O M JALALI Vs. ANUSUDDIN

JUDGEMENT

(1.) THE first defendant is the appellant. The suit is one for redemption of the usufructuary mortgage deeds, Ex. B-1 dated 29-3-1859 and Ex. B-2 dated 30-31889 for Rs. 100 and Rs. 150 respectively executed by one Ansuddin, the grandfather of the plaintiffs and the second defendant in favour of one Mohammed noohu. The plaintiffs' case is that the suit property measuring one acre and three cents belonged to their grandfather, Ansuddin, that the said Ansuddin had created the said two mortgages over that property, that the period prescribed for redemption under both the documents was one year, that there has been a partition in the family of the mortgagee, Mohhammad Noohu whereunder the suit mortgages had been allotted to one Ahmed Ali Bathumal, that her father and guardian had assigned the usufructuary mortgages to the first defendant under a registered deed of assignment dated 5-6-1911 and that since then, the first defendant as an assigned of the mortgages has been in possession and enjoyment of the suit land. The further case of the plaintiffs is that after the death of the mortgagor, Ansuddin, the equity of redemption had devolved on Mohideen Abdul kader, the father of the plaintiffs and the second defendant and after his death on the plaintiffs and the second defendant and that therefore, they are entitled to redeem the mortgages in question. The plaintiffs also contended that in view of the provisions of S. 9-A of the Madras Agriculturists Relief Act, the mortgage debts stand discharged and therefore, they are entitled to redeem the mortgages without payment of any sum.

(2.) THE first defendant contested the suit. She denied that the suit property originally belonged exclusively to the plaintiffs paternal grandfather, Ansuddin. It is stated that the suit land belonged to Asanachi, the mother of Ansuddin that on her death the first defendant's father as also Ansuddin became entitled to a half share each, and that on her father's death the first defendant became entitled to a half share in the suit property. The first defendant also contended that by virtue of her redeeming the mortgage by getting an assignment from the mortgagee's legal representatives the mortgages as such have become extinguished and that, therefore, the plaintiff's remedy, if any, is to file a suit for possession within a period of 12 years from the date of assignment, that the suit for redemption as framed cannot be maintained, and that in any event, the suit for redemption is barred by time.

(3.) ON these pleadings and on the evidence adduced on either side, the trial court held that the suit property originally belonged to Assanachi, the mother of ansuddin and that, therefore, the plaintiffs and the second defendant on the one hand and the first defendant on the other became entitled to a moiety in the suit properties. It also held that the assignment Ex. B-3 taken by the first defendant will not constitute and acknowledgment of the mortgagor's right to redeem so as to afford a fresh starting point of limitation for redemption, as alleged by the plaintiffs and that the suit for redemption having seen filed more than 60 years after the date of the original mortgages is barred by limitation. In that view, it dismissed the plaintiff's suit.