Saraswathi @ Mohammed Pathumal ... vs C.Kumaresan (Died)
2023 Latest Caselaw 3802 Mad

                                                                                  S.A.No.1828 of 2001


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 05.04.2023

                                                  CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                              S.A.No.1828 of 2001

                Saraswathi @ Mohammed Pathumal Beevi                 ... Appellant / Appellant /
                                                                                    Plaintiff

                                                    Vs.

                1.C.Kumaresan (died)
                2.C.Rajavelu                                   ... Respondents 1 & 2/
                                                               Respondents / Defendants
                3.K.Swornam
                4.K.Pazhani
                5.K.Subbah
                6.Rajam
                7.K.Chandran
                8.Mallika                                            ... Respondents 3 to 8
                (R3 to R8 are brought on record as LRS of deceased R1 vide Court order dated
                24.01.2020 made in C.M.P.(MD)No.8229 of 2016 in S.A.No.1828 of 2001)


                PRAYER: This Second Appeal filed under Section 100 of the Civil Procedure
                Code, praying this Court to set aside the decree and judgment dated 12.02.2001
                made in A.S.No.43 of 1995 on the file of the Subordinate Court,


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                                                                                               S.A.No.1828 of 2001


                Padmanabhapuram, confirming the decree and judgment dated 22.07.1991 made in
                O.S.No.201 of 1988 on the file of the Principal District Munsif Court,
                Padmanabhapuram.


                                           For Appellant      : Mr.K.Rajeshwaran
                                           For R2             : Mr.J.Emily Jegan
                                           For R3 to R8       : Mr.P.Thiagarajan


                                                           JUDGMENT

The plaintiff / appellant filed a suit in O.S.No.201 of 1988 on the file of

the Principal District Munsif Court, Padmanabhapuram for redemption of recovery

of possession of the suit properties without payment of any mortgage amount and

costs against the defendants and the same was dismissed through a decree and

judgment dated 22.07.1991. On appeal in A.S.No.43 of 1995, the Subordinate

Court, Padmanabhapuram, through a decree and judgment dated 12.02.2001,

dismissed the same by confirming the decree and judgment of the trial Court dated

22.07.1991. Aggrieved by the same, the plaintiff is before this Court.

2.Mr.K.Rajeshwaran, learned counsel appearing for the appellant would

submit that the vendor and the predecessor of the appellant is the mortgagor, who

mortgaged the property in the year 1107 M.E.. Then before redemption, Act IV of

https://www.mhc.tn.gov.in/judis S.A.No.1828 of 2001

1938 came into force and hence, without payment of the mortgage money, he is

entitled to redeem the mortgaged property. However, the Lower Appellate Court

has not followed the provisions of Rule 31 Order 41 C.P.C., and the sale in favour

of the defendants hit by the provisions of Section 101 of Transfer of Property Act,

especially, when the mortgage in favour of the original mortgagee Pakia Neelan

Nadar in the year 1107 M.E., had not been redeemed by the defendants. The

plaintiff, who derives title through the purchase of equity of redemption over the

portion of the property from the son of the first mortgagor and the remaining

portion having purchased from the heirs of the original mortgagee, is entitled to

file a suit for redemption of mortgage.

3.He would further submit that the Courts below erroneously held that

the provisions of Hindu Succession Act, 1956 will apply to the case, ignoring that

even prior to the commencement of the said Act, the said Palpan Subbiah died

issueless and the other brother Palpan Muthaiyya, is being only the heir upon

whom the entire property devolved and on his death, his son Sundararajan sold the

property to the husband of the plaintiff on 26.05.1954. Admittedly, the plaintiff

being the agriculturist is entitled to the benefit of Act 81 of 1973 and therefore, the

suit was filed in time and not barred by limitation.

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4.It is his further contention that the defendants, who have not redeemed

the original mortgage of the year 1107 M.E., are not entitled to the suit property

and if at all the defendants can at the best have only equitable right to get the

redemption of the money paid under Ex.A.8 and A.9, if such payment was proved

to have been with bona fide intention. Therefore, the trial Court as well as the

First Appellate Court erroneously dismissed the suit and appeal on the ground of

limitation as well as the plaintiff is not entitled to file a suit as neither she is a

mortgagor nor she is entitled to the benefit of Debts Relief Act.

5.The learned counsel appearing for the 2nd respondent as well as the

respondents 3 to 8 would submit that within a period of 30 years from the date of

mortgage, the original mortgagor should have redeemed the property. If he failed

to redeem the property within the stipulated period, the suit should have been filed

within 12 years. However, they have neither redeemed the mortgage within 30

years nor filed any suit within 12 years. Therefore, the suit is barred by limitation

and further, the appellant is not the original mortgagor and therefore, she is not

entitled for any benefit whatsoever under any of the statue. Therefore, there is no

merit in this appeal and the same is liable to be dismissed.

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6.Heard the learned counsel appearing on both sides and perused the

materials available on record carefully.

