VARADAPPA NAICKER Vs. APPAVU ALIAS RAMASWAMI GAUNDER

JUDGEMENT

(1.) THE defendant is the appellant. The suit is for redemption, declaration and possession of the suit properties, with past and future mesne profits. The plaintiff's case is as follows: The suit properties, among others, belonged to one R. Sengoda gounder, who died on 30-9-1932, leaving behind him his only son Nattarayan and his junior wife Pappayyee alias Priya Kaliammal. The said Nattarayan is the son of the said junior wife. Sengoda Gounder and his minor son usufructuarily mortgaged items 1 and 2 of the plaint schedule for Rs. 700 and Rs. 600 respectively on 21-91932 (Exs. A-1 and A-2 ). After the death of Sengoda Gounder, his minor son also died on 16-5-1934. Thereafter, Pappayyee became entitled to the properties. The plaintiff was the only nearest reversioner to the estate of the deceased minor nattarayan. On 7-11-1944. Pappayee sold items 3 and 4 of the plaint schedule to the defendant under two sale deeds. Exs. A-3 and A-4. The plaintiff as reversioner filed O. S. 49 of 1945, Sub-Court, Coimbatore for a declaration that the said sale deeds are not valid beyond the lifetime of Pappayee, and that they are not binding on him. He obtained a decree declaring that the sale deeds are not valid beyond the lifetime of Pappayee. The said decree was confirmed by the High Court in A. S. 512 of 1946. Pappyee died on 23-9-1965. The present suit is filed by the plaintiff, claiming to be the nearest reversioner of the estate of late minor Nattarayan. Subsequent to the filing of the suit, the plaintiff on 24-11-1967, strengthened his title by obtaining a settlement deed from Pavayee, the senior wife of Sengoda gounder. The usufructury mortgage under Exs. A-1 and A-2 assigned his mortgage rights on 16-5-1941 to one Venkitammal and the said assignee in her turn assigned the mortgage to the defendant on 10-2-1943 and the defendant is in possession and enjoyment of the properties. The present suit for redemption, declaration of title and possession is filed. The case of the plaintiff is that under the provisions of Madras Act IV of 1938, the two mortgages are liable to be scaled down and the entire principal having been wiped out after the expiry of 30 years, the plaintiff is entitled to ask for the relief of declaration and possession of items 1 and 2; and items 2 and 3 of the plaint schedule by virtue of the decree in O. S. 49 of 1945 and that on and from the date of death of Pappayee, the defendant is in wrongful possession of the properties. The plaintiff has filed the present suit claiming the relief's mentioned above.

(2.) THE decree to the suit is that the plaintiff has no right to sue as Section 8 of the hindu Succession Act. 1956, will apply even when a male to whom succession is traceable dies before the Act and that Pavayee the senior wife of Sengoda gounder takes precedence over the plaintiff in the matter of succession. The further contention put forward is that the estate of Pappayee, which she inherited as a mother's estate, became enlarged under Section 14 of the Hindu Succession act into an absolute estate and consequently the plaintiff is not entitled to maintain the suit. The defendant raised a further contention that the suit as framed is not maintainable in view of the settlement deed executed by Pavayee, that he had effected improvements on the properties and without payment of the mortgage amount and the cost of improvements effected, the suit for redemption is not maintainable.

(3.) THE trial Court held that the plaintiff is entitled to the suit properties that he s entitled to redeem the mortgages Exs. A-1and A-2 without payment of the mortgage amount that the defendant is not entitled to the cost of improvements and that the suit is not barred by time and the plaintiff is entitled to past profits as claimed by him.