Kunhammu Hajar died after this partition and on April 26, 1862, the mortgagors and mortgagees entered into an agreement evidenced by Exs.
P 2 a because he was neither a signatory to it being a minor, number had any legal guardian executed Ex.
P 2 the mortgagees were entitled to remain in possession for 40 years from April 26, 1862 and the right of redemption thus accrued for the first time on April 27, 1902 and the claim made in 1944 was within 60 years of that date as required by Art.
On September 29, 1902, Kunhi Pakki, his wife Beepathumma and his son Kunhammu executed a usufructuary mortgage Exs.
P 2 and P 2 a and the term of 40 years for which the mortgagees were to remain in possession from 1862 were taken into companysideration and saved limitation.
14 3 8.
8 C. Mahamood son of Abdul Rahimam Haji, who died during the pendency of the appeal in the High Court and by the daughter deft.
28 7 4 in Warg No.
88 and 138 of 1947.
56 14 8 and companysisting of land and Bavaities including border trees, soil and field attached thereto.
49 son and Bipathumma deft.
These properties were again said to be those that had been usufructuarily mortgaged under the Ilidarwar of September 29, 1902 in favour of Vaikunta Bhakta by Ex.
P 17 and P 17 a on October 6, 1861.
This showed that Kunhi Pakki was mortgaging the above 3/16th share acquired by him by Ex.
The mortgagors on their part agreed that the remaining properties which are number 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 improvement made thereon.
P 60 in favour of one Laxmana Bhakta on January 18, 1887 for Rs.
The property was said to be of Belinja Mainda Kinhana Warg No.
2,000 on February 11, 1892 in favour of one Anantha Kini.
P 62 to Abdul Rahiman and Korgappa by Ex.
34 maindana Kuntamma Varg of Kunvadaji village Nettanige Magne, the one fourth portion bearing a beriz of Rs.
Kunhi Pakki number obtained a mortgage of the released properties with a term of 32 years enjoyment, thus putting all the three properties described in schedules A, B and C in the plaint and mentioned in Ex.
The property was described as of beriz of Rs.
P 2 and P 2 a .
P 2 a , because she had died earlier.
Vaikunta Bhakta transferred the mortgagee rights under Ex.
The period of 60 years was repeated in the Act of 1871 but it companytained a rider that if during the period of 60 years, there was an acknowledgment then the period would run from the date of that acknowledgment.
The earliest such document was of April 3, 1857 and the last of April 30, 1857.
Cheriamma had received 1/8th share beriz of Rs.
The judgment of the High Court modified the decree in the matter of the amounts due for improvements but on the main question, it endorsed the views of the trial Judge with regard to limitation and the application of the equitable doctrine of election of Kunhi Pakki in respect of documents Ex.
In this manner, the 8th defendant acquired the 7/16th share of Kunhi Pakki.
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 a separate term in the deed.
It was pleaded that there was numberdoctrine of representation in Mohammedan Law, and the mother, even if she had signed Ex.
In other words, though the property was shown in two lots, he obtained the 3/16th share of Cheriamma.
P 1 together with the amounts of two other deeds creating a charge and Rs.
P 6, and will figure in the narrative which follows.
The appeal arises from a suit of for redemption of a usufructuary mortgage dated April 26, 1862 and for delivery of possession of properties described in schedules A and B of the plaint together with mesne profits from the date of redemption till delivery of possession.
P 61 for Rs.
P 1 was re affirmed the mortgagees, however, released from Ex.
It was further pleaded that the respect of Kunhi Pakkis share Exs.
P 2 and P 2 a and taken benefit under them and his successors companyld number therefore avoid them.
The present suit was filed for redemption of Ex.
Respondent No.
The most important of these is Ex.
100 in cash.
P 60 are said to be as mentioned in Ex.
Cheriamma was number a signatory to Ex.
P 2 a was executed, among others, by Aliamma, the widow of Kunhammu Hajar, who signed for herself but number on behalf of Kunhi Pakki her minor son by Kunhammu Hajar.
The plaintiffs also cross objected.
4,089 2 0 was due.
P 6 c .
Kunhi Pakkis share in the mortgage was thus number represented in Exs.
On July 10, 1884, he took a sale deed Ex.
The trial Judge held that suit to be within time applying to the 1/4th share of Kunhammu Hajar than owned by C. Mahamood deft.
28 7 4 at the partition vide Ex.
No boundaries were given but it was stated that the boundaries were the same as in the mortgage deed of January 18, 1887 in favour of Laxmana Bhakta.
The trial Judge accordingly passed a decree inter alia for the redemption of the share of C. Mahamood on payment of the price of redemption and improvements together with interest thereon.
14 3 8.
100 taken at the execution of Ex.
We have number to see three other documents which were executed either by Kunhi Pakki or were in his favour.
This Mammachumma was the sister of Kunhi Pakki son of Kunhama Hajar.
It also mentioned the charge created by Kunhi Pakki for Rs.
P 16 .
In the mortgage deed Ex.
In this way, Kunhi Pakki obtained properties of a total beriz of Rs.
This companyclusion is reinforced by the fact that the boundaries in Ex.
P 6 series.
It was also claimed that the plaintiffs must pay for improvements.
This mortgage was to run for the same period for which the other mortgage deed was to run.
After the partition, Kunhammu Hajar executed a usufructuary mortgage Ex.
34 was also called Belinja Mainda Kinhana.
Kunhi Pakki also executed on August 26, 1924, a document Ex.
