PRABHAKARAN Vs. M AZHAGIR PILLAI

JUDGEMENT

(1.) This appeal by special leave is filed by the legal representatives of the plaintiffs in a suit for redemption of mortgage.

(2.) Brief facts necessary for disposal of this appeal are :- One Manickam Pillai obtained a loan of Rs. 300/- from Krishna Pillai and mortgaged his property situated in Prithivimangalam Village, Thyagadurgam Taluk, (for short the suit property) in favour of the said Krishna Pillai under a usufructuary mortgage deed dated 7-9-1935 (Ex.A-1). The deed provided that mortgagee is entitled to be in possession of the mortgaged property in lieu of interest till redemption. The mortgagee (Krishna Pillai) assigned the said mortgage in favour of one Soundararaja Iyenger (also known as Soundararaja Achariar) under registered deed dated 12-2-1954 (Ex.A-3) by receiving Rs. 300/- from the assignee and delivered possession of the suit property to the assignee. The said assignee, Soundararaja Iyenger died leaving him surviving his widow Jayalakshmi Ammal and son Krishnaswamy Iyenger (defendants 1 and 2 in the suit). The mortgagor Manickam Pillai died some years after executing the mortgage deed, survived by his widow and four daughters. His widow and first daughter Kuppammal died subsequently. The second daughter also died leaving behind her son Thukkaram. His third daughter Yasodai Ammal and Thukkaram settled their share/interest in the right of redemption in favour of the fourth daughter of Manickam Pillai, namely, Sakkubai Ammal (first plaintiff) under registered deed dated 24-8-1981. Before such gift/settlement, Thukkaram, Yasodai Ammal and Sakkubai Ammal issued a notice on 21-8-1977 for redemption of the mortgage. Defendants 1 and 2 sent a reply dated 26-8-1977 refusing to comply on the ground that they were not in possession of the suit property and one Azhagiri Pillai (third defendant in the suit) was in possession of the property. Thereafter, a notice dated 9-10-1977 was also sent to Azhagiri Pillai who sent a reply dated 26-10-1977 repudiating the claim and setting up an oral sale in his favour in December, 1953/January, 1954.

(3.) The said Sakkubai Ammal filed the said suit - O.S. No.1079/81 on the file of the District Munsiff, Kallakurichi on 16-11-1981 for the following reliefs : (i) a preliminary decree for redemption of the usufructuary mortgage dated 7-9-1935 in regard to the suit property, (ii) for an account in respect of the income therefrom, from the date of discharge of the mortgage; and (iii) for a final decree for redemption of the mortgage. Plaintiffs contended that the mortgage and the right of redemption were subsisting, in view of the assignment dated 12-2-1954 being an acknowledgment and that the mortgage debt stood discharged by Section 9 of the Tamil Nadu Debt Relief Act, 1979 (for short the Debt Relief Act). In the said suit, Jayalakshmi Ammal and Krishna-swamy Iyenger (legal heirs of the assigneee of the mortgage) were impleaded as defendants 1 and 2. Azhagiri Pillai who was in possession, either as a licensee or lessee of Soundararaja Iyenger, was impleaded as the third defendant. As the said defendant had let out the suit property to Raghamathulla Sahib and Mayava Pandithan, they were impleaded as defendants 4 and 5.