MUHAMMATHU PATHUMMAL NABIA YATHU UMMAL Vs. ABDUL KASIAN MUHAMMED MYTHEEN
HIGH COURT OF KERALA
MUHAMMATHU PATHUMMAL NABIA YATHU UMMAL
ABDUL KASIAN MUHAMMED MYTHEEN
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(1.)The 6th additional plaintiff is the appellant. The suit was for redemption. It was dismissed by both the lower courts. Hence the appeal.
(2.)The plaint property is 32 cents of land within the limits of the Trivandrum corporation. It belonged to the 1st plaintiff. He and his father Bhagavathi Asari mortgaged it to defendants 1 to 6 for 10500 fs. on 13-9-1090 under Ext. B. The term of the mortgage was for 25 years. 79 fs. were paid in cash to the mortgagors and the rest of the consideration was recited to be paid to third parties, and the mortgagors. There was a recital to pay Pw. 3, Parameswaran Pillai Raman Pillai 798 fs. and another recital to pay 1568fs. to one Narayana Pillai. The amount due to Narayana Pillai was a charge on the plaint property. 2100 fs. were reserved with the mortgagees to be paid on the registered receipt of the mortgagors on a later date. The other recitals are not material for this case. Raman Pillai instituted a suit in O. S. 63/1091 and obtained a decree and sold the plaint property in execution and got delivery of possession under Ext. I (The fact of actual delivery is not admitted by the plaintiffs). Thereafter the property was sold by Raman Pillai to defendants 1 to 6 on 20-1-1096. Defendants 1 to 6 had instituted a suit O. S. 739/1094 and applied for an injunction to restrain Raman Pillai from taking delivery of possession of the property through court. Ext. C is the plaint there. It was after the institution of that suit that Raman Pillai sold the property to defendants 1 to 6 under Ext. E. From that sale deed it is clear that defendants 1 to 6 had not till then paid off the debt recited to be paid under Ext. B, to Narayana Pillai.
(3.)The suit was resisted on the ground that the defendants 1 to 6 had become the owners of the property by the purchase under Ext. E and that the plaintiff was not entitled to redeem the mortgage.
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