Raman and Another vs Shathanathan and Others

It is argued for the appellant that the suit is not barred by limitation as found by the Subordinate Judge, and that Exhibit I did not create a

mortgage with possession. In this connection our attention is also drawn to the decision of the Full Bench of this Court in Rrishnan v. Veloo See

ante, p. 301.

As regards the construction of Exhibit I we follow the decision of the Full Bench and hold that it did not create the relation of mortgagor and

mortgagee with possession. Although the present plaintiffs--the Uralers--were not parties to that case, the reasons assigned in support of the

opinion apply with equal force to the present case. The intention of Exhibit I clearly was, while appointing the first and second defendant''s

grandfather as samudayi and authorizing him as such samudayi to collect the rent due to the devasom, to permit him to pay himself the interest due

on the money borrowed from him. Under these circumstances no question of limitation arises. Compare judgment of MORGAN, C.J., in Valia

Tamturatti v. Vira Rayan ILR 1 Mad. 229.

It is contended for the respondents that it has been decided in Muppil Nai/ar v. Sathmatha Patter S. A. No. 239 of 1886, unreported that first

and second defendants are mortgagees with possession, and that consequently the question of construction is res judicata. This point was

considered both by the Division Bench and Full Bench in the case above referred to and it was held that the matter directly and substantially in

issue in the former suit was merely whether, on the facts there found, the then plaintiffs were entitled to eject defendants and ask for an account,

without offering to pay the money due to the latter, and not whether they were mortgagees with or without possession. It was not then disputed

that defendants Nos. 1 and 2 were sumudayis. Their contention was that they were not mere samudayis, but that they also had a kanom right. It

could not have been intended by the decision in that case to determine the status of samudayis, but only to concede to them the right of continuing

to apply a portion of the rent received by them as such in payment of the amount due to them. See also Parthasaradi v. Chinnakrishna ILR 5

Mad.304 We find therefore that the suit is not barred by limitation.

As regards the account to be taken between the parties we have not been referred to any evidence which would justify us in disturbing the

Subordinate Judge''s finding on the 12th and 15th issues. The omission of the plaintiffs for so long a period to ask for an account supports the

Subordinate Judge''s finding.

We set aside the lower Court''s decree and direct that on payment by plaintiffs to defendants Nos. 1 and 2 of the sum of Rs. 5,142-13-9, the

latter do surrender the plaint property. We modify the lower Courts'' decree as above and confirm it in other respects except as to costs.

Under the circumstances of the case each party is directed to bear his own costs throughout.