Moideenkutty vs Mohammedkutty

Type Court Judgment Court Kerala Decided Jun 21, 2022

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https://sooperkanoon.com/case/1439841

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Citation: sooperkanoon.com/1439841
Court: Kerala High Court
Judge: Honourable Mr. Justice P.V.Kunhikrishnan
Decided On: Jun 21, 2022
Case Number: AS/132/2003

Parties & Advocates

Appellant / Petitioner

Moideenkutty

Respondent

Mohammedkutty

Excerpt

.....court remanded the matter after setting aside the judgment and decree of the trial court for the purpose of deciding the date of death of bavachi so as to ascertain whether it is as no. 132 of 2003 5 before 1969 or not, the year in which the right of redemption would stand barred by limitation. based on the remand order, the trial court proceeded to consider the said question and found that there is no evidence to show the actual date of death of bavachi. it was submitted that the burden is upon the plaintiffs who claim partition of equity of redemption on the premise that bavachi passed away prior to 1969.2. in fact, it is not at all necessary to go intothe question of date of death of bavachi, whether it is prior to 1969 or not. in both the situation, there may not be any difference in the legal position regarding the limitation available for redemption or foreclosure of mortgage right. only within the period of limitation available, the right of equity of redemption can be partitioned. once that equity is extinguished by way of operation of section 27 of the limitation act by the passage of time, no decree of partition can be granted and in that issue, the death of original mortgagor either prior to or after the period of limitation pales into insignificance. as no. 132 of 2003 6 the only question remains for consideration is the application of section 27 of the limitation act irrespective of the death of original mortgagor prior to the limitation or not. hence, the dismissal of the suit by the trial court deserves no interference. the appeal fails, dismissed. no costs. sd/- p.somarajan judge msp

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 21ST DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 AS NO. 132 OF 2003 AGAINST THE JUDGMENT AND DECREE 06-09-2002 IN OS 79/1989 OF SUB COURT, TIRUR APPELLANTS/PLAINTIFFS:
1 MOIDEENKUTTY, AGED 65 YEARS, SON OF THE LATE MOORIKUHARMMANAKATH SYED, TIRUR TALUK.(DIED) 2 MARIYAM, AGED 40 YEARS, DAUGHTER OF THE LATE MOORIKUHARMMANAKATH SYED, 3 SAIDALAVI, AGED 35 YEARS, SON OF THE LATE MOORIKUHARMMANAKATH SYED, RAYIRIMANGALAM AMSOM DESOM,TIRUR TALUK. ADDL. A4 MARIYAM, W/O. HAMSA, MOORIKUHARMMANAKATH, NADAKAVU POST-676302,THANOOR, ADDL. A5 PATHUMMA, W/O. MOORIKUHARMMANAKATH SYED, ADDL. A6 KHADEEJA, NEDUMPULLY HOUSE, K PURAM POST-676307, MOOLACKAL. ADDL. A7 SUHARA,W/O. HAMSAKUTTY, MOORIKUHARMMANAKATH, RAYIRIMANGALAM AMSOM DESOM, NADAKAVU POST-676302 ADDL. A8 HAREEFA, W/O. KARIM, MOORIKUHARMMANAKATH, ADDL. A9 NOUSHAD, S/O. MOIDEENKUTTY, MOORIKUHARMMANAKATH, RAYIRIMANGALAM AMSOM DESOM, ADDL. A10 SADDIQUE, S/O. MOIDEENKUTTY, ADDL. A11 ASKAR, S/O. MOIDEENKUTTY, MOORIKUHARMMANAKATH, RAYIRIMANGALAM AMSOM DESOM, ADDL. A12 RAHEENA, W/O. MUHAMED SHEREEF,
AS NO. 132 OF 2003 2 ADDL. A13 HASEENA, W/O. MUHAMED SHEREEF, ADDL.A14 NISSAR, S/O. MOIDEENKUTTY, MOORIKUHARMMANAKATH, ADDL. A15. SAIDALAVI, S/O. SAIDU, MOORIKUHARMMANAKATH, (ADDITIONAL APPELLANTS 4 TO 15 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST APPELLANT VIDE ORDER DATED BY ADVS. SRI.DINESH R.SHENOY SMT.REHANA SHUKKUR SMT.N.A.NADEERA SRI.P.SHEHARIYAR BACKER RESPONDENTS/DEFENDANTS:
1 MOHAMMEDKUTTY, S/O. MOORIKUHARAMANKATH PATHUMMA UMMA,, 2 PATHUMMAKUTTY, DAUGHTER OF MOORIKUHARAMANKATH PATHUMMA UMMA, OMACHAPURAM AMSOM DESOM, 3 MARIYAMMA UMMA, WIFE OF MUHAMMEDKUTTI, RAYIRIMANGALAM AMSOM DESOM, TIRUR TALUK. ADDL.R4 ALAVIKUTTY, S/O.KUTTY HASSAN, AGED 55 YEARS, ADDL. R5 AYISHA, D/O.KUTTY HASSAN, AGED 51 YEARS, ADDL. R6 FATHIMA, D/O.KUTTY HASSAN, AGED 49 YEARS, ADDL. R7 ABU, S/O. KUTTY HASSAN, AGED 47 YEARS, ADDL. R8 MUHAMMED KUTTY @ CHERIYA BAVA, S/O.KUTTY HASSAN, AGED 55 YEARS,
AS NO. 132 OF 2003 3 (LRS OF THE DECEASED R2 ARE IMPLEADED AS ADDITIONAL R4 TO R8 VIDE ORDER DATED 25.2.2020 IN I.A.NO.2404/15) ADDL. R9 KHADEEJA,AGED 55 YEARS, W/O. SAIDALI (LATE), ADDL. R10. SAHEER, AGED 35 YEARS, S/O. SAIDALI (LATE), ADDL. R11 NAJIYA, AGED 31 YEARS, D/O. SAIDALI (LATE), (LRS OF THE DECEASED R5 ARE IMPLEADED AS ADDL.R9 TO R11 VIDE ORDER DATED 25.02.2020 IN I.A.4/19) R1 TO R3 BY ADVS.SRI.JAMSHEED HAFIZ ADDL.R4 TO R7 & R9 BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.K.C.KIRAN SRI.VINOD RAVINDRANATH ADDL.R8 BY ADVS.A.MEENA M.R.MINI SRI.VINOD RAVINDRANATH THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS NO. 132 OF 2003 4

