The right of redemption in usufructuary mortgages is not extinguished by time alone; however, failure to redeem within the stipulated period limits the mortgagor's rights, impacting partition claims.

JUDGMENT :

G.Jayachandran, J.

Judgment and decree dated 17.12.2008 passed in O.S.No.401 of 2005 challenged by the plaintiffs, on being aggrieved by its dismissal.

2. Gist of the plaint is as follows:-

Thiru.Nalli Gounder (late) had a vast extent of land including the suit property. On his death, the property devolved on his four sons namely Subbia Gounder, Palani Gounder, Arumuga Gounder and Vinayaga Gounder. On 01.03.1918, they entered into a partition deed in respect of the property left by their father, Nalli Gounder and got registered. Under the deed of partition, for their convenient sake, they divided the properties into “A” schedule and “B” schedule. The “A” Schedule consisting of 49.27 acres, jointly allotted to Subbia Gounder and Vinayaga Gounder. The “B” schedule consisting of 50.89 acres jointly allotted to Palani Gounder and Arumuga Gounder.

3. The “A” schedule consists of 28.09 acres of dry land and 21.18 acres of garden lands. Subbia Gounder and his sons sold away their half share in 21.18 acres of garden land and enjoying the ½ share in 28.09 acres of dry land. After the death of Subbia Gounder in the year 1938, the property devolved on the five sons of Subbia Gounder, who were in joint enjoyment of the half share in 28.09 acres of dry land and sharing the income. The dispute is in respect of ½ share in the dry land measuring 28.09 acres.

4. The further case of the plaintiffs is that, the suit property was administered by Subbia Gounder and his eldest son Sennimalai Gounder. His other two sons, by name, N.S.Kandasamy Gounder and N.S.Eswaramuthy Gounder, were carrying on tobacco business independently and contributing fund periodically for its improvement and sharing the income derived from the property. Yet, another son by name Sellappa Gounder is living in the nearby village used to frequently visit the property.

5. Subbia Gounder in the year 1938 leaving his five sons. His elder son Sennimalai Gounder died on 09.09.1974, leaving behind a son by name Kandasamy and two daughters. Kandasamy had four daughters and two sons. The first daughter of Sennimalai Gounder died unmarried. The Second daughter died leaving behind one son by name S.K.Natarajan. The said S.K.Natarajan was married to Lakshmi, the daughter of his maternal uncle Kandasamy, later, he died issueless leaving his widow Lakshmi as his sole legal heir.

6. Sellappan, the second son of Subbia Gounder, died on 27.08.1982 leaving behind three daughters and three sons.

7. N.S Kandasamy Gounder, the third son of Subbia Gounder died on 19.05.1975, leaving behind his wife, three sons and six daughters, N.S.Ramasamy, the fourth son of Subbia Gounder died on 18.11.1974, leaving behind his wife, five daughters and one son by name Jegannathan. His wife and son died later. His son died bachelor.

8. N.S.Eswaramurthy, the last son of Subbia Gounder, died on 11.10.1993 leaving behind his wife, four sons and five daughters.

9. According to the plaintiffs, Kandasamy, S/o Sennimalai Gounder died in the year 1988, till his death he along with his paternal uncle N.S.Eswaramurthy and the legal heirs of the other three sons of Subbia Gounder were jointly enjoying the suit property. Thus, each of the 5 branches of Subbia Gounder are entitled for 1/5th share in the suit property. When they sought for division of the suit property, the legal heirs of Kandasamy constituting one branch among the 5 branches, started claiming exclusive right are not ready for partition. Therefo