The legal heir's right to redeem a mortgaged property and the acceptance of a genuine Will as evidence of title.

1. This appeal is directed against the Judgment and decree of the learned Subordinate Judge, Thanjavur in A.S. No. 124 of 1993 confirming that of the learned District Munsif, Thanjavur in O.S. No. 461 of 1990. The first defendant in the suit is the appellant in the above Second Appeal.

2. The plaintiff filed the above suit, for the relief of a preliminary decree for redemption directing the defendants to put the plaintiff in possession of the property-hypotheca within a time to be stipulated by the court and in default, to pass a final decree and to direct the property being delivered and also for future profits to be paid at the rate of Rs. 400/- per month from the date of the plaint till actual delivery is given to the plaintiff.

3. According to the plaintiff, the suit properties in T.S. No. 1264 originally belonged to one Sivasankaran Pillai, brother of the plaintiff herein. He had othied the same in favour of the first defendant on 19.8.1977 for a valuable consideration of Rs. 7,000/-. The usufructuary mortgagee was duly put in possession of the properties. The defendants 2 to 5 were the tenants under the first defendant. Sivasankaran Pillai died on 22.7.78 and while he was in a sound and disposing state of mind, he had executed his last Will dated 3.7.1978 in favour of the plaintiff bequeathing the hypitheca in addition to the amounts due to him from banks. The plaintiff would further submit that he had collected the amounts due as contemplated in the Will and the Will had also come into effect immediately after the death of the testator. The plaintiff further submits that he has also changed the Municipal registry in his name in respect of the suit property. The first defendant, according to the plaintiff, wanted the plaintiff to sell the property to him. As the plaintiff was not agreeable for the same, the first defendant got enraged and he had instigated the plaintiffs close relatives to issue a notice to the plaintiff and others claiming interest in the hypitheca. The said notice was suitably replied by the plaintiff and first defendant being disappointed in not getting the property, was not prepared to receive the amount due under the othi. The plaintiff tendered the amount to him but the first defendant had refused to receive the same. The plaintiff has deposited the amount into court and the first defendant was liable to pay profits from the date of deposit of amount due to the first defendant and also to surrender possession of the property.

4. In the written statement filed by the first defendant, it was contended that he has constructed a thatched house out of his own fund in the vacant site. He has spent Rs. 5,250/- for the construction and further he had spent a sum of Rs. 3,750/- towards major repairs and he is entitled to recover the said amounts from the plaintiff. The defendant further contended that the plaintiff has to prove his title to the suit property since the rival claimants were taking steps against him. In fact, the first defendant had received a notice dated 7.5.1984 through his counsel. The contention that the first defendant had induced the close relatives of the plaintiff was denied. The allegation that the defendants 2 to 5 are the tenants under the first defendant was false.

5. In the written statement filed by the 6th defendant, it is contended that he is the tenant of the building paying Rs. 25/- per month as rent to the first defendant. The building in his occupation was constructed by the first defendant with the knowledge and consent of the plaintiff.

6. On a consideration of the said pleadings, oral and documentary evidence, both the courts concurrently held that the plaintiff was entitled to redeem the suit property and the objections taken by the first defendant were without any basis. With the result, the suit for redemption was decreed as prayed for. Hence, the present appeal.

7. The learned counsel for the appellant has strenuously contended that the plaintiff ought to