Ayocb Sait Muhammathu Ibrahim Sait and Another vs Anantha Naiken Krishna Pattar

Gangadhara Menon, J.—These are two connected appeals from the judgments and decrees of the learned District Judge of Quilon in O.S. 27 of 1119 and O.S. 12 of 1120 of his Court.

The plaint properties in O.S. 27 of 1119 originally belonged to one Janardhana Shenoi. In 1071 he mortgaged the properties to one Isak Ummar Sait. Ummar Sait hypothecated his mortgaged right to one Chacko Chacko who obtained a decree on the hypothecation bond in O.S. 20 of 1104, put the decree in execution, purchased the mortgage right and obtained delivery. After the death of Chacko, his children were in possession of the properties under the mortgage right. Janardhana Shenoi died and his sons Venu Shenoi and Narasimha Shenoi partitioned the equity of redemption. Narasimha Shenoi sold his half share in the equity of redemption to a firm, known as ''Ko.Ko.A'' of which the Plaintiff in O.S. 27 of 1119, Krishna Pattar was one of the partners. Venu Shenoi and Krishna Pattar there after filed O.S. 1464 of 1095 in the Quilon Munsiff''s Court for redemption of the properties and obtained a decree. Some time after, Krishna Pattar filed O.S. 40 of 1115 in the Quilon District Court for the dissolution of the partnership firm, ''Ko.Ko.A'' and for settlement of accounts. In the course of proceedings in O.S. 40 of 1115 and in pursuance of an order of Court the half right over the equity of redemption that the Ko.Ko.A firm had over the disputed properties was sold to Krishna Patter. Thus Krishna, Pattar became the full owner of one-half of the equity of redemption. In the meantime the father of the Defendants in O.S. 27 of 1119 purchased the other half right over the equity of redemption from Venu Shenoi and as owner of that portion of the equity of redemption obtained release of the entire mortgage right from Chacko''s children. When Krishna Pattar sought to execute the redemption decree in O.S. 1464 of 1095 in respect of his one-half share, Defendants 1 and 2 in O.S. 27 set up an oral contract toy Krishna Pattar and his partners in the Ko.Ko.A firm to sell the properties to their lather and on that ground and various other grounds resisted Krishna Pattar''s right to execute the decree and recover possession of his one-half share. Krishna Pattar therefore brought the present suit O.S. 27 of 1119 for partition of his half share of the properties by metes and bounds and for recovery of possession thereof with mesne profits on payment of proportionate mortgage-money and value of improvements. Defendants 1 and 2 resisted the suit on the basis of the alleged oral agreement to sell the share of the Ko.Ko.A firm in respect of the plaint properties to their father and also on the ground that a second suit for redemption of the properties will not lie. Agreeably with their contention regarding oral contract to sell, they instituted O.S. 12 of 1120 against the Plaintiff in O. S. 27 of 1119 for specific enforcement of the contract.

The two suits were jointly tried and the entire evidence was recorded in O.S. 27 of 1119. The learned Judge repelled the contentions of the Defendants in O.S. 27 of 1119 and while decreeing that suit dismissed O.S. 12 of 1120. The Defendants in O.S. 27 of 1119 who are the Plaintiffs in O.S. 12 of 1120 have therefore preferred these two appeals from the decree of the two suits. A.S. 75 of 1122 is the appeal from the decree in O.S. 27 of 1119 and A.S. 76 of 1122 is the appeal from the decree in O.S. 12 of 1120.

4-5. The first question for decision in these appeals is whether the oral contract set up by the Appellants for the sale of one-half of the equity of redemption or the plaint properties in favour of their father is true. (After considering the circumstances and evidence his Lordship concluded:) It follows that the finding of the learned Judge that there was no contract for the sale of 1/2 share of the equity of redemption to the father of the Appellants as pleaded by them is correct and does not call for any interference. The decree of the lower Court in A.S. 76 of 1122 has therefore (sic) be confirmed.

In A.S. 75 of 1122 it was urged for the Appellants that in so far as the Plaintiff has already obtained a decree for redemption of the properties in O.S. 1464 of 1095 the present action for the redemption is not maintainable. It is not the case of the Appellants that the mortgage sought to be redeemed is time barred. The cause of action for redemption is a recurring one. Moreover the previous suit was filed by the mortgagors i.e. the present Plaintiff and the predecessor-in-interest of the Defendants. The Defendants have after the decree in the previous suit obtained redemption of the entire properties by virtue of their title to one-half share in the equity of redemption under Ex. I. The remedy of the co-mortgagor, under the circumstances is to bring a suit for redemption of his half share of the properties on partition by metes and bounds. This is what the Plaintiff seeks for in O.S. 27 of 1119. We do not think that such a suit can in any way be said to be barred on account of the previous joint action by the two co-mortgagors for redemption.

The last ground urged on behalf of the Appellants in A.S. 75 of 1122 is in regard to the question of mesne profits. The Plaintiff has deposited in Court only one-half of the mortgage money and the value of improvements found due to the mortgagees as per the decree in O.S. 1464 of 1095. The Appellants pleaded that they had effected further improvements in the properties after Ex. II release and that they were entitled to their value as well before redemption. The learned Judge has gone into that question and has found that the Defendants have effected further improvements to the value of Rs. 1139 Chs. 25-0 and that they are entitled to be paid 1/2 of that amount also on redemption of the Plaintiff''s 1/2 share of the properties. The Respondent has not challenged this finding. The Appellants possession of the properties cannot be said to be wrongful until there is a valid tender of the entire mortgage-money and value of improvements due to them. It is admitted that the additional amount awarded by the learned Judge by way of value of improvements has not yet been deposited in Court by the Plaintiff. The decree of the lower Court regarding mesne profits cannot therefore stand. The Plaintiff will get mesne profits at the rate of Rs. 50/- per annum only from the date of deposit of the entire mortgage amount and the value of improvements due to the Appellants as per the decree of the Court below. The lower Court''s decree will be modified accordingly.

In the result subject to the modification indicated in para. 7 supra the decree of the lower Court in O.S. 27 of 1119 is confirmed and A.S. 75 of 1122 is dismissed with costs. A.S. 76 of 1122 is also dismissed with costs.