IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 SA.No. 287 of 1998(A) -------------------------- AS.121/1990 of SUB COURT, CHERTHALA OS.137/1998 of PRL. MUNSIFF COURT, CHERTHALA .................... APPELLANT(S):RESPONDENTS 1, 3 TO 6/PLAINTIFFS 1,3, TO 6. --------------------------------------------------------------------------- 1. C.P.SWAMINATHAN, KAITHAKUZHI VEEDU, C.M.C. XXV, CHERTHALAVADAKKU VILLAGE, VADAKKUM MURI CHERTHALA P.O.,ALAPPUZHA DISTRICT. 2. C.P.RADHAKRISHNAN, KAITHAKUZHI VEEDU, C.M.C. XXV, CHERTHALA VADAKKU VILLAGE, VADAKKUM MURI, CHERTHALA P.O., ALAPPUZHA DISTRICT. 3. T.B.AJITHA KUMARI, CHAKKALAVELI, C.M.C. 18,CHERTHALA. 4. T.B.LALITHA KUMARI, KALAPPURAKKAL VEEDU, PRAKASHAPURAM, THYCKAL P.O., CHERTHALA. 5. T.B.CHITHRA, C/O.K.V.SURENDRAN, HOUSE NO.IX/902, MANTHARA ROAD, GENEDRAL MERCHANT, KOCHI - 2. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S):APPELLANT AND 2ND RESPONDENT/DEFENDANT AND 2ND PLAINTIFF. ----------------------------------------------------------------------------- 1. T.B.THANKAMMA, SHARKARESWAMY HOUSE, T.C.24/1986. THYCAUD P.O., THIRUVANANTHAPURAM. 2. P.SIVA PRAKASH, KAITHAKKUZHI VEEDU, C.M.C. XXV, CHERTHALA VADAKKU VILLAGE,VADAKKUM MURI, CHERTHALA P.O. R1 BY ADVS. SRI.B.V.JAY SANKER SRI.BIJI MATHEW R2 BY ADVS. SRI.JOHN JOSEPH SRI.G.N.NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 287 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of June, 2011. JUDGMENT Plaintiffs 1 and 3 to 6 in O.S. 137 of 1988, which was a suit for redemption, are the appellants. The plaint schedule property was in the joint possession of late Bhavani Amma and others obtained as per partition deed of 1953. While so, Bhavani Amma and one of her daughters executed a mortgage deed in favour of the defendant evidenced by Ext.A1 dated 23.2.1961. The other plaintiffs are minors and they were represented by Bhavani Amma. The plaintiffs are entitled to redeem the mortgage. They expressed their willingness by issuing a notice to the defendant. But the defendant was not prepared to accede to the request of the plaintiffs and hence the suit. 2. Defendants resisted the suit. It is pointed out that the mortgage is no longer in existence. The contention was that the property originally belonged to the Sakha consisting of Bhavani Amma, plaintiffs and defendant and S.A.287/1998. 2 one Gopinathan, who is not a party to the suit. It was also contended that Gopinathan and others are also entitled to get a share each. It is contended that since the defendant is a co-owner, the proper remedy is to file a suit for partition and then seek redemption. It was also pointed out that she had made valuable improvements in the property and is entitled to get Rs.1,00,000/- by way of value of improvements. On the basis of these contentions she prayed for a dismissal of the suit. 3. On the basis of these contentions, issues were raised by the trial court. The evidence consists of Ext.A1 from the side of the plaintiffs and Exts.B1 to B5 marked from the side of the defendant. The trial court decreed the suit. The lower appellate court allowed the appeal and dismissed the suit. 4. Notice is seen issued on the following questions of law: “1) Whether co-mortgagees can redeem S.A.287/1998. 3 their respective shares without prayer for partition. 2) Is the denial of partial redemption by the lower appellate court contrary to the principle laid down in AIR 1956 Supreme Court is not erroneous and illegal. 3) Without determining the status of plaintiffs and their right consequent to the redemption, is it legal and proper for lower appellate court to enter the finding of that plaintiffs being co-owners cannot redeem their respective shares of plaint schedule property. 4) Whether it is necessary for a separate prayer for partition in a suit for redemption when the mortgagee happen to be a co-owner of the paint schedule property. 5) Whether without redeeming the respective shares of plaintiffs a partition is legal or not.” 5. Learned counsel appearing for the appellants pointed out that even though it is difficult to assail the judgment and decree of the lower appellate court since the S.A.287/1998. 4 plaintiffs have failed to bring to the notice of the court the change in circumstances and that has resulted in miscarriage of justice. Learned counsel also submitted that a fresh look at the hands of the lower appellate court is absolutely necessary. Learned counsel also contended that subsequently the defendant has instituted a suit for partition O.S.61 of 2003 and also a release deed of the year 1995 releasing a part of the mortgage. These documents, according to the learned counsel, are very material to determine the issue involved in this case. 6. After hearing counsel appearing on both sides, it is felt that there is some justification in the submission made by the learned counsel for the appellant. On the basis of the materials now before court, the judgment of the lower appellate court cannot be faulted. The lower appellate court has made the correct approach. Subsequently there was a partition in the year 1988, by which properties were allotted to the defendant, though she did not join in the partition deed. In the light of O.S.61 of 2003 filed by the defendant, S.A.287/1998. 5 it has become necessary to reconsider the issue involved in this case and settle the rights of the parties. It is stated that copy of the release deed executed by the defendant is produced in O.S.61 of 2003 as Ext.A7. These aspects warrant a fresh look at the issues. In the result, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above after affording an opportunity to both sides to adduce fresh evidence, if they so choose. The parties shall appear before the lower appellate court on 26.7.2011. The lower appellate court will make every endeavour to dispose of the suit as expeditiously as possible at any rate within six months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.