Odappayee Ammal and Others vs Ramanathan and Another

Sathasivam, J.—Plaintiffs are the appellants in the above second appeal. They filed a suit for redemption. The case of the plaintiffs as found

in the plaint are as follows:--

The suit property measuring about 1 acre 29 cents comprising in R. S. No. 400 of Naganakulam village and several other properties belonged to

Pethan Kudumban. The said Pethan Kudumban executed a registered mortgage deed on 5-10-1964 with possession in favour of the first

defendant for a sum of Rs. 4,500/-. Possession was handed over to the first defendant in pursuance of the said mortgage and the first defendant is

in possession of the property as mortgagee. The period of redemption was fixed at 10 years. The mortgagor Pethan Kudumban died in the year

1965 without redeeming the mortgage with possession. The first plaintiff is the widow of Pethan Kudumban. The second plaintiff is the daughter

and the third plaintiff is the only son through the second daughter Bommi. By virtue of Hindu Succession Act, 1956, the plaintiffs have become the

legal heirs and are entitled to redeem the mortgage and recover possession. Plaintiffs are debtors under Act 40 of 1979. By virtue of the Tamil

Nadu Debt Relief Act 40 of 1979, since the mortgagee has been in possession of the whole of the mortgaged property for an aggregate period of

more than 10 years, the entire mortgage debt shall be deemed to have been wholly discharged from the expiry of the period of ten years i.e., 5-10-

1974. It is also contended that the second defendant is closely related to the plaintiffs and there has been misunderstanding and enmity as between

the plaintiffs, Pethan Kudumban and the second defendant for a long time. He was giving troubles taking advantage of his influential position as the

Village Panchayat President. Since the second defendant is telling that he has got an assignment of the mortgage in his favour from the first

defendant, he has also been impleaded as a defendant to get a binding decree on him as well. Hence the plaintiffs issued a registered notice dated

22-9-1978 to both the defendants. The defendants received the same, but they have not sent any reply. With these averments, the plaintiffs prayed

for a decree for redemption of the mortgage.

The first defendant mortgagee remained ex parte. The second defendant has filed a written statement in the following manner :--

The plaintiffs are not the owners of the suit property. The first plaintiff''s husband Pethan Kudumban had no right over the suit property. The said

Pethan Kudumban is the cousin of the second defendant. The second defendant''s father died when he was two years old and the first plaintiff''s

husband Pethan Kudumban was managing the property belonging to the minor 2nd defendant. In order to appropriate the property, the said

Pethan Kudumban executed an othi deed in the year 1964 in favour of the first defendant. Pethan Kudumban had no right to claim any such othi

deed. After becoming major, the second defendant obstructed the first defendant from enjoying the property and he was told by the first defendant

that he has got right to enjoy the property for ten years. After expiry of the 10 years period, the 2nd respondent paid a sum of Rs. 4,500/- to the

first defendant and redeemed the suit property. There is no subsisting mortgage to be redeemed, since the 2nd defendant has already redeemed the

usufructuary mortgage from the first defendant. Hence the suit is not maintainable. The heirs of Pethan Kudumban are also not entitled to redeem

the suit property. In order to protect his right, the 2nd defendant paid the mortgage amount to the 1st defendant and redeemed the property

encumbranced by the cousin, with these averments, the 2nd defendant prayed for dismissal of the suit with costs.

First plaintiff was examined as P.W. 1 and Exs. A-1 to A-9 were marked in support of the plaintiffs'' case. On the other hand, the second

defendant was examined as D.W. 1 and Exs. B-1 to B-13 were marked in support of his defence.

The trial Court, after framing necessary issues more particularly, whether the plaintiffs are entitled to redeem the suit mortgage deed and whether

the mortgage deed is subsisting, on the basis of the oral and documentary evidence let in by both parties, came to the conclusion that the plaintiffs

are entitled to get a decree for redemption and accordingly, by judgment and decree dated 22-10-1981, decreed, the suit as prayed for with

costs.

Aggrieved by the judgment and decree of the trial Court, the 2nd defendant filed appeal A.S. No. 37 of 1982 on the file of Sub Court,

Madurai. The lower appellate Court framed the following point for determination :--

Vernacular matter omitted

According to the lower appellate Court, since the plaintiffs failed to establish their title to the suit property, and without necessary pleadings, they

are not entitled to redeem the suit property, consequently, allowed the appeal and dismissed the suit filed by the plaintiffs. 6. Against the Judgment

and decree of the lower Appellate Court, the plaintiffs filed the above second appeal before this Court. While entertaining the second appeal, this

Court has framed the following substantial question of law :--

Whether the second defendant who redeemed the mortgage under Ex. B-11 would be entitled to deny the title of the mortgagor to the suit

property?

