IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 RSA.No. 565 of 2008() --------------------- AS.162/2003 of SUB COURT,NEYYATTINKARA OS.627/2000 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS IN 1st APPEAL/DEFENDANTS 1 TO 5:- -------------------------------------------------------------------- 1. SARASAMMA,W/O. CHELLAPPAN NADAR THAZHANINNA ROADARIKATHU PUTHEN VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM PAKUTHY, THIRUVANANTHAPURAM DISTRICT. 2. KRISHNA RAJ, S/O.CHELLAPPAN NADAR RESIDING AT THE SAME ADDRESS 3. KRISHNA KUMAR, S/O.CHELLAPPAN NADAR RESIDING AT THE SAME ADDRESS 4. KRISHNA MOHAN,S/O.CHELLAPPAN NADAR RESIDING AT THE SAME ADDRESS 5. KRISHNA KUMARI,D/O.SARASAMMA RESIDING AT THE SAME ADDRESS BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS/RESPONDENTS 2 TO 14 IN 1st APPEAL/DEFENDANTS 6 TO 17 ------------------------------------------------------------------------------------ & LEGAL REPRESENTATIVE OF THE PLAINTIFF:- -------------------------------------------------- 1. SUNDARAN NADAR, SON OF KESAVAN NADAR, KALA PUTHEN VEEDU, MACHIKODE DESOM, CHENKAL PAKUTHY, NEYYATTINKARA.P.O., THIRUVANANTHAPURAM DISTRICT. 2. VELAYUDHAN NADAR RATHINASWAMY, ANNY ELLAM VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O., THIRUVANANTHAPURAM DISTRICT. 3. VELAYUDHAN NADAR MURALIDHARAN, INDRA BHAVAN, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY,NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. RSA.No. 565 of 2008 2 4. RAMACHANDRAN NADAR, V.R.SADANAM, PANNIKKUZHIKKALA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 5. JANAKI SEMALA DEVI, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 6. VELAYUDHAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 7. LATHA MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 8. JINI MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 9. LINA MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 10. LAYILA MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 11. BIJU MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 12. ANI MADHAVAN, KOLAMVILA VEEDU, THIRPARUTHOOR DESOM, THIRUPURAM PAKUTHY, NEYYATTINKARA.P.O. THIRUVANANTHAPURAM DISTRICT. 13. A.P.SUDHEER, SON OF APPUKUTTAN NADAR, MUDANTHANNI VEEDU, THIRUPARUTHOOR DESOM, THIRUPURAM PAKUTHY. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------ R.S.A.No.565 OF 2008 ------------------------------------- Dated this the 8th day of July, 2009 JUDGMENT The defendants 1 to 5 in O.S.No.627 of 2000 on the file of the Second Additional Munsiff Court, Neyyattinkara are the appellants. The appeal is directed against the decree and judgment in A.S.No.162 of 2003 on the file of the Sub Court, Neyyattinkara. The suit was filed by the plaintiffs for partition and redemption. The suit was decreed by the trial court confirmed in appeal. Hence this second appeal. The parties are arrayed as plaintiffs and defendants as in the suit. 2. The plaintiff and the sixth defendant claimed right of equity of redemption pertaining to the plaint schedule property on the strength of Ext.A1 and Ext.B3 sale deed. The appellants/defendants contended that the suit is barred by resjudicata in view of the judgment in O.S.No.1908 of 1968 and O.S.No.3164 of 1998. O.S.No.1908 of 1968 is a suit filed by one Raman Pillai Krishnan Nair against the predecessor of the defendants 1 to 5 and others for redemption of the mortgage covered by Ext.A2 document. Ext.B1 is the copy of the judgment in O.S.No.1908 of 1968. The said suit was dismissed only for the reason that the period prescribed in Ext.A2 mortgage deed R.S.A.No.565 OF 2008 2 sought to be redeemed is not expired, therefore the suit is premature. A second suit as O.S.No.3164 of 1998 was filed by the plaintiff and the 6th defendant herein against the predecessor of the appellant/defendant and others for the very same prayer of redemption of the mortgage. That suit was also dismissed for the reason that the suit is premature. Cause of action for filing the suit arose only in the year 2000 therefore the second suit was also rightly dismissed on finding that the suit is premature. The court in the previous suits rightly held that the right of redemption ripened only in the year 1175. The present suit is of the year 2000 that is after the expiry of the period. The right of equity of redemption of the plaintiff has not been adjudicated in Ext.B1. The suit in O.S.No.3164 of 1998 is not hit by resjudicata in view of Exts.B1 and B2. Therefore the contention of the appellants/defendants is repelled by the trial court. 3. It is the case of the plaintiff that after the death of Eswaran Padmanabhan, the executor of Ext.A2, his legal heirs assigned the jenmom right with respect to the plaint schedule property in favour of the plaintiff's father, Kalan Nadar Raman Nadar and on his death his right over the property devolved R.S.A.No.565 OF 2008 3 upon the plaintiff and his brother Joseph Nadar. The one half right of Joseph Nadar was taken assignment of by the 6th defendant as per Ext.B3 document. Therefore the plaintiff and the 6th defendant have got one half share each in the plaint schedule property and they are entitled to redeem the mortgage. 4. The appellants contended that the suit is hit by doctrine of clog on equity of redemption. The trial court observed that there is no pleading in the written statement that the stipulation in Ext.A2 is an unreasonable condition or it is a clog on redemption and that the contention of clog on redemption was agitated in Ext.B2 case and it was found against. The courts below held that there is no merit in the argument that there is clog on redemption. 5. Another contention raised by the appellants is that the plaintiff and the 6th defendant have not obtained the right of equity of redemption. The trial court taking into consideration the contention of the plaintiff held that the defendants are estopped from contending that the plaintiff and the 6th defendant are not the jenmees for the reason that predecessors-in-interest of these defendants have already accepted their right over the R.S.A.No.565 OF 2008 4 property before the Land Tribunal in Ext.A4 case. Ext.A4 is an order of the Land Tribunal in O.A.No.630 of 1976. Ext.A5 is the application. The court below noted that the only parties impleaded in that application as land Lords are the plaintiff and the 6th defendant. No other person has been impleaded therein as the jenmies of this property. In such circumstances the court below held that the contention that the plaintiff and the 6th defendant are estopped from contending that they have obtained right of equity of redemption cannot stand. After repelling all the conditions of the appellant/defendant the trial court held that the plaint schedule property is liable to be partitioned into 2 equal shares and that the mortgagors are entitled to get redemption of their respective shares by depositing the proportionate mortgage amount. The court also awarded the value of improvements to be adjusted and payable to the appellants. 6. The lower court also for the very same reason held that the suit is not barred by limitation, not hit by principles of resjudicata and that mortgagos are entitled to redeem the mortgage property. The appellate court dismissed the appeal finding that there is no merit in the appeal. R.S.A.No.565 OF 2008 5 7. The questions posed by the appellants have been dealt with in detail and both the courts rightly held that the contentions cannot stand. The very same contentions are agitated before this court. The reasons stated by the courts below for repelling the contentions are valid and tenable. I find no reason to take a different view considering the facts and circumstances and evidence in this case. No grounds are made out to interfere or to invoke Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.