A S RAMASWAMY MUDALIAR Vs. P S THIRUNAVUKARASU

JUDGEMENT

(1.) AGGRIEVED by the dismissal of the suit O.S No. 41 of 1979 on the file of the Subordinate Judge's Court, Namakkal the plaintiff has preferred this appeal. The suit is for recovery of a sum of Rs. 10,941. 50 from the 1st defendant. Defendants 2 to 4 remained ex parte . The 4th defendant is the mother and defendants 1 to 3 are her sons. The suit amount represents the balance amount due under the mortgage deed, Ex. A1, executed by defendants 1 to 4 on 22-1-1961 in favour of the plaintiff for a sum of Rs. 25,000 with interest. The mortgaged property was the suit B schedule property and certain other properties. Admittedly, the following payments were made towards the mortgage amount du :? (1) On 17-2 1964, Rs. 4,500 was paid towards interest for three years (Ex. A2 is the relevant endorsement on the mortgage deed, Ex. A1 to that effect made by defendants 1 to 3) and (2) on 11-4-1965 Rs. 2,812. 50 was paid towards interest for some months (the relevant endorsement by defendants 1 to 3 is Ex. A3 on the mortgage deed Ex. A1). Prior to 11-4-1965, that is on 7-3-1965, admittedly there was a partition in the family of defendants 1 to 4 under Ex. A7. Inter alia , the amount due under the mortgage on that date, was divided between defendants 1 to 3 and the suit B schedule was allotted to the 1st defendant in the said partition. Then on 12-4-1966, a sum of Rs. 6,000 was paid towards the mortgage amount as shown by Ex A4. Then defendants 2 and 3 wanted to pay off their share of the mortgage liability as per the partition deed by mortgaging the properties allotted to them in the partition to the land mortgage bank and obtaining loan from the bank. So, on behalf of defendants 2 and 3, the 1st defendant wrote the letter Ex A8 to the plaintiff on 28-10-1966 asking the plaintiff to give consent to release those properties from the mortgage liability. The plaintiff accepted to do so and accordingly received Rs. 14,670 from the land mortgage bank on behalf of defendants 2 and 3 on 29-3-1987 and the relevant endorsement on the mortgage deed Ex. A1 to that effeet is Ex. A5. The plaintiff also executed release deed, Ex. A9 dated 7-4-1967 releasing defendants 2 and 3 from their liabilities under the mortgage deed, Ex. A1, and in respect of the properties allotted to them in the above said partition.

(2.) SO, according to the contention of the learned Counsel for the plaintiff the original mortgage under Ex. A1 was split up, once the plaintiff accepted the above said course suggested by the 1st defendant on behalf of the defendants 2 and 3 by his letter dated 28 10-1966 No doubt there was no specific evidence regarding when actually the plaintiff accepted to the said course. There was also no oral evidence let in by any party in the suit. However, the learned counsel contended that since, on 29-3-1967, the plaintiff received the above said Rs. 14,670 on behalf of defendants 2 and 3 pursuant to Ex. A8 letter, it should be taken that the plaintiff had accepted to the said course contained in Ex. A8, at least a moment prior to receipt of Rs. 14,670 on 29-3 1967. From that moment of acceptance, according to the learned Counsel for the plaintiff the splitting of the original mortgage had taken place.

(3.) ON the other hand, the 1st defendant-1st respondent claimed that he was entitled to the benefit's of the Tamil Nadu Agriculturists Relief Act 1938 (Act No. IV of 1938) (hereinafter referred to as ?the Act) and that taking into consideration the abovesaid payments made right from the begining , the total sum paid came to Rs. 29,892 50 (there being no splitting up of the mortgage debt) and that the said figure having exceeded the principal mortgage sum of Rs. 25,000 under Ex. A1, no further amount was due as per S. 8(3) of the Act. There was also an endorsement made on 12-7 1979 while the suit was pending, whe eby the plaintiff admitted that the 1st defendant was an agriculturist entitled to the benefits of the said Act.