L SANKARAN LEKHSHMI Vs. ADIMA KUNJU ABDHURAHIMAN KUNJU
HIGH COURT OF KERALA
ADIMA KUNJU ABDHURAHIMAN KUNJU
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(1.)Additional defendants 2 to 5 and 7 are the appellants. The suit was one for redemption of a mortgage. Plaintiffs 5 to 7 are the children of Salia Ummal, a sister of plaintiffs 1 to 4. Plaintiffs J to 4 and deceased salia Ummal are the children of Mytheen Kunju Atima Kunju. Plaint A and B schedule properties belonged to the deceased father and mother of plaintiffs 1 to 4 and deceased Salia Ummal. Mytheen Kunju Atima Kunju and his wife executed the original of Ext. A mortgage to one Muhammad Kunju Ibrahim Kutti for Rs. 1500. In accordance with the provision in that deed the income of the property was to be appropriated towards the interest due for Rs. 1000 and for the balance of the mortgage money of Rs. 500, 9 per Cent, interest was to be paid by the mortgagor personally. On the basis of a prior hypothecation bond a stranger had obtained a decree in O. S. No. 429 of 1091 charged on A schedule property. Ext. D is the copy of that decree. A schedule property was brought to sale and was purchased by the mortgagee under the original of Ext. A for 7050 fs. Ext. C is the sale certificate and Ext. D the execution diary in that case. The court sale was on 14-4-1002. Ibrahim Kutty before purchasing the property in court sale had made an application to court for permission to bid. That application has not been produced in this case. The purport of it, as is gatherable from the execution diary, is that since the mortgagee wanted to protect his interest in the property he was asking for permission to bid in the auction. The decree holder in O. S. No. 429 of 1091 withdrew the amount due to him under the decree and the balance of the sale amount after satisfying the decree in O. S. No. 1003 of 1091 was drawn by the auction purchaser after executing a security bond to the court. The mortgagee Ibrahim Kutti subsequently died and A and B schedule properties fell to the share of his daughter who sold the same to the 1st defendant under Ext. C on 23-11-1118 for Rs. 3800. The plaintiffs claiming to be the owners of the equity of redemption have instituted the suit for redeeming Ext. A mortgage on A and B schedule properties. They have also claimed the right to recover mesne profits of the property.
(2.)The main contentions of the defendants were that the plaintiffs were not the legal representatives of Atima Kunju and his wife, that they were not entitled to redeem A schedule property as that property was sold in execution of the decree in O. S. No. 429 of 1091 and that the 1st defendant had become the owner of that property, that they are entitled to get Ks. 1500 plus the full interest on Rs. 500 as mortgage money and that they were entitled to get the value of improvements.
(3.)The court below has come to the conclusion that the plaintiffs were entitled to redeem both A and B schedule properties, that the purchase by the mortgagee of A schedule property in execution of the decree in O. S. No. 429 of 1091 would enure to the benefit of the mortgagor, that the mortgage was still subsisting on A schedule items also, that the plaintiffs were entitled to redeem the mortgage on depositing Rs. 1500/- interest on Rs. 500/- amounting to a moiety, the sale amount in execution of the decree in O. S. No. 429 of 1091 and the value of improvements viz. Rupees 439-9-10 1/2.
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