R.S.SARKARIA - (1.) THIS is a plaintiff's appeal directed against a judgment and decree, dated 26/03/1964, of the High Court of Madras, passed in Letters Patent Appeal No. 18 of 1961. The relationship of the main contesting defendants will be apparent from the following genealogical table;
(2.) VALLIAMMA, appellant herein, is the original plaintiff. She is the grand-daughter of Madhavan. Respondents 1 to 3 are the original defendants 1 to 3. They are the grandsons of Sivathanu. The properties in dispute are items 31 to 42 and 44 detailed in the plaint. Between the years 1881-1882, the two brothers Madhavan and Sivathanu mortgaged these properties by way of usufructuary mortgages, which were redeemed by Padmanabhan, father of defendants 1, 2, and 3 between the years 1913 and 1918 by paying the entire redemption money and he alone obtained possession thereof. The redemption was effected by obtaining release deeds from the former mortgagees-in-possession. The particulars of these mortgages and the release deeds executed in favour of the redeeming co-mortgagor are as under:- (i) Exhibit III, dated September 29. 1059 (1884), is the mortgage executed by the two brothers in respect of items 34 to 36, 38 and 39 and 44 in favour of the grandfather of D. W. 2. Exhibit IV is the release deed, dated April 18, 1093 (1918), in favour of Padmanabhan. (ii) Exhibit IX is the mortgage, dated August 19, 1056 (1881), executed by the two brothers in favour of Cochi Ravi Pillai in respect of items 32 and 40. Exhibit XIV, dated February 21, 1088 (1913), is the release deed in favour of Padmanabhan. (iii) Exhibit XV is the mortgage, dated February 25, 1058 (1883), in respect of plaint item 41 by the two brothers in favour of Arumugham Narayana. Exhibit XVIII, dated August 31, 1088 (1913), is the release deed. (iv) Exhibit XIX is the mortgage, dated August 14, 1058 (1883), in respect of items 31, 33 and 37 in favour of Chinnakannu Pandaram. Exhibit XX is the release deed, dated January 23, 1088 (1913). (v) Besides the above, the two brothers had executed a Vellaolai Othi in 1043 (1868) in respect of item 42. Exhibit 21 and 22, dated August, 21, 1088 (1913), are the release deeds. The plaintiff, the grand-daughter of the non-redeeming co-mortgagor, Madhavan, instituted the suit on 15/07/1946 for partition and possession of her one-half share of the suit properties. In respect of items 34 to 36, 38, 39 and 44, she claimed possession on contribution of her share of the mortgage money that had been paid by the redeeming co-mortgagor to the mortgagees. It was alleged in the plaint that this half share of the plaintiff's father devolved on his widows on his death, without male issue, and subsequently, on the death of the widows, the same was inherited by the plaintiff.
(3.) DEFENDANTS 1 to 3 resisted the plaintiff's suit, inter alia, on the ground that even if the courts come to the conclusion that the division of the joint family status alleged by the plaintiff was true, the plaintiff would not be entitled to recover her half share in the plaint Schedule, items 31 to 42 and 44, because the period of limitation for redemption to these mortgages, under the Travancore Limitation Act was 50 years, which had expired long before the filing of the suit. The suit was tried by the second Judge of the District Court, Nagercoil, who on 16/02/1948 passed a preliminary decree in favour of the plaintiff, declaring her right over one-half share of the Schedule properties and her right to recover the same, together with mesne profits, after division by a Commissioner appointed by the Court. The case was adjourned for final decree proceedings. By the same judgment, dated 16/02/1948, the questions covered by issues 3 to 9, including that of limitation, were left for decision in the final decree to be passed in the case.;