Nainar Moopanar vs Kumaraswamy alias Murugan

M. Karpagavinayagam, J.—The appellant is the defendant in the suit filed by the respondent in O.S. No. 71 of 1983 on the file of the Court

of Subordinate Judge, Tirunelveli, seeking the relief of redemption of the mortgage.

The trial court on consideration of the evidence adduced by both the parties, dismissed the suit. Therefore, the plaintiff, the respondent herein

filed an appeal in A.S. No. 49 of 1984 before the Principal District Judge, Tirunclveli, who in turn, decreed the suit granting the relief sought for by

setting aside the decree and judgment of the trial court. Challenging the decree and judgment of the lower appellate court, the present second

appeal has been filed.

The plaintiff''s case is this: The plaintiff is the legal heir of one Somasundarathammal to her estate. He was declared as her heir in O.S. No. 227

of 1974 on the file of District Munsif''s Court, Tirunelveli, under the decree therein. Ex.A-2 is the said decree. The defendant was a party to the

decree. On 24.4.1960 under Ex.A-1 the said Somasundarathammal effected a deed of mortgage with possession of the suit properties in favour of

the defendant for Rs. 3,000 fixing a period of five years for redemption. After execution of the same, the defendant was put in possession of the

lands and he was enjoying them in lieu of interest. Then, the plaintiff filed a suit contending that the other amount is liable to be scaled down under

Tamil Nadu Act IV of 1938 as amended by Act 8 of 1973 and that only a sum of Rs. 1,023.34 as scaled down was due towards the suit

mortgage. The plaintiff deposited the said amount and sued the defendant for redemption.

Though the defendant did not dispute the truth of the suit mortgage, pleaded that the plaintiff was not entitled to the benefits scaling down under

Act IV of 1938 as amended by Act 8 of 1973, as the plaintiff was not an agriculturist.

The point for determination in both the courts below was whether the plaintiff is entitled to the benefits of Act IV of 1938 and the decree of

redemption as prayed for by him?

Mr.Kamalakannan representing Mr. Balachander, the counsel for the appellant, would contend that the well-considered judgment of the trial

court has been disturbed by the lower appellate court by wrongly holding that the plaintiff held agricultural lands prior to the date of

commencement of the Act IV of 1938 and entitled to the benefit of the said Act, especially when the plaintiff was paying sales tax and profession

tax during the relevant period.

On the other hand, Mr. Jayasankar, representing Mr. Velusami, the counsel for the respondent, would point out that the decree passed

declaring the plaintiff as a legal heir to Somasundarathammal would show that the plaintiff had become the owner of the suit properties on

5.12.1966 itself, that is, on the death of Somasundarathammal and as such, the plaintiff as an agriculturist was certainly entitled to the benefits of

the Act IV of 1938 as he was the owner of the agricultural lands as on 1.3.1972. According to the counsel for the respondent, the lower appellate

court on consideration of the relevant materials found that the suit filed by the plaintiff is to be decreed in favour of the plaintiff by giving valid

reasons.

I have given my careful consideration to the submissions of the counsel on either side.

There is no dispute that the suit lands were mortgaged with the defendant under Ex.A-1 by Somasundarthammal. It is also not disputed that on

the death of the said Somasundarathammal, the plaintiff became the legal heir of her as per the decree passed in O.S. No. 227 of 1974 on the file

of the District Munsif''s Court, Tirunelveli. In this decree the defendant was a party. In the light of the above facts, there is no difficulty in coming to

the conclusion that the plaintiff became the owner of the suit properties as a heir of Somasundarthammal on her death on 5.12.1966. So, the

benefits under the Act as on 1.3.1972 would definitely accrue to the plaintiff, since he become the agriculturist in the year 1966.

No doubt it is true, the plaintiff admits in his cross-examination that he has been paying profession tax and that he is running a shop from 1976,

However, it must be noted that there is no material to show that he had paid profession tax for all the four half years immediately preceding

1.3.1972. Under these circumstances, it cannot be contended that the plaintiff was not the agriculturist under the Act IV of 1938. Consequently,

the finding of the lower appellate court that the plaintiff is entitled to the relief of scaling down and the decree of redemption is correct and

acceptable under law.

In view of what is stated above, I do not find any infirmity in the judgment and decree of the lower appellate court.

In the result, the second appeal fails and accordingly, the same is dismissed confirming the judgment and decree of the lower appellate court.