N.T. SUYAMPRAKASAM Vs. K. GANGADHARAN

JUDGEMENT

(1.) The appellants/defendants have filed this Second Appeal as against the judgment and decree dated 30.04.2001 made in A.S. No. 17/2000, on the file of the learned Additional District Judge, Nagercoil, reversing the judgment and decree, dated 20.12.1999, made in O.S. No. 202/1999, on the file of the learned Principal Subordinate Judge, Nagercoil. For the sake of convenience, the parties referred as in the suit is referred in the Second Appeal. The respondent/plaintiff had filed a suit for preliminary decree for redemption of mortgage and for future mesne profits at the rate of Rs. 10800/- per month.

(2.) Briefly the case of the respondent/plaintiff is that the suit property i.e., shop building, belonged to the plaintiff and the defendants 1 to 3 were lessees under the respondent/plaintiff from 02.08.1989 for three years and the rent was Rs. 400/- per month and advance (Marayam) of Rs. 30,000/- was also paid by the defendants. It is also stated in the plaint that when the lease was near termination by efflux of time, the plaintiff demanded vacant possession and defendants and their father agreed to vacate the property on or before 06.07.1992 with an undertaking on 14.06.1992, in which, the defendants 2 and 3 signed in the above said document for themselves and also as agent for first defendant since he was not available, but the defendants did not vacate the property inspite of the above said undertaking and in the meantime, the rent was also increased from Rs. 400/- to Rs. 700/-. It is also averred in the plaint that in the year 1996 the plaintiff issued a notice on 18.03.1996 to vacate the suit property, as per the undertaking but the defendants issued a reply raising untenable contentions. It was also stated in the plaint that, as per settlement arrived at in April 1996, the defendants agreed to vacate the scheduled mentioned property within five months i.e., August 1996 and till the time of settlement, the receipt of rent was kept in abeyance and after settlement, the plaintiff received the rent and issued receipts.

(3.) It is further stated in the plaint that the defendants did not honour the agreement and the defendants and their lather approached and requested the plaintiff to give the property for one more year on mortgage and also requested the plaintiff to execute a mortgage for Rs. 30,000/-, which had been already paid as Marayam towards the lease and the plaintiff agreed the same but demanded Rs. 5000/- more for the mortgage and the defendants also agreed to pay Rs. 5000/-, as additional amount, on 32.09.1996. The leasehold right was surrendered and executed usufructuary mortgage (othi) and the defendants are in possession of the property as mortgagees but with an ulterior motive, the defendants sent the rent by way of Money Order to the plaintiff's wife and she refused to receive the same and therefore, the plaintiff issued notice to the defendants and the defendants sent reply notice refuting the mortgage and questioning the validity of the mortgage as sham documents. Since the one year mortgage period ends on 01.09.1997, issued a notice for redemption the mortgage dated 02.09.1997, but the defendants had filed a frivolous RCOP. No. 49/1996 alleging that they are tenants seeking the relief of depositing the rent into the Court. According to the plaintiff, the defendants are in possession of the plaint scheduled building under mortgage and the plaintiff was ready to deposit the mortgage money of Rs. 35,000/- into the Court and therefore, the plaintiff filed this suit for preliminary decree for redemption of mortgage.