KRISHNA PILLAI RAJASEKHARAN NAIR Vs. PADMANABHA PILLAI

JUDGEMENT

(1.) The facts relating to the property which forms subject-matter of suit are very many, spread over a period of almost a century by this time and so is the number of persons who have dealt with the property and amongst whom the property has changed hands. Shorn of unnecessary details, we would concentrate on bare essential facts, to the extent relevant for appreciating the legal issues arising for decision. For the sake of convenience we would be referring to the appellant and respondent No. 1 respectively as the plaintiff and defendant No. 1 as they were arrayed before the trial Court. They are the principal contesting parties. Unfortunately, both of them have died and their legal representatives are on record. For the sake of brevity and convenience we are referring to original parties only.

(2.) There was a piece of land measuring 1.2 acres in area which belonged to 18 members of a family of Sripandarachetti Cult. It was mortgaged in 1902. There was a partition amongst different groups. The properties involved in partition were listed as Schedules 'A,' 'B,' 'C' and 'D.' The 'C' Schedule comprised of 30 cents. The property in dispute herein is referable to this Schedule 'C' land. Hereinafter, it is referred to as the 'property in suit.'

(3.) The property in suit was subject to an usufructuary mortgage of the year 1078 Malayalam Era. After the partition, 10 members out of the 18 to whom different portions of the mortgaged property were allotted filed the suit, bearing O.S. No. 464 of 1117 of Malayalam Era, for redemption. The suit was decreed in 1950. After the decree one Chellapan Pillai (who died during the pendency of these proceedings and in whose place defendant No. 1 stands substituted) got the property Schedule 'C' redeemed by making full payment of mortgage money. He also entered into possession over the property in the year 1953. The appellant-plaintiff is the assignee from certain non-redeeming co-mortgagors of a share in 'C' Schedule property. His share in the property is stated to be 9/12th in 25 cents of 'C' Schedule property. In the year 1971, the plaintiff filed the present suit seeking relief of declaration of title with recovery of possession, and in the alternative, the relief of partition. On 7-12-1973, the trial Court decreed the suit upholding the plaintiff's entitlement to 9/12th shares in the suit property but subject to payment of Rs.208/- to reimburse the first defendant by way of contribution towards the amount spent by him in redeeming the property. A preliminary decree determining the share of the plaintiff and his entitlement to partition was passed. The trial Court's decree was upheld by the first appellate Court dismissing the appeal preferred by defendant No. 1. Defendant No. 1 preferred a second appeal (No. 1149 of 1976). Vide judgment dated 10-2-1981, the High Court allowed the appeal and set aside the decrees of the two Courts below. It was urged before the High Court on behalf of the defendant No. 1 that the property being subject to mortgage and defendant No. 1 having subrogated himself in place of original mortgagee, the suit filed by the plaintiff barely for declaration, partition and recovery of possession, was not maintainable and it was necessary for the plaintiff to have sought for the relief of redemption. Even if the relief of redemption of mortgage was not specifically sought for, it was submitted on behalf of the defendant No. 1 that the suit in substance was one for redemption and construed so it was barred by time under Art. 148 of the Limitation Act, 1908. The High Court formed an opinion that this aspect of the case did not appear to have engaged the attention of the Courts below and, therefore, the case needed to be remanded for decision afresh. The High Court allowed the appeal, set aside the decree under appeal and remanded the case to the trial Court with a direction to allow the parties an opportunity of amending the pleadings, so that the plaintiff could seek the relief of redemption and the defendant could raise the plea as to bar of limitation. Pursuant to the order of remand, the pleadings were amended. The suit was once again decreed by the trial Court and the first appellate Court.