JUDGMENT

The legal heirs of the original plaintiff came up in appeal against the dismissal of a suit for partition by the trial court. The subject matter of the suit originally belonged to the father and mother of the original plaintiffs and defendants. Later on, after the death of father, some of the children released their respective right over the property in the name of the remaining two sons, Saidhu and Bavachi and their mother Pathumma and thereby they became the owners of the property with equal rights. They jointly executed Ext.B1 mortgage in the year 1931 in favour of the first defendant, one of their siblings. Subsequently, Bavachi and Pathumma passed away. It is thereafter the plaintiffs came up with a suit for partition with respect to the equity of redemption over the plaint schedule property. It was went upto this court and this Court remanded the matter after setting aside the judgment and decree of the trial court for the purpose of deciding the date of death of Bavachi so as to ascertain whether it is AS NO. 132 OF 2003 5 before 1969 or not, the year in which the right of redemption would stand barred by limitation. Based on the remand order, the trial court proceeded to consider the said question and found that there is no evidence to show the actual date of death of Bavachi. It was submitted that the burden is upon the plaintiffs who claim partition of equity of redemption on the premise that Bavachi passed away prior to 1969.

2. In fact, it is not at all necessary to go into

the question of date of death of Bavachi, whether it is prior to 1969 or not. In both the situation, there may not be any difference in the legal position regarding the limitation available for redemption or foreclosure of mortgage right. Only within the period of limitation available, the right of equity of redemption can be partitioned. Once that equity is extinguished by way of operation of Section 27 of the Limitation Act by the passage of time, no decree of partition can be granted and in that issue, the death of original mortgagor either prior to or after the period of limitation pales into insignificance. AS NO. 132 OF 2003 6 The only question remains for consideration is the application of Section 27 of the Limitation Act irrespective of the death of original mortgagor prior to the limitation or not. Hence, the dismissal of the suit by the trial court deserves no interference. The appeal fails, dismissed. No costs. Sd/- P.SOMARAJAN JUDGE msp

Same Court & Year Kerala · 2022 Same Parties Moideenkutty vs Mohammedkutty Same Judge Honourable Mr. Justice P.V.Kunhikrishnan

equity of redemption Court and this Court Period of limitation right of redemption Father and mother With respect to no evidence