Usufructuary mortgage redeemed by stranger.

This Second Appeal by the defendant, who has lost in both the Courts below, raises an interesting question of law. The suit purports to be one for possession on redemption of a usufructuary mortgage. The property agricultural land originally belonged to one Shenbagathammal who had othied it to three brothers for a sum of Rs. 450 under a registered deed dated 9th October, 1936, Exhibit A-1, being the registration copy of the deed. The mortgagees had entered into possession pursuant to the othi in their favour. By a registered sale deed dated 7th July, 1937. Shenbagathammal sold the property to one Muthukumaraswami Pillai for a consideration of Rs. 650, a sum of Rs. 450 being reserved with the vendee for discharge and redemption of the othi. The plaintiff is the first wife’s son of the vendee. He had on the first wife’s death taken a second wife by name Chellathammal. Sometime after the purchase and before redemption, the vendee appears to have become mentally unbalanced and was not heard of thereafter. He is presumed to be dead. Though Chellathammal had no proprietary interest in the property, on 30th July, 1941 she executed a sale deed of the property in favour of one Maharasi Ammal for a sum of Rs. 600, Rs. 450 of the consideration being left with the vendee Maharasi Ammal for redemption of the othi evidenced by Exhibit A-l. This Maharasi Ammal had earlier taken a registered sub-othi for a sum of Rs. 150 on 22nd January, 1941 under one of the mortgagees, Exhibit A-4 being the registration copy of this sub-othi. The sale in favour of Maharasi Ammal completely ignored the rights of the plaintiff and there is no dispute that Chellathammal had no title to transfer. The plaintiff at the time of the sale deed was a minor aged about 12 years. The rights of the plaintiff were immediately asserted by his maternal uncle on his behalf and there is evidence of a mediation pursuant to which Maharasi Ammal gave a yadast or a memorandum of agreement dated 5th April, 1943, Exhibit A-16. This document refers to the purchase by the executant Maharasi Ammal of the suit property from Chellathammal and her redemption of the same at Rs. 450. It then contains a covenant that the executant will enjoy the property in lieu of interest for the sum of Rs. 450. It then contains a covenant that the executant will enjoy the property in lieu of interest for the sum of Rs. 450 paid for redemption and at the end of the year, if the sum of Rs. 450 was paid, she would give up the property in accordance with the decision of the mediators. It is recited therein that in terms of the decision, she would meanwhile be enjoying the property as under othi. The property was not taken possession of pursuant to the yadast within the year as contemplated therein nor subsequently. On the death of Maharasi Ammal, the present defendant, her minor son, entered into possession and is in possession.

It is in these circumstances that the suit has been filed by the plaintiff for possession as on redemption of an othi. The plaint specifically proceeds on the basis that the original othi was redeemed paying off the mortgagees. Only, the allegation is that the transaction of sale by Chellathammal and the redemption are all benami and colourable, the redemption having been out of monies belonging to the plaintiff’s family. Reference is made to the yadast of 1943 on the covenant therein acknowledging the liability to be redeemed on payment of the othi amount. The right of redemption is stated to have accrued to the plaintiff by reason of the covenant contained in the yadast, Exhibit A-16. The plaint in the paragraph setting out the cause of action specifically refers to the redemption of the original othi on 14th August, 1941 and the covenant dated 4th April, 1943 agreeing to hand over possession of the property on receiving the othi amount. The suit was filed on 5th February, 1960 several years after the plaintiff had become a major. The main plea for the defendant was one of