Usufructuary mortgage redemption is a statutory right under Section 60, and validity of a gift deed must meet Section 123 requirements; counterclaims must relate to the same cause of action.

JUDGMENT

These appeals arise out of the common judgment and decree passed by the II Addl. Munsiff’s Court, Neyyattinkara, in OS Nos.216/2004 and 441/2004 dated 13.10.2006 and also a counterclaim for partition. OS No.216/2004 is a suit for injunction, whereas OS No.441/2004 is a suit for redemption of mortgage and partition.

2. The brief facts necessary for the disposal of the appeals are as follows:-

OS No.441 of 2004 is instituted by Vimala Bai and Ayyappan Sivanandan seeking for redemption of mortgage. OS No.216 of 2004 is instituted by one Ani, the sibling of Vimala Bai, seeking for a decree of injunction restraining his sister from trespassing into the plaint schedule property. For consideration of the issues raised in these appeals, it will sufÏce the cause if the facts leading to the filing of OS No.441 of 2004 are stated. The plaint A schedule property belonged to the 2^nd plaintiff’s father, late Sadasivan, as per document No.425 of 1961. Late Sadasivan mortgaged the property in favour of one Krishna Pilla Raghavan Pillai by a registered mortgage deed No.2918/69 dated 17.09.1969. It is contended that although the property was under mortgage, Raghavan Pillai did not get possession and Sadasivan continued possession of the property. Later, when the 2nd plaintiff in OS No.441 of 2004 was married off, her father Sadasivan executed a gift deed bearing No.1169/76 dated 07.04.1976 wherein 10 cents of land described as B schedule out of the 25 cents comprising in plaint A schedule property was gifted to her. After the said transfer, Sadasivan had kept the balance 15 cents in his possession described as plaint C schedule. While so, the mortgage in the year 1969 was redeemed for and on behalf of the 1^st defendant by Sadasivan by executing a registered deed No.2056 dated 30.07.1986. Going by the said deed, the 1^st defendant was entitled to hold the property under mortgage and was obliged to get the release deed executed from the erstwhile mortgagors as and when the mortgage is redeemed by them. According to the plaintiffs, the execution of the deed on 30.07.1986 is a valid acknowledgment of the mortgage by Raghavan Pillai in favour of Sadasivan, and therefore, it constitutes a valid acknowledgment of the mortgage and therefore the suit for redemption of mortgage is maintainable. Thus, it is prayed that the plaintiffs be permitted to redeem the mortgage and the plaint C schedule be partitioned giving 1/3^rd share to the plainti defendants in OS No.441 of 2004 entered appearance and contested the suit, by denying the execution of the gift deed stating that it is a void document. It was further contended that the suit for redemption of mortgage was time barred. Along with the suit, a counter claim was raised by the defendants seeking for a partition of the property covered by the gift deed and included as counter claim schedule property. The aforesaid suit was tried along with OS No.216 of 2004 wherein, the 1^st defendant had sought for a decree of injunction restraining the defendants/plaintiffs in OS No.441 of 2004 from interfering with the peaceful possession of the plaintiff over the property. Both the suits were tried together. Exts.A1 to A9 were marked on behalf of the plaintiffs in OS No.441 of 2004. Exts.B1 to B5 were marked on behalf of the defendants. PW1 to PW3 were examined on behalf of the plaintiffs. DW1 and DW2 were examined on behalf of the defendants. On the basis of the pleadings and documentary evidence, the trial court framed separate issues in OS Nos.216 of 2004 and 441 of 200