Hidayatullah, J. - (1.) This is an appeal by certificate granted by the High court of Madras against its common judgment and decree dated November 3, 1955 in A. S. Nos. 88 and 138 of 1947. The appellants are 7 of the original 139 defendants and the respondents are the two plaintiffs and the original defendant No.1. The appeal arises from a suit for redemption of a usufructuary mortgage dated April 26, 1862 and for delivery of possession of properties described in Schs. A and B of the plaint together with mesne profits from the date of redemption till delivery of possession, the mortgaged property had passed into the hands of several persons and this is why so many defendants were joined, life shall now give the facts which go back for an incredibly long period.
(2.) The plaint incorporates three schedules distinguished as A, B and C Schedules and they describe properties which belonged to the Alyasantana family of the second respondent. On April 14, 1842, one Madana, who was then the Ejaman of the family,usufructuarily mortgaged the A, B and C Schedule properties in favour of one Kunhanmmu Hajar for 1250 varahas or pagodas (equal to Rs. 5,000/-) under Ex. P-1- This deed did not contain any provision for repayment of the amount or for the usufructuary mortgage to be worked off. It contained a clause to the following effect: "At the end of the cultivation season, whenever you state that the said land is not required, the said one thousand, two hundred and fifty Varahas due to you and also the value of improvements shall be paid to you in one lump sum and the said land, house, cattle-shed, out-house, etc., shall be obtained back from you, and this document as well as the previous documents shall be got redeemed." Though the mortgage deed was taken ostensibly in his own name by Kunhanmmu Hajar, he did so on behalf of his brothers, sisters, nephews and nieces etc. The mortgaged property was described as land bearing a beriz of 441/2 pagodas (equal to Rs. 227-10-8) situated in Warg No. 34 of Kumbadaje village, Netanige Magne, Bekal taluk (the whole Warg bore a beriz of 561/2 pagodas), comprising 37 fields which were described by their names without boundaries. The mortgagees who were given possession of lands were also placed in possession of some heads of cattle and other movables and for the redemption of the movables there was separate term in the deed.
(3.) In 1857, the family of the mortgagees effected a partition by registered documents which are marked collectively as Ex. P-6 series. This partition was not by metes and bounds or by the allotment of whole fields but a division of lands with reference to the fraction of the beriz payable. We are concerned in this appeal only with the share which went to Kunhammu Hajar whose share was 1/4. In Ex.P-6 which is the partition deed concerning him, his share was described as follows: "Further, out of Belinjada land bearing a beriz of Rs. 227-10-10 and entered in No. 34 Maindana Kuntamma Varg of Kunbadaji village Nettanige Magne, the one-fourth-portion bearing a beriz of Rs. 56-14-8 and consisting. of land and Bavaities including border trees, soil and field attached thereto." Other members of the family received shares according to their own right mentioned in separate documents. The earliest such document was of April 3, 1857 and the last of April 30, 1857. Kunhanmu Hajar died after this partition and on April 26, 1862, the mortgagors and mortgagees entered into an agreement evidenced by Exs. P-2 and P-2 (a) by which Ex. P-1 was re-affirmed; the mortgagees, however, released from Ex. P-1 certain properties which are now shown in Schedule C to the plaint. The mortgagors on their part agreed that the remaining properties (which are now shown in Schedules A and B to the plaint) would be enjoyed by the mortgagees for a period of 40 years from the date of the document together with improvements made thereon. The mortgagors covenanted that it after the expiry of the stipulated, period this land was required by them and it at the time of the cultivation season of that year the mortgage amount of the usufructuary mortgage (Ex. P-1) together with the amounts of two other deeds creating a charge and Rs. 100/- taken at the execution of Ex. P-2 together with the amounts relating to improvements were paid in one lump sum, the land and the bond would stand redeemed. Ex. P-2 was executed by the mortgagors and a counterpart (Ex. P-2(a)) was executed, among others, by Aliamma, the widow of Kunhanmmu Hajar, who signed for herself but not on behalf of Kunhi Pakki her minor son by Kunhanmmu Hajar. Kunhi Pakki's share in the mortgage was thus not represented in Exs. P-2 and P-2(a). Kunhi Pakki died in 1934. and the first defendant also Kunhi Pakki who is the third respondent in this appeal is his granted-son, It may be mentioned that the two deeds which created a charge and which were to be discharged along with Exs. P-1 and P-2 have been held by the High Court and the Court below to be for the principal amount of Rs. 2,000/-. We may now omit for the time being a reference to the further devolution of the share of Kunhi Pakki son of Kunhnammu Hajar in respect of, whose share in Ex. P-1 the main dispute in the case has arisen. We shall mention those details later.;