COMMON JUDGMENT

1.1 These Second Appeals arise out of two independent suits. They are now introduced:

 O.S.No.404 of 1982 was laid by one Kesava Pillai for redemption of a mortgage of 'B' schedule property. This suit was laid against his mother Karthiyayini Pilla and his brother Chellappan Pillai. They are arrayed as the defendants 1 and 2. The subject matter of the suit is described in two schedules. 'A' schedule property is described as a plot of 39.5 cents out of 79 cents in Old Sy. No. 3486 and correlated to Re-sy No. 89 of Pacode Village. 'B'

schedule property is described as a plot measuring 5 cents in 'A'

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schedule property. Redemption is sought as regards the B schedule

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property.

 The second defendant in the aforesaid suit for redemption, laid an independent suit in O.S.No.416 of 1990 for bare injunction as concerning the 'A' schedule property in the suit for redemption. This suit was laid against the plaintiff in the redemption suit and another Easwara Pillai, who is his another brother (Easwara Pillai passed away during pendency of the suit and his legal heirs were impleaded as defendants 3 to 7).

1.2. Both the suits were tried jointly and evidence was recorded in O.S.No. 404 of 1982 (suit for redemption). Post trial, the suit for redemption came to be decreed and the one laid for injunction was dismissed. This gave rise to two first appeals in A.S.Nos.115 of 1997 and 116 of 1997. Fortune continued to elude the second defendant before the First Appellate Court as well, as both these First Appeals were dismissed. Hence, these second appeals are filed at the instance of the second defendant. The parties would be referred to as per their rank before the trial court.

2.1 The facts fall within a narrow compass and they may be stated as below:

One Kumara Pillai was the original owner of 'A' schedule property ·

and he was married to the first defendant Karthiyayini Pilla. The couple had seven children, of whom this Court is now concerned only with three. They are Kesava Pillai, the plaintiff, Chellappan Pillai, the second defendant in O.S.No.404 of 1982 and one Easwara Pillai, the second defendant in O.S.No.416 of 1990, who is now no more.

On 23.09.1935 (07.02.1111–ME), Vide Ext.A.1 = Ext.B.1 Kumara ·

Pillai created a possessory mortgage/Otti in favour of one Dhaveedhu Nadar. The property mortgaged was the whole of 'A' schedule property. Subsequently, Vide Ext.A.2 = Ext.B.2, dated 12.07.1118 ME (24/12/1943) Dhaveedhu Nadar, the mortgagee, assigned his right over the security in favour of Karthiyayini Pilla, the wife of the mortgagor.

Some time prior to 1964, the mortgagor passed away. Post his death ·

one of his sons Krishna Pillai (not a party to the present suit) laid a suit for partition in O.S.No.164 of 1963 against his mother and other siblings. In particular, the plaintiff in the suit for redemption (Kesava Pillai) was arrayed as the second defendant. Karthiyayini Pilla was arrayed as the 5th defendant. The second defendant/the appellant herein was arrayed as the 4th defendant. Ext.A-1 mortgage indeed was stated to have been disclosed.

On 22.06.1964, a preliminary decree came to be passed in O.S.164 of ·

1963 Vide Ext.A.5 judgment, but subjected it to redemption of Ext.A. 1 mortgage. This was followed by a final decree dated 30.11.1964. The judgment and decree passed therein are marked as Ext.A.5 and Ext.A.3 respectively.

In O.S.No.164 of 1963, 'A' schedule property herein was scheduled ·

as item No.1. In the final decree, as concerning this item of property, plot No.1 came to be allotted jointly to the plaintiff therein (Krishna Pillai), the second defendant/appellant, Karthiyayini Pillai, the first defendant and another. The plaintiff herein was allotted plot No.4.

Based on Ext.A.3 final decree, the plaintiff has laid the suit for redemption of the mortgage over-hanging plot No.4 allotted to him. He also claims that he is entitled to the benefit of Act 4/1938.

2.2 During the pendency of the suit, on 05.07.1984, the first defendan