LEKSHMI DEVAKI KUNJAMMA Vs. THOMMAN IYPE

JUDGEMENT

(1.) The plaintiff is the appellant. The suit was for arrears of Pattom due from defendants 1 and 2. The properties in S. Nos. 127/6 A and 127/5 A were mortgaged by the 1st defendant and his father in favour of the plaintiffs fathers deceased mother. The mortgagors continued to be in possession of the mortgaged properties on a Varam arrangement till 1105 when the defendants took the same on a pattom basis agreeing to pay 95 paras of paddy a year and one rupee towards Onakazhcha. The plaintiff stated that the pattom had been paid on this basis till the end of 1114. The pattom for the subsequent years is in arrears. The plaintiff is entitled to realise the arrears of Pattom. The suit was filed on 17.12.1119 and since the pattom due for 1115 had fallen in arrears more than three years before the date of the suit, the suit was barred by limitation. It was stated that on account of the two debt relief petitions filed by defendants 1 and 2, the liability to pay the Pattom of 1115 had been admitted by them and that the suit having been filed within three years of such acknowledgment was not barred by limitation. Both the defendants filed separate written statements. Their contentions were identical.

(2.) The defendants stated that under the partition deed in their family each of them had become liable to pay one half the mortgage amount and the Varam, that this arrangement had been accepted and acquiesced in by the plaintiffs predecessor, that the alleged lease transaction of 1105 was not true, that the old Varam arrangement continued even now, that the right to claim Pattom for 1115 was barred by limitation, that the statements contained in the Debt Relief Act petition, were not sufficient or legal to constitute a valid acknowledgment, that the 1st defendant had paid a premium of Rs. 100, that he was therefore to pay only 40 paras of paddy as his share, that the price of paddy and rate of interest were excessive, that there was no provision for payment of Onakazhcha and that the plaintiff was entitled to a decree only as contended. They had also a contention that the arrangement under which the plaintiffs fathers mother had advanced money was by a transaction in the nature of a hypothecation bond. The plaintiff had filed a replication denying the contentions of the defendants.

(3.) The court below found that the defendants were in possession of the property under the lease arrangement alleged by the plaintiff, that there was no evidence that the 1st defendant had paid a premium of Rs. 100, that the Pattom as mentioned in the plaint was due to the plaintiff, that the right to claim the Pattom for 1115 had become barred by limitation, that the acknowledgment relied on by the plaintiff was not sufficient to save limitation and that the plaintiff was entitled to a decree for the amount claimed in the plaint except the Pattom for 1115. The plaintiffs claim for Onakazhcha was disallowed.