KRISHNA PILLAI Vs. RAMAN CHARAN

JUDGEMENT

(1.) PLAINTIFF in O. S. No. 131 of 1977 on the file of the Addl. Subordinate Judge's Court, Parur, is the appellant. Suit was for rendition of accounts i for recovery of the mortgage amount.

(2.) PLAINT allegations may briefly be summarised as follows: - Plaintiff and defendant were friends and they started a partnership business in copra 1967, and till 1973, the defendant accounted for the profits. Thereafter defendant had made several payments to the tune of Rs. 1,000/-. The account was settled on 31st January, 1975 whereupon it was found that an account of Rs. 7,413-73 was due to the plaintiff. After 1975, the defendant did not settle the account, nor did he pay any amounts due to the plaintiff as profits A usufructuary mortgage deed evidenced by Ext. A1 dated 2-3-1960 was executed by die defendant in favour of the plaintiff stipulating consideration of Rs. 1, 700/-. But in 1975, the defendant without consent or permission or knowledge of the plaintiff had taken possession of the building and he started running a provision store therein. Though the defendant promised to fix reasonable rent for the building he did not do so. On these allegations, the suit was filed.

(3.) LOWER court, on a consideration of the oral and documentary evidence came to the conclusion that Ext. A2 is in the handwriting of the defendant and that would show that an amount of Rs. 8,737,75 was due to the plaintiff as on 31-1-1975. It however, held that the claim was barred by. limitation. As regards the usufructuary mortgage, the court below found that the case of the defendant that no consideration had passed cannot be accepted, that though the document purports to be a usufructuary mortgage, no possession was made over to the plaintiff and that since the suit was not filed within 12 years from the date of Ext. A1 the suit was barred by limitation. In the above view of matter, lower court dismissed the suit.