Madras High Court
Christhudas vs Rosili ..1St on 18 February, 2021
S.A.(MD)No.760 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)No.760 of 2006
and
M.P.(MD)No.1 of 2006
Christhudas ...Appellant/Appellant/2nd Plaintiff
Vs.
1.Rosili ..1st Respondent/1st Respondent/1st Defendant
2.Kamalamma ..2nd Respondent/2nd Respondent/3rdDefendant
3.Ponnachi ..3rdRespondent/3rdRespondent/4thDefendant
4.Isaac
5.Suseela
6.Raveendran(Minor)
7.Kumar (Minor)
8.Reji Kumar (Minor)
9.Lethika (Minor) ..4-9 Respondents/4-9 Respondents/6-11
Defendants
PRAYER: This Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 19.04.2005 passed
in A.S.No.92 of 2002 by the Subordinate Court, Kuzhithurai confirming the
judgment and decree dated 05.08.2002 passed in O.S.No.61 of 1983 by the
Principal District Munsiff, Kuzhithurai.
For Appellant : Mr.J.Anandhavalli
For R1 to R3 : No Appearance
For R4 : Mr.K.Vamanan
For R5 : Mr.N.Edwin Jayakumaran
For R6 to R9
(Minor) : Represented by R5
1/8
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S.A.(MD)No.760 of 2006
JUDGMENT
Aggrieved over the concurrent finding of the Courts below
dismissing the suit for redemption, the present second appeal is filed.
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
The suit properties and other properties originally belonged to one
Padmanabhapillai and Narayana Pillai, Panthakkal house Kurumathoor. On
21.12.1903, the said Padmanabhapillai and Narayana Pillai mortgaged the
property to Unmayudayan Pethiru, Unmayudayan Masilamony and
Kaliannamuthu. The said mortgage was followed by 2 purakkadams dated
24.02.1912 and 13.02.1909, respectively executed by the jenmies. The
entire jenmom right over the plaint schedule property was purchased by
Rajamma under two sale deeds dated 12.12.119 and 25.04.1119 M.E., from
the successors in interest of Padmanabha Pillai, Narayana Pillai, the
mortgagor and released the mortgage deed from the heirs of Unmayudayan
Masilamony and Kaliannamuthu in respect of 2/3 share. She had to release
1/3 share from Unmayudayan Pethiru. The rights of Rajamma devolved on
her son, namely Isac. The said Isac gave Othi to the plaintiff with a
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S.A.(MD)No.760 of 2006
direction to redeem the mortgage in the name of Unmayudayan Pethiru. In
the meanwhile, the said Pethiru gave a sub mortgage on 11.02.1124 M.E.,
to the fifth defendant, and accordingly, the fifth defendant was in possession
of the property. The property sought to be redeemed in the plaint 'B'
Schedule property. The plaintiff is an agriculturist and he is entitled to all
the benefits under the Agriculturists Relief Act. No mortgage money is
liable to be deposited, since the mortgage money has been wiped out under
the Agriculturist Relief Act. Inspite of the repeated demands, the
defendants are not amenable and hence, the suit.
4. Before the trial Court, on the side of the plaintiffs P.W.1 was
examined and Exs.A1 to A5 were marked and on the side of the defendants
D.W.1 and D.W.2 were examined and Exs.B1 to B29 were marked.
5. It is the contention of the defendants 1 to 4 that Rajamma did
not purchase 2/3 share of the suit property from the heirs of Naryana Pillai.
The plaintiff has not produced the sale deed to prove the same. The
mortgage right belonging to Masilamony and Kali Annamuthu had devolved
on Abraham by subsequent document. Rajamma also did not get release of
the mortgage right. Snehappu was never in possession of any portion of the
suit property. The defendants 1 to 4 are the heirs of Pethiru. The said
Pethiru had executed a sub mortgage in 1124 to Abraham and he was in
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S.A.(MD)No.760 of 2006
possession of the same. While so, the defendants 1 to 4 filed a suit in
O.S.No.386 of 1980 and got a decree for redemption on 14.09.1982 and
Abraham has filed appeal in A.S.No.143 of 1982 of Sub Court, Kuzhithurai
and the same is pending. The plaint mortgage dated 21.09.1982, there is a
term of five years that period is over and the superior mortgage has become
infructuous and the plaintiff has no right to redeem. The exemption from
limitation pleaded is not correct. The mortgage had become time barred
and the heirs of Pethirus. the defendants 1 to 4 have obtained jenmon right
over the suit property. In the sub-mortgage of the year 1124 Pethiru has
not admitted his liability to be redeemed by the owner. The plaintiff is not
entitled to the benefit of the Tamil Nadu Debt Relief Acts. The plaintiff is
not a debtor as defined in the Act.
6. The defendants 7 to 11 has also adopted the written statement
of the defendants 1 to 4.
7. Based on the above pleading, the following issues were framed
by the trial Court:-
1.Has the plaintiff got equity of redemption over the suit property?
2. Is the plaintiff entitled to redeem the suit mortgage?
3.Whether the suit mortgage has become time barred?
4.Is the suit within time for the reasons stated in para 5 of the
plaint?
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S.A.(MD)No.760 of 2006
5.What is the value of improvements?
6.Reliefs and costs?
Additional issues:-
1.Whether the 6th defendant is a Government Servant and thus
disabled from claiming the benefits of the Tamil Nadu Debt Relief Act and if
so whether the suit is barred by limitation?
2.Whether the suit Othi is vitiated due to collusion and lack of good
faith?
8. The trial Court after analyzing the documents on record came to
the conclusion that the suit is barred by limitation. The trial Court has also
found that the period for redemption will begin to run from 1103 M.E., i.e.,
from 18.01.1928 A.D., and as per the old Limitation Act, the period of
redemption of mortgage is 60 years. Hence, the time for redemption
expires only in the year 1988. However, as per the new Limitation Act,
which came into force from 01.01.1964, the period of redemption is only 30
years. Since the prescribed period under the new act is shorter than the old
Act, grace period of 7 years is also given for filing suits. Accordingly, the
trial Court has held that the suit is barred by limitation. The First Appellate
Court has also confirmed the judgment and decree of the trial Court.
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S.A.(MD)No.760 of 2006
9. After hearing the learned counsel appearing for the appellants
and perusing the judgment of the Courts below, this Court is of the view
that the Courts below has rightly appreciated the documents and came to
the conclusion that the suit is barred by limitation. The Courts below not
only considered the limitation, but also factually arrived at a conclusion on
various other aspects and non-suited the plaintiff. The learned counsel for
the appellants could not make out any case for admission. Such view of the
matter, I do not find any materials to admit this Second Appeal and to
interfere with the order of the Courts below.
10. In the result, this Second Appeal is dismissed confirming the
judgment dated 19.04.2005 passed in A.S.No.92 of 2002 by the Subordinate
Court, Kuzhithurai confirming the judgment and decree dated 05.08.2002
passed in O.S.No.61 of 1983 by the Principal District Munsiff, Kuzhithurai.
No costs. Consequently, connected miscellaneous petition is closed.
18.02.2021
Index : Yes/No
Internet : Yes/No
ta
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S.A.(MD)No.760 of 2006
To
1.The Subordinate Court, Kuzhithurai
2.The Principal District Munsiff, Kuzhithurai
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.760 of 2006
N.SATHISH KUMAR, J.
ta
Judgment made in
S.A.(MD)No.760 of 2006
18.02.2021
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