7.At the time of admitting this Second Appeal, this Court formulated the

following substantial questions of law:-

“(a)Whether the First Appellate Court is right in dismissing

the appeal on the ground of limitation?; and

(b)Whether the Trial Court is right in holding that the plaintiff

is not a owner of the property and not entitled to file the suit for

redemption of sub-mortgages?”

8.The case of the plaintiff is that the suit properties originally belonged

to one Palpan Velan Subbian Velar and his brother Palpan Velar Muthayyan. They

jointly executed usufructuary mortgage of the suit properties to one Pakia Neelan

Nadar under a mortgage deed No.1474 of 1107 M.E for a sum of Rs.3,000/-

(Rupees Three Thousand Only) and handed over the possession to the mortgagee.

The mortgagee, while in possession of the suit properties, filed a suit in

O.S.No.479 of 1110 M.E for mortgage money against the mortgagor and the same

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was dismissed. On appeal, they entered into a compromise and the matter was

settled for the amount of Rs.2000/- (Rupees Two Thousand Only). Subsequently,

the said mortgagee, namely, Pakia Neelan Nadar executed a sub-mortgage of some

of the suit properties to one Narayanan Velar, S/o.Sudalamuthu Velar, reserving an

intermediary right of redemption one for himself under Document No.3153 of

1116 for an amount of Rs.499/- (Rupees Four Hundred and Ninety Nine Only).

Therefore, the sub-mortgagee-Narayanan Velar got possession of the mortgaged

property.

9.The remaining portion of the suit properties was sub-mortgaged to one

Esakki, S/o.Nadan by the original mortgagee-Pakia Neelan Nadar, reserving an

intermediary right of one Fanam for himself under Document No.3154 of 1116

surrendering the possession forthwith. In the year 1119 M.E., the above said

sub-mortgagee-Esakki surrendered his sub-mortgage right to the other

sub-mortgagee-Narayanan Velar under Document No.2260 of 1119 M.E., and thus,

the said Narayanan got possession of the entire suit properties.

10.While so, one of the original owners Palpan Velan Subbian Velar died

issueless and his right over the equity of redemption devolved on his brother,

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namely, Palpan Velar Muthayyan and he became the absolute owner. His only son,

namely, Sundararajan, sold the equity of redemption over the suit item 2 to the

husband of the plaintiff for valid consideration on 26.05.1954 under Document

No.2093. The heirs of the original mortgagee's executed a deed with a recital to

redeem the sub-mortgages on 23.05.1981 over the suit properties to the husband of

the plaintiff. The husband of the plaintiff gifted the suit properties and other

properties to the plaintiff on 05.02.1982 and the same was accepted. Therefore,

the plaintiff is entitled to redeem the sub mortgages of the year 1116 M.E., as the

owner of the suit item 2 and as the original mortgagee also with regard to both the

items. The sub mortgages of the year 1116 M.E., and 1119 M.E., passed hands

and now, the defendants were in possession of the suit properties as assignee-

mortgagees.

11.Since the plaintiff is an agriculturist and a debtor as defined in Act IV

of 1938 and as the mortgages sought to be redeemed are more than 30 years, no

mortgage amount need to be paid. As Act IV of 1938 applies, the plaint mortgage

is not barred by limitation. Therefore, the plaintiff requested the defendants to

surrender the possession of the suit properties orally on 28.02.1988, for which,

they are not amenable. Hence, the suit for redemption is filed.

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12.It is the case of the defendants that for the mortgage of the year 1107

M.E., limitation for redemption of mortgages is 30 years. Therefore, the original

mortgagor should have redeemed the property within 30 years. If he failed to

redeem the property within 30 years, the suit should have been filed within 12

years. However, they have neither redeemed the mortgage within 30 years nor

filed any suit within 12 years. Therefore, the suit is barred by limitation and

further, the plaintiff is not the original mortgagor or she did not get any assignment

from the mortgagors and hence, she is not entitled to get any benefit and as the

original mortgagors themselves lost their right, the alleged purchase of the

plaintiff is not valid under the law.

13.Admittedly, the original mortgage was in the year 1107 M.E., and the

original mortgagors had not repaid the mortgage money or redeemed the

mortgaged property or filed any suit for redemption of the suit properties within a

period of limitation. Therefore, they lost their right of redemption. Further, the

appellant / plaintiff is neither the mortgagor nor the assignee. Therefore, the suit

filed by the plaintiff in the year 1988 is obviously barred by limitation and she is

not entitled to file a suit for redemption. Such view of the matter, the substantial

questions of law formulated by this Court are answered accordingly.

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14.In view of the above, this Court is of the view that both the Courts

below have rightly appreciated both the oral and documentary evidence and given

its finding and the same do not warrant any interference by this Court.

Accordingly, this Second Appeal stands dismissed. No costs.

05.04.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No

MYR

To

1.The Subordinate Court, Padmanabhapuram.

2.The Principal District Munsif Court, Padmanabhapuram.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis S.A.No.1828 of 2001

P.VELMURUGAN, J.

MYR

Judgment made in S.A.No.1828 of 2001

05.04.2023

https://www.mhc.tn.gov.in/judis