing them to deposit in court before March 30, 1955, for payment to the plaintiff the consideration he had paid for the sale; and dismissed the suit for redemption while observing that the mortgage debt should have been deemed discharged entirely, under S.9A of the Madras Agriculturists' Relief Act, 1938, by the enjoyment of the property by the mortgagee for over 30 years, wherefore the plaintiff would have been entitled to a decree for redemption without payment, but for the enforcement of pre-emption in the connected suit.

The appeals preferred by the plaintiff before the Subordinate Judge, Kozhikode, met with no success. Hence these Second Appeals.

4. The material question that arises in these appeals is the right of an Otti mortgagee for preemption in respect of the mortgaged property, and the conditions for its enforcement.

5. Etymologically, the word "Otti" means 'gave place to another'. In law of property, Otti is a kind of usufructuary mortgage, current throughout the State of Kerala and the adjoining districts of the States of Madras and Mysore, under which the mortgagee is given possession of the mortgaged property to realise the interest on the mortgage money from the income of the property. In the southern districts of Kerala, it is nothing but a usufructuary mortgage with a personal covenant for repayment of the mortgage money. The entire usufruct of the property involved in the Otti is invariably taken by the mortgagee in satisfaction of the interest on the mortgage amount; and the transaction is redeemable on demand, except in the case of wet lands which can be redeemed only in the interval between the commencement of an agricultural year and the harvest of the previous crop. (See Bhagavati Narayani v. Valliamma Kaliyamma (14 Trav. L. R.218) and Korathu v. Cheria (12 Trav. L.R. 111).)

But, in the northern districts [which constituted the Distri