KUNHU MOIDEEN Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) These appeals arise from the judgment and decree in O. S. 86 of 1122 on the file of the Anjikaimal District Court which was a suit to enforce a simple mortgage by sale of one of the mortgaged items. The mortgage was in the sum of Rs. 2150/- and it was executed by the father of defendant 1 to the plaintiff's deceased father on 28-5-1097. The mortgage money was made payable on or after 30-5-1098. The mortgagor is also dead. After he died his heirs consisting of a son (Defendant 1) and four daughters partitioned his estate. While distinct portions of the mortgaged properties went to one and all of them the liability was apportioned among defendant 1 and daughter Rabbia. The former was to pay Rs. 900/- and the balance Rs. 1250/- was to be discharged by the latter. The partition was in 1104 and defendant 1 was a minor at that time. On his coming of age the plaintiff obtained a registered acknowledgment (Ext. A dated 27-5-1110) of the mortgage debt from him. The suit was brought on 20-5-1122 when twelve years were about to expire from the date of the acknowledgment. Defendant 1 raised several contentions but they were all repelled by the learned temporary additional Judge who tried the suit and A. S. 23 is the appeal by defendant 1 from his decision. Though the several points urged before the Trial Court are seen reiterated in the memorandum of appeal, Counsel for the appellant urged only three points before us and these points alone need be considered in that appeal.

(2.) Before proceeding to consider them it may be stated that Defendant 2 in the suit is the appellant in the connected appeal A. S. 25. He claimed to be an assignee of the lessee's interest over the plaint item. His contention was that the lease had originated prior to the mortgage and the leasehold interest could not therefore be affected by the decree to be passed in the suit. According to him he was entitled to fixity of tenure under the Verumpattadars' Act. The lower Court found that the lease was not anterior to the mortgage and that the leasehold interest will therefore he subject to the decree. Hence the appeal by him.

(3.) A. S. 25 can be easily disposed of. The lease is said to have originated in 1092 but there is no contemporaneous document to evidence it. After defendant 1 acknowledged the debt in 1110 notices passed between him and his so called lessee. Soon afterwards that lessee assigned his interest to defendant 2 under Ext. 5. The document mentions for the first time that the lease was of the year 1092. Defendant 2 informed Defendant 1 about the assignment as per the notice Ext. 3. The lower court has mentioned three main grounds to show that the lease set up is not true. The suit mortgage (Ext. B) states that the mortgagor was in direct possession of all the mortgaged items. As a piece of evidence this is very valuable. Secondly the partition deed of 1104 (Ext. 4) goes to show that at the time of the partition there was only one property outstanding under a lease. That however was not the plaint item. The evidence of PW 1, which the lower court characterises as respectable evidence, shows that all except one item were in the direct possession of the sharers. He, PW 1 was the principal mediator in effecting the division. Thirdly the 1st defendant said that the accounts maintained by his father would show that the property was outstanding with the lessee from 1092 onwards. These accounts have not been got produced nor has defendant 2 produced any vouchers to show that his predecessor in interest had paid pattom for any period prior to 1098. In this state of the evidence we cannot find our way to hold that there was any lease anterior to the mortgage or interfere with the lower court's decision repelling the contentions of defendant 2. His appeal will therefore stand dismissed with costs.