P 65 creating a charge on the same properties in favour of the assignees.
42 11 0, which had belonged to Mammachumma.
P 1 on the same footing.
This partition was number 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.
42 11 0 each and each share was 3/16th of the entire mortgaged property.
From this judgment, A.S. 138 of 1947 was filed by defendants 3, 5, 8, 9, 49, 59, 52, 67, 68 and 121 and A.S. 88 of 1947 was filed by defendant 58.
P 3 dated September 4, 1871.
P 6 which is the partition deed companycerning him, his share was described as follows Further, out of Belinjada land bearing a beriz of Rs.
P 2 together with the amounts relating to improvements were paid one lump sum, the land and the bond would stand redeemed.
8, the equitable doctrine of election on the ground that Kunhi Pakki had approved and adopted Exs.
By getting the term certain for 40 years, the date for redemption was shifted by them to 1902 and redemption companyld number take place till that year.
P 64 and P 65.
227 10 10 and entered in No.
P 1 certain properties which are number shown in schedule C to the plant.
P 2 and P 2 a the mortgagees were perhaps afraid that the mortgage companyld be redeemed at any time within 60 years from the date of the mortgage of 1842.
P 2 a on his behalf.
Mammachumma and Aisumma thereafter held properties of total beriz of Rs.
28 7 4 and the other a beriz of Rs.
P 2 and P 2 a then came into existence.
The first respondent purchased schedule A properties in July 1943 by Ex.
After Cheriammas death, her share of 1/8th and the mortgagee rights were divided between Mammachumma and Aisumma by Exs.
14 3 8.
P 2 and P 2 a companyld number save limitation and 1/4th share of Kunhammu Hajar was number liable to be redeemed.
P 2 by the first and the second respondents.
The property, this time, was said to be of the beriz of Rs.
P 2 and P 2 a by which Ex.
After Kunhammu Hajars death, his son Kunhi Pakki ignored the usufructuary mortgagee in favour of Cheriamma Ex.
P 2 was one of them.
P 1 read with Ex.
The mortgaged property had passed into the hands of several persons and this is why so many defendants were joined.
In other words, he was mortgaging the entire 7/16th share 1/4th plus 3/16th .
The mortgagors companyenanted that if after the expiry of the stipulated period this land was required by them and if at the time of the cultivation season of that year the mortgage amount of the usufructuary mortgage Ex.
This document recited that numberother documents were handed over, but the mortgagor undertook to send them latter.
P 59 from Hammadekunhi son of Mammachumma.
The last date for redemption thus was 1902.
P 16 it was stated that Kunhamu Hajar would redeem the property whenever he wanted it.
28 7 4 from the 1/4th share mortgaged by Kunhammu Hajarand of Rs.
14 3 8 from the share proper of Cheriamma.
P 2 was executed by the mortgagors and a companynterpart Ex.
On January 23, 1930, the heirs of Abdul Rahiman and the heirs of Korgappa executed a partition dated Ex.
P 2 a , would have been a fazuli, that is to say, an unauthorised person.
9 and the sons defts.
52, 67 and 68 of C. Mahamood the other appellants are Abdulla deft.
28 7 4 and Rs.
Kunhi Pakki died in 1934 and the first defendant, also Kunhi Pakki who is the third respondent in this appeal, is his grand son.
Each of these two sisters was allotted property of the beriz of Rs.
P 83 and undertook to redeem the mortgaged properties described in schedules A and B and to hand over possession of schedule B properties to the legal representative in the family of Madana.
P 62 for Rs.
P 2 and P 2 a .
34 and of the beriz of Rs.
P 66, there is a mention that the properties of Kumbadaje village had been obtained by an assignment from Vaikunta Bhakta and were being enjoyed as a usufructuary mortgage with a term.
34 and to be in two lots, one lot bearing a beriz of Rs.
The defence was that in so far as the share of Kunhammu Hajar was companycerned, Kunhi Pakki, who inherited it was number bound by Ex.
Later, Kunhi Pakki executed a simple mortgage Ex.
In 1857, the family of the mortgagees effected a partition by registered documents which are marked companylectively as Ex.
The plaintiffs in their suit stated that the claim was within time, because under Ex.
Kunhi Pakki then executed a simple mortgage Ex.
56 odd and also property of the beriz of Rs.
The right of Kunhi Pakki in this property was said to be Avadhi Ilidarwar usufructuary mortgage for a fixed term in lieu of interest Ex.
No boundaries were mentioned in the deed because it was stated that Kunhi Pakki was in possession of a portion of the properties in the same Warg.
These names have to be borne in mind because they are companynected with the 1/4th share which on partition went to Kunhammu Hajar by Ex.
5,500.
It may be mentioned that the two deeds which created a charge and which were to be discharged along with Ex.
50 daughter of Mammachumma deft.
P 64 dated April 10, 1913 item 18 in Ex.
Hidayatullah, J. This is an appeal by certificate granted by the High Court of Madras against its companymon judgment and decree dated November 3, 1955 in A.S. Nos.
The mortgagors also benefited, because they obtained a release of sosme properties and received Rs.
P 16 in favour of his elder sister Cheriamma in respect of his 1/4th share on September 23, 1857.
With regard to improvements, the trial Judge found that an amount of Rs.
The present appeal has been filed by Beepathumma the legal representative of deft.
The appellants are 7 of the original 139 defendants and the respondents are the two plaintiffs and the original defendant No.
