Non-redeeming co-owners filing suit for possession.

Plaintiff in O.S. No. 149 of 1979, on the file of the District Munsif’s Court, Thiruvaiyaru, is the appellant in this second appeal.

.2. The material facts which are necessary for the purpose of disposing of this second appeal may be summarised as follows:

Plaint A Schedule property originally belonged to Natesa Pillai, who is the father of the plaintiff and first defendant. Apart from these two sons, Natesa Pillai and two other sons also viz., Subramaniam and Srinivasan. Subramaniam died unmarried and issueless in 1947 and Srinivasan also died in 1970. At the time of his death, Natesa Pillai left his widow Bapu Ammal. She also died in the year 1966.

3. In the year 1943, to meet the marriage expenses of the first defendant and also to discharge certain debts, a mortgage was executed for Rs.400. Thereafter, on 11. 1958, another mortgage was executed by all the brothers and also the widow for Rs.1,000 in favour of one Abdul Hameed with a direction to redeem the earlier mortgage. It was said that the mortgage will be redeemed on or before 11. 1963. It is the case of the plaintiff that the other brothers were not in a position to discharge the debt and, there- fore, on 30.8.1962, he discharged the entire debt and redeemed the mortgage. It is also his case that the other brothers expressed their inability to contribute for redemption and when he undertook to redeem, the other brothers agreed that they will have no right over the property. It is said that an unregistered release deed was also executed by the brothers evidencing the same. After redemption, plaintiff was in exclusive possession of the entire property. While so, first defendant, with his wife and children, who are other defendants in the suit, came to the building and occupied the B Schedule portion. Plaintiff was under the impression that they had come as guests, and thereafter they refused to vacate. The suit was, therefore, filed for declaration that the B Schedule portion belonged to the plaintiff, and direct the defendants to deliver vacant possession of the property. In the written statement filed by the first defendant, he disputed the claim of the plaintiff that he is the owner and he also denied having executed.

.4. It is also his case that the redemption though stands in the name of the plaintiff, was with common funds. Plaintiff being more literate and local resident, was authorised by other sharers to redeem the property and, therefore, according to him, the redemption goes to the benefit of all the brothers. The allegation that he is in occupation of B Schedule was admitted, but it was said that it was in his own right and, therefore, he was not liable to be dispossessed.

5. On the above pleadings, the trial Court suggested issues and came to the conclusion that the mortgage was redeemed by the plaintiff. Ex.A-4 relied on by him cannot be admitted in evidence, being an unregistered document. Further, during that time, their mother was also alive. Since she has also not joined, Ex.A-4 will have no value, and, on the death of the mother, her right has devolved on the brothers. Further, the claim of the plaintiff that he is exclusive possession and has prescribed title was also found against. The trial court was of the view that even though when the plaintiff discharged the entire debt, the first defendant is in possession of the building as a co-owner and, therefore, it cannot be adverse to him. The suit was dismissed.

6. Aggrieved by the judgment, plaintiff preferred A.S. No.121 of 1980, on the file of Subordinate Judge’s Court, Thanjavur. The lower appellate court also dismissed the appeal. The concurrent judgment is challenged in this second appeal.

.7. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:

.“Was not the lower appellate court in error in holding that Ex. A-4 cannot be used for collateral purpose?”

8. Even though the substantial question of law raised is only