Decided on January 29,1952



Subba Rao, J. - (1.) This is a second appeal against the decree and judgment of the Court of the Subordinate Judge of Tanjore confirming that of the District Munsif of Tanjore in O. Section No. 134 Of 1943, a suit filed by the respondent for redemption of the usufructuary mortgages and for possession of properties pertaining to its 7/10th share. One Natharsa Rowther had four sons and two daughters. They were Kadir Hussain, Kadirasa, Mohideensa, Mohammad Kanni, Miran Bivi and Chinna Pillai Bivi. Natharsa Rowther mortgaged his three shops bearing Nos. 11, 12 and 13 situated in survey number 176/l-A at Vallamvadakku, Sethi village to one Nizam Rowther on 27th, 28th and 29th March 1867 for a sum of Rs. 297. Natharsa's son Mohideensa created a mortgage in regard to the same properties in favour of the said mortgagee for a sum of Rs. 50 on 5-12-1878. After the death of the original mortgagor his four sons became entitled to 2/10th share each and the two daughters 1/10th share each. Noor Bivi daughter of Chinna Pillai Bivi and also daughter-in-law of Kadirsa succeeded to her mother's l/10th share and also to Kadirsa's 2/10th share and thus became entitied to 3/10th share in the mortgaged properties. Defendants 1 to 10 are her heirs. The other heirs of Natharsa conveyed then interest to the plaintiff and the plaintiff therefore became entitled to the 7/10th share in the said properties.
(2.) On 16-11-1891 there was a partition in the mortgagee's family and his sons, Kamal, Mohideensa and Natharsa got one shop each. Mohideensa assigned his shop to Kamalsa. Kamalss's heirs received their proportionate share of the mortgage amount from Noor Bivi and released shops, Nos. 11 and 12. Noor Bivi Instituted O. S. No. 98 of 1933 on the file of the District Munsif's Court, Tanjore, for redemption of shop No. 13 and obtained a decree on 28-6-1933 and took delivery of the shop on 18-7-1934. The daughters of Noor Bivi conveyed these shops to defendant, under Ex. D. 9 dated 13-12-1938.
(3.) The plaintiff who became the owner of 7/10th share in the mortgaged properties filed the aforesaid suit for redemption and possession of the properties pertaining to its share. Defendants 1 and 10 pleaded that in a partition between the heirs of Natharsa the equity of redemption in the suit properties was allotted to Kadirsa and that, therefore, the other heirs of Natharsa ceased to have any interest in the equity of redemption. They further contended that they acquired right by adverse possession to the suit items. Both the, Courts found that defendants failed to establish the exclusive right of Kadirsa to the plaint schedule properties. They also agreed in holding that the defendants did not establish their plea of adverse possession. Defendants 1 and 2 have preferred the above second appeal. Rahimansa Rowther and Anr. vs. The Madras Islamia Educational Institution, Vallam,... Page 3 of 7 ge 3 of 7;

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