Mr. T. R. Mani, learned senior counsel appearing on behalf of the appellants, after taking me through the various factual position followed by

findings of the trial Court as well as the lower appellate Court, contended that the entire approach of the lower appellate Court in disposing of the

appeal is opposed to all canons of justice and he also pointed out the unnecessary unwarranted comments made by the appellate judge while

dismissing the suit filed by the plaintiffs. According to the senior counsel, in a suit for redemption, if the conditions in the mortgage deed are fulfilled,

the mortgagor is entitled to redeem his mortgaged property and there is no need to go into the other aspects as propounded by the lower appellate

Court, hence he prays for interference in the second appeal by restoring the decree of the trial Court. On the other hand, Mr. T. R. Rajagopalan,

learned senior counsel appearing on behalf of the first respondent/second defendant, contended that the lower appellate Court is right in going into

the title of the suit property and inasmuch as the plaintiffs have no absolute title and without necessary pleadings, they cannot maintain the present

suit and prayed for dismissal of the second appeal.

I have carefully considered the extensive arguments of both the senior counsel. At the outset, it is seen that the present suit is only for a simple

suit for redemption. Pethan Kudumban, husband of the first plaintiff and father of 2nd plaintiff and grand-father of 3rd plaintiff, executed a

registered suit mortgage deed dated 5-10-1964 (Ex. A-1) with possession in favour of the first defendant for a sum of Rs. 4,500/-. Possession

was handed over to the first defendant in pursuance of the said mortgage and the first defendant was in possession of the property as a mortgagee.

As per the recital, the period of redemption was fixed at 10 years. The mortgagor, namely Pethan Kudumban, died in the year 1965 without

redeeming the mortgage with possession. After the death of Pethan Kudumban, by virtue of Hindu Succession Act, 1956, the plaintiffs being the

legal heirs are entitled to redeem the mortgage and recover possession from the first defendant. It is the further case of the plaintiffs that since they

are debtors under Tamil Nadu Act 40 of 1979 and the mortgagee has been in possession of the whole of the mortgage property for the aggregate

period of more than 10 years, the entire mortgage deed shall be deemed to have been wholly discharged from the expiry of the period of 10 years

i.e., 5-10-1974. In as much as the second defendant, who is a third party to Ex. A-1 has redeemed the mortgage without the knowledge of either

of the plaintiffs, it necessitated the plaintiffs to file the present suit impleading the second defendant also in order to get a binding decree. On the

other hand, it is the case of the second defendant that the first plaintiffs husband Pethan Kudumban had no right over the suit properly. According

to him, the mortgagor under Ex. A-1 had no title over the property. It is the further case of the 2nd defendant that his father died when he was two

years old and the first plaintiff''s husband viz., Pethan Kudumban was managing the property belonging to the minor 2nd defendant. It is also

contended by the second defendant that in order to appropriate the property, the said Pethan Kudumban executed the othi deed in the year 1964

in favour of the first defendant. According to him, Pethan Kudumban had no right to claim any such othi deed. Since he alone is entitled to title over

the suit property, in the year 1974, he had paid a sum of Rs. 4,500/- to the first defendant and redeemed the property, hence he contended that

the present suit filed by the plaintiffs is not maintainable and the same is liable to be dismissed.

One Kuppan Kudumban had 2 sons, namely, Vellaichamy and Kuppan Kudumban. Pethan Kudumban is the son of Vellaichamy and plaintiffs

inherited the property from Pethan Kudumban as legal heirs. Second defendant is the son of Kuppan Kudumban. Kuppan Kudumban died in the

year 1950 and Pethan Kudumban died in the year 1965. There is no dispute about the relationship of the plaintiffs and the 2nd defendant. It is also

seen from the records produced by the parties that the heirs of Senior Pethan and Raman were living jointly and they purchased the properties in

the name of Kuppan Kudumban, the manager of the joint family. In order to substantiate the title. Plaintiffs have produced Exs. A-2 and A-3. On

the other hand, the second defendant has produced Ex. B-1 to show that the suit property is the absolute property of his father Kuppan

Kudumban. The documents produced by the plaintiffs as well as the second defendant amply show that the suit property has been allotted to the

husband of the first plaintiff. The trial Court has analysed each document and came to the conclusion that the suit property is the property of Pethan

Kudumban. On the other hand, though the title of the suit property is immaterial, the lower appellate Court confused the matter and erroneously

came to the conclusion that the plaintiffs have not even pleaded regarding their title of the suit property.

