A. Hariprasad, J.

1. Aggrieved by the concurrent findings in a suit for redemption of mortgage, the defendants have come up in this second appeal. Plaintiffs 3 to 8 are the respondents in this appeal.

2. Heard Smt. Bindu, learned counsel for the appellants and Sri. G.S. Reghunath, learned counsel for the respondents.

3. Shorn off unnecessary details, the facts relevant are as follows :

Plaint schedule property belonged to one Appilose Haris. Plaintiffs 1 to 4 are siblings. Appilose Haris was plaintiffs' mother's sister's son. Haris was serving the Military and he remained a bachelor throughout his life. After retirement from the service, he resided along with the plaintiffs. While living with the plaintiffs, he executed Ext.A1 mortgage deed in favour of the defendants on 04.03.1963. While so, on one day, he left home and thereafter, his whereabouts were not known to the plaintiffs. Haris had gone missing about 15 years prior to the institution of the suit. Therefore, he should be presumed to be dead on the date of suit. According to the plaintiffs' assertion, they are the legal heirs of Haris and therefore, they are entitled to redeem the mortgage from the 1st appellant (1st defendant). Despite making requests, the 1st appellant did not allow redemption of the mortgage. The defendants committed waste by cutting and removing trees. Therefore, the plaintiffs sought to realise compensation for waste committed in the mortgaged property. Pending suit, the plaintiffs 1 and 2 died and their legal representatives were impleaded as additional plaintiffs 5 to 8.

4. The defendants filed a written statement contending that the plaintiffs have no right over the suit property. According to them, the suit is bad for non-joinder of necessary parties. They asserted that Haris was alive on the date of suit. Contentions in the plaint that Haris left home about 15 years ago and his whereabouts were not known are denied. Presumption of death in Section 108 of the Evidence Act, 1872 (for short, the Act) is not available in this case. Plaintiffs have no right to redeem the mortgage. The appellants claimed Kudikidappa right and tenancy right in respect of the property and they sought for a reference under Section 125 (3) of the Kerala Land Reforms Act, 1963 to the Land Tribunal concerned and they further prayed for dismissal of the suit.

5. The trial court framed relevant issues. One of the issues was whether the defendants are entitled to get Kudikidappa right in respect of the plaint schedule property. That was referred to the Land Tribunal, Nedumangad in R.C.10 of 1990. The Land Tribunal found that the question of Kudikidappa right could be decided only at the time of redemption of the mortgage as provided in Explanation IV to Section 2(25) of the Kerala Land Reforms Act.

6. After considering other issues, the trial court decreed the suit rejecting the contentions raised by the appellants.

7. The lower appellate court, on re-appreciating the evidence, agreed with the findings of the trial court and dismissed the appeal. Hence the defendants are before this Court.

8. Substantial questions of law framed are as follows :

1. Can it be said that the plaintiffs are the legal heirs of Appilas Haris especially when they claim to be the children of the mother's sister of Appilas Haris, which is the last category under Section 47 and 48 of the Indian Succession Act, especially when there is no averment in the plaint to the effect that none of the legal heirs under clause 1 and 1 to 7 under clause 2 are in existence?

2. Was not the court below wrong in decreeing the suit for redemption simpliciter without a prayer for declaration that the plaintiffs are the legal heirs entitled to redeem the property?

3. Were not the courts below wrong in casting a burden of proof on the defendants especially when the plaintiffs had failed to discharge the initial burden?

9. Learned counsel for the appellants contended that the courts below did not consider the scope of Section