MUTHULAKSHMI Vs. ARUMUGA PADAYACHI

JUDGEMENT

(1.) THE plaintiff who is the appellant in this second appeal having partly succeeded in her relief for redemption has come forward with the second appeal to this Court only in so far as she has been denied the right of scaling down. THE facts which led to the second appeal are as follows: THE first defendant executed the bogiam in respect of the suit property in favour of the second defendant in and by a registered document, dated 1st July, 1961 (Exhibit A-2) for a sum of Rs. 2,500. THE second defendant was a minor then and therefore, she was represented by her husband as guardian. THE second defendant was in possession of the property since the date of bogiam. Under a registered sale deed, Exhibit A-1, dated 17th March, 1966, the plaintiff came to purchase the suit property. THE plaintiff and the first defendant are agriculturists and therefore, the bogiam amount has to be scaled down in accordance with the provisions of Tamil Nadu Act IV of 1938 as amended by Act VIII of 1973. Inasmuch as the first defendant has been in possession of the suit property for 13 years the plaintiff is liable to pay as per the provisions of the Act only Rs. 1,416.66. THE said amount is deposited into Court and therefore, the plaintiff is entitled to redemption.

(2.) THE first defendant remained ex parte. In the written statement filed by the second defendant it was contended that she has paid a sum of Rs. 345 to the plaintiff-s husband and got the service connection transferred in her name. In addition to this second defendant had put up 13 electric points in the house and she has spent Rs. 400. THE plaintiff is bound to pay these amounts before she is granted a decree for redemption. THE second defendant informed the plaintiff about the damages occurring to the property, but the plaintiff did not care to repair the same. THErefore, any claim on that score is untenable. THE second defendant has not admitted that she is entitled only to Rs, 1,416.66 as stated in the plaint. THE learned District Munsif found that the plaintiff was entitled to redemption on payment of the principal amount due on the mortgage. In so far as the relief of scaling down was concerned he was of the view that the plaintiff did not prove that she was an agriculturist on the date of the incurring of the debt and hence, that relief was denied. THEre upon, the matter was taken on appeal in A. S. No. 139 of 1976 to the Court of the learned Subordinate Judge, Cuddalore. THE learned appellate Judge also concurred with the findings of the trial Judge and dismissed the appeal. Thus arises the present second appeal.

(3.) MR. Umapathi, learned counsel for the defendants-respondents, states that the basic qualification for obtaining relief under Tamil Nadu Act IV of 1938. or Act VIII of 1973, would be that on the date of the incurring of the debt the claimant must be an agriculturist and in the instant case the debt was in 1961. Exhibit A-4 is dated after the suit and therefore, that has been rightly rejected. The only other document on which reliance is placed and as a matter of fact it is admitted by the lower appellate Court is Exhibit A-6. That document by itself does not prove that on the date of the incurring of the debt the plaintiff happens to be an agriculturist, because it was a partition decree of the year 1968. There is nothing to prove that even in 1961 the plaintiff or her predecessor owned this property. Having regard to all these documents it cannot be said the basic proof or the qualification that one must show that on the date of the incurring of the debt the claimant must be an agriculturist has been established. Hence, the judgments and decrees of the Courts below can easily be sustained.