The other important factor is the non-examination of first defendant-mortgagee Under Ex. A-1. Even though he has been impleaded as first

defendant, he did not come and depose regarding the circumstances under which the second defendant has discharged the mortgage when he was

not a party to the mortgage deed Ex. A-1. It is interesting to note that the second defendant in his evidence as D.W. 1 even in the chief-

examination he deposed that ""**.

In the cross-examination, he has admitted that he was a Panchayat President from 1960"" ""1960 **"" He further deposed that ""**

All the above admission of D.W. 1 viz., 2nd defendant in the cross-examination amply shows that even though he was aware of the execution

of Ex. A-l, he did not take any step either to issue notice to the mortgagors or to the present plaintiffs, disputing the execution of the same. As

stated in his evidence, he being the Panchayat President, it is surprising how he failed to take any step if the suit property belongs to him or his

father. Admittedly, on the date of Ex. A-1, second defendant was 24 years and he was also a Panchayat President. He also admitted that he did

not care to examine the mortgagee as one of the witnesses in order to prove his claim. He also admitted that he did not send any notice for

redemption of the amount paid by him to the first defendant for discharging the mortgage. In the cross-examination, he has deposed in the following

manner :-- ""**"".

As stated above, the 2nd defendant has not taken any step to prove that the suit property belonged to his father absolutely. The evidence available

amply shows that the suit property was purchased with the joint family funds in the name of 2nd defendant''s father and the same was enjoyed by

the joint family, and it has been allotted to the share of the first plaintiff''s husband during partition. The plaintiffs as the heirs of Pethan Kudumban

are entitled to redeem the property mortgaged to the first defendant. After the expiry of the period as found in Ex. A-1, the plaintiffs are entitled to

redeem the mortgaged property. The second defendant has no right over the suit property and he is not entitled to redeem the same. According to

the 2nd defendant, he has redeemed the suit property in the year 1974 by paying Rs. 4,500/- and got back the original othi deed. There is an

endorsement in Ex. B-11 (Ex. B-12) as if the mortgagor, first defendant has received Rs. 4,500/- from the second defendant. No one has attested

the above endorsement, nor the mortgagor-first defendant corroborated the evidence of the 2nd defendant. He conveniently kept out of the

proceedings. The second defendant has also admitted that he had received suit notice from the plaintiff. He did not send any reply for the sake of

repetition I am once again mentioning that before redeeming the property the second defendant has not given any notice to the mortgagor. He

failed to inform the plaintiffs that he is going to redeem the mortgage. If he has any right over the property, he could have filed a separate suit to

establish his title, however, he has not done so. As rightly pointed out by the learned trial Judge, the first defendant is not expected to receive the

mortgage amount from a third party, namely, the second defendant, who is a stranger to first defendant and surrender possession of the property to

him. Admittedly from 1964 to 1979 the second defendant has not taken any steps with respect to the suit property.

For all these reasons, I am unable to accept the conclusion of the lower appellate Judge. As pointed out by me at the out-set, the Lower

Appellate Judge has wrongly determined the point for disposal of the appeal which itself is illegal. I am satisfied that the plaintiffs are entitled to

redeem the mortgage and the trial Court on consideration of the entire evidence, rightly decreed the suit as prayed for. The lower appellate Court

on misconception and on erroneous view, dismissed the suit filed by the plaintiff. While accepting the arguments of the learned senior counsel for

the appellant, I am unable to accept the view expressed by the Lower Appellate Court, I am also of the view that the Lower Appellate Court has

exceeded its limit in making unnecessary and unwarranted comments against the Presiding Officer of the trial Court. Since I am satisfied that the

plaintiffs are entitled to a decree for redemption, the judgment and decree of the Lower Appellate Court rendered in A.S. No. 37 of 82 are hereby

set aside and the judgment and decree in O.S. No. 650 of 1979 on the file of District Munsif, Melur, are restored. Accordingly, the second appeal

is allowed with costs.

Appeal allowed.