The rights of a usufructuary mortgagee do not crystallize into a title without payment of the mortgage debt; thus, a suit for declaration is unsustainable once the right to redeem is extinguished.

JUDGMENT :

S. SOUNTHAR, J.

1. The third defendant, who is the daughter of the plaintiff and who was transposed as appellant in the first appeal in the place of the deceased plaintiff, is the appellant herein. The suit is for declaration of title and possession of the plaintiff over the suit property and for consequential injunction restraining the defendants from interfering with the plaintiff's possession over the suit property. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the appellant has come by way of this Second Appeal.

2. According to the plaintiff, the suit property originally belonged to one Sudalaimadan Nadar and after his death, the property was inherited by his three sons, namely, Kuttikan Nadar, Thangiah Nadar and Chelliah Nadar. The said three persons have mortgaged the suit property in favour of the plaintiff, Chellamma Nadachi under usufructuary mortgage deed, Ex-A1, dated 23.11.1945. Thus, the plaintiff has been in possession and enjoyment of the property from the date of mortgage. Subsequently, the first defendant in the suit Thanka Nadachi, wife of Chelliah Nadar attempted to interfere with the plaintiff's possession and hence, a suit was laid against the first defendant in O.S.No.218 of 1991 and an ex parte decree for injunction was passed in favour of the plaintiff. It was claimed by the plaintiff that the mortgage was not redeemed by the mortgagors or their legal representatives. It was also claimed that the time limit for redeeming the mortgage expired on 22.11.1155 (Travancore era), ie., on 22.11.1980 and therefore, the right to redeem the property got extinguished. In view of the fact that the right of the defendants to redeem the suit property got extinguished, the plaintiff sought for declaration of title and for consequential injunction.

3. The defendants 1 and 3 remained ex parte and the suit was resisted by the second defendant, Thiyagarajan. The second defendant contended that the plaintiff was never in possession of the suit property. He claimed that he purchased the northern nine cents of the suit property from the first defendant under a registered sale deed, dated 23.02.2000 marked as Ex-B4 and has been in possession and enjoyment of the said portion. It was also claimed that his vendor, first defendant, got absolute right over 1/3 portion of the suit property by virtue of a gift deed executed in her favour by her children after the death of the first defendant's husband, Chelliah Nadar. It was also claimed that the mortgage deed referred to in the plaint was not at all given effect to and acted upon.

4. It was further claimed by the second defendant that the third defendant, daughter of plaintiff, purchased 2/3 of the suit property on the southern side from Kuttikan Nadar and Thangaiah Nadar by way of a registered sale deed, dated 11.02.1980. It was also claimed by the second defendant that the recitals in the sale deed executed in favour of the third defendant that the subject matter of the sale in her favour was delivered to her would falsify the case of the plaintiff that she had been in possession and enjoyment of the suit property. It was also claimed that the first defendant filed a suit for bare injunction against the third defendant, Saroja in O.S.No. 340 of 1990 and obtained an injunction in respect of northern nine cents of the suit property. Hence, denying the title and possession of Chellama Nadachi o