PAKIAN PILLAI Vs. THIRUNAMAKARASU PANDARAM

JUDGEMENT

(1.) The plaintiff is the appellant. The plaintiff's suit was for recovery of possession of the plaint property on payment of the mortgage amount charged on the same by virtue of Ext. AM dated 17.7.1062 executed by one Ramaswami Pillai in favour of a stranger by name Arumughom for 1400 fanams. The plaintiff stated that the plaint schedule property belonged to his maternal grand father's family, that the last male member of that family was his mother's father the said Ramaswami Pillai who died in Chingom 1064 and that at that time Ramaswami Pillai had left a widow by name Sivakami and a daughter Thankathammal by another wife Pukazhumperumal. The plaintiff is the son of this Thankathammal. Besides Sivakami there was also one Kanthimathi Ammal, widow of Ramaswami Pillai's father Arumughom Pillai. In the plaint it was stated that on the death of Ramaswami Pillai, his wife Sivakami sold half of the plaint property on 7.12.1066 to one Nagappan for 1225 fanams. Ext. B or XVII is the sale deed. Nagappan in his turn sold his right to the mortgagee Arumughom who transferred the mortgage right and the right to the equity of redemption to one Arunachalam Pandaram, the uncle of defendants 1 and 2. This mortgagee, Arumughom though had only a sale only for one half of the equity of redemption was seen to have conveyed the whole of the equity of redemption. The plaintiff was not aware how he came to transfer the remaining half. He had therefore stated that even if the mortgagee had obtained a sale deed from Sivakami Amma or Kanthimathi Amma for that half that too would be invalid. In the replication the plaintiff had stated that the other said half had been conveyed on sale by Kanthimathi to the mortgagee under Ext. C dated 15.6.1065. According to the plaintiff both Exts. B and C were invalid and that they were not supported by consideration and family necessity. These widows were not competent to completely assign away the rights over the property so as to defeat the claim of the reversioners. Kanthimathi died before 1066. Thankathammal died in 1074 and Sivakami died in Vrischigom 1088. The plaintiff stated that since the sale deeds in favour of the mortgagee were invalid and not binding on the plaintiff who was the sole reversioner after the death of Sivakami, he was entitled to redeem the mortgage Ext. AM on deposit of the mortgage amount of 1400 fanams. He had however fixed the market value of the property at 2000 fanams and paid the court fees for the same.

(2.) The suit was originally filed in the Munsiff's Court on 4.1.1100 by presenting the plaint Ext. I. On a contention raised by defendants 1 and 2 that the suit was undervalued, a commissioner was deputed to estimate the market value of the property. This was found to be Rs. 2500 and so the Munsiff passed an order to return the plaint for presentation to the proper court. The plaintiff's appeal to the District Court was dismissed. Ext. II is that order. He took up the matter in revision to the High Court and the High Court in Ext. O order confirmed the orders of the courts below. He then got back the plaint and presented it in the District Court on 3.12.1103 after paying the necessary court fees. In the plaint he had claimed that the period covered between the date of the original institution of the suit before the Munsiff's Court and the date of the presentation of the same before the District Court after the final disposal of the matter by the High Court must be excluded in computing the period of limitation for this suit. On these allegations he prayed for setting aside the sale deeds Exts. B and C, for redemption of the mortgage in respect of the plaint property, and for recovery of the mesne profits from the defendants from the date of the deposit of the admitted mortgage amount in court.

(3.) Defendants 1 and 2 in whom the right to the property vested by virtue of the sale taken by Arunachalam Pandaram, contended through their guardian that the suit was barred by limitation, that Exts. B and C were binding on the reversioner, that the plaintiff was to prove his right, title and interest in the property, that the plaint was wanting in details and that a supplementary written statement would be filed only after the fuller particulars were furnished by the plaintiff. The plaintiff by a replication asserted that he was entitled to exclude the period of pendency of the suit in the Munsiff's Court. His suit was therefore stated to be within 12 years of the death of the limited owner Sivakami in Vrischigom 1088. He asserted that the plaint property was Ramaswami Pillai's ancestral property and that even if it be Ramaswami Pillai's self acquisition it had become family property with his death and that the plaintiff was entitled to claim the same.