BALAMMAL NADACHI Vs. SELVANAYAGAM ALIAS KUMARACHANDRAPERUMAL

JUDGEMENT

(1.) THE defendants 1 and 2 who suffered decree, have filed this Second appeal.

(2.) THE suit properties, namely, plaint 'A' schedule properties, originally belonged to one Perumal Kunjirayumman. He died and his entire rights devolved on his 3 sons, namely, defendants 2 and 3 and the plaintiff. According to the plaintiff, he is entitled to one third share in the 'A' schedule property. Item No.1 in 'A' schedule properties was the subject matter of a prior mortgage with the 1st defendant. Subsequently, the same was renewed under the mortgage deed dated 29.1.1951 marked as Ex.A1. Even item No.2 which is also described as 'B' schedule property, was the subject matter of prior mortgage in favour of a stranger. THE said mortgage was executed by Perumal Kunjirayumman and his brother Chidambaranathan on 29.10.1912. Under Ex.A1, it is stated that that mortgage has to be redeemed from the prior mortgagee, as the mortgagee subsequently assigned his entire mortgage right in respect of plaint 'B' schedule property in favour of one Sevithiyan Nadar, son of Anthony. THE said Sevithiyan Nadar again assigned his mortgaged right in favour of the 2nd defendant in the suit. THE 2nd defendant released one half of the mortgaged right which he got under the mortgage, as stated above, in favour of one Devasahayam Nadar on 9.6.1971, marked as Ex.A6. So the 2nd defendant has got subsisting mortgage right only in respect of the right in plaint 'B' schedule property, i.e., in item No.2 of 'A' schedule property. THE 2nd defendant is none other than the husband of the 1st defendant. Item No.3 of 'A' schedule property was also mortgaged under Ex.A1 in favour of 1st defendant.

(3.) BOTH the courts below concurrently found that Ex.A1 is renewal of Ex.A2 and so the suit on the basis of Ex.A1 to redeem the mortgage is sustainable. Exs.A1 and A7 were executed and registered on the same date, and the scribe was also one and the same person, and the attestors also the same persons. In another suit in O.S.No.20 of 198l,the plaint was marked as Ex.A5, and the written statement as Ex.B13. While defending the said suit, the appellants admitted the execution of Ex.A7. But, as D.W.2 in the present case, he denied the said fact. The Courts below found that since the scribe and attestors are not alive, the plaintiff could not examine them. Appreciating the evidence of D.W.1, the 2nd defendant, the courts below found that he has come forward with the plea that he does not know about Ex.A1 and he has not deposed that he had been enjoying the property only on the basis of Ex.A2. The courts below also found that for the notice issued by the plaintiff for the purpose of redeeming the mortgage, the defendants did not give any reply. On the basis of these reasonings, the courts below concurrently held that Ex.A1 is renewal of Ex.A2,and the case of the appellants that they are in possession of the property as mortgagees only under Ex.A2 and not under Ex.A1 has to be rejected.