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2019 Supreme(Ker) 252

P.SOMARAJAN
C. Vijaya Thulasi – Appellant
Versus
D. Sudarsanan – Respondent


Advocates Appeared:
For the Appellants : Sri. P.R. Venketesh Smt. Asha P. Kuriakose
For the Respondents: Sri. M.R. Anandakuttan Adv. Smt. M. Hemalatha Adv. Sri. M. Balagovindan, By Adv. Sri. M. Balagovindan

JUDGMENT :

The plaintiff is the appellant. A suit for redemption of mortgage by the mortgagor/plaintiff ended in dismissal in both the Trial Court and the First Appellate Court. Aggrieved by the said concurrent finding and decree of dismissal of suit, the plaintiffs came up with this appeal.

2. The subject matter of the suit consists of plaint schedule properties having an extent of 22 cents. The relief sought in the plaint is for redemption of the mortgage and also for declaring that Ext.A3 gift deed and Ext.A5 release deed are void. Both the Trial Court and the First Appellate Court found that Ext.A4 document is a lease deed and as such the relief of redemption of mortgage rejected concurrently.

3. The substantial questions to be addressed are:

(i) What actually amounts to the expression “Ottikuzhikanam” ? Whether it stands for lease or mortgage and whether the Trial Court and the First Appellate Court are justified in construing Ext.A4 as a lease?

(ii) What actually makes the difference between an usufructuary mortgage and a lease and what are the factors which makes the difference, when the document is styled as “Ottikuzhikanam”?

4. The plaintiffs claim that Ext.A4 is a mortgage. Ext








































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