SAKUNTALA DIED Vs. V SARANGAPANI NAIDU

JUDGEMENT

(1.) The defendant in O.S. No. 1070 of 1976 on the file of the District Munsif of Tiruchirapalli, was the original appellant in this second appeal. She died pending the second appeal and her legal representatives have been brought on record. The respondent herein is the plaintiff in the suit. The suit was laid for redemption of a usufructuary mortgage, dated 6th July, 1966, and for other ancillary reliefs. The plaintiff was the mortgagor and the defendant was the mortgagee. The plaintiff claimed that he is entitled to the benefits of Tamil Nadu Debt Relief Act XXXVIII of 1972. The defendant denied this plea of the plaintiff. The plaintiff further claimed deduction of amounts towards property tax. This was also denied by the defendant. The defendant claimed that she is entitled to compensation for improvements. On appropriate issues on the pleadings in the case, the first Court came to the conclusion that the plaintiff is entitled to the benefits of Tamil Nadu Act XXXVIII of 1972 the deduction claimed by the plaintiff towards property tax is also tenable and the defendant is not entitled to claim anything towards property tax is also tenable and the defendant is not entitled to claim anything towards (improvements. Holding that the amount deposited by the plaintiff into Court is sufficient to accord the relief of redemption, it granted a preliminary decree as prayed for and relegated the question of future profits to separate proceedings. The defendant appealed, obviously not accepting the findings of the first Court, including the one relating to the entirement of the plaintiffs to the benefits of Tamil Nadu Act XXXVIII of 1972, for scaling down the question (debt). It must be pointed out that the judgment of the first Court was rendered on 17th September, 1977. During the pendency of the appeal before the lower appellate Court, namely, the Subordinate Judge of Thiruchirapalli, Tamil Nadu Dept Relief Act, XL of 1978, came into effect and, of course, the respondent in the appeal before the lower appellate Court, wanted a declaration that the entire debt has been wiped out by virtue of section 8 of Tamil Nadu Act XL of 1978, and that he is entitled to possession of the mortgaged property straightway. Section 8 (5) of Tamil Nadu Act XL of 1978, states that where the mortgagee is in possession of the property mortgaged to him for an aggregate period of ten years or more, the mortgage debt shall be deemed to have been wholly discharged with effect from the expiry of the period of ten years. There is no doubt that factually this principle would come into play and the plaintiff would normally be entitled to that relief.

(2.) The defendant, in the appeal before the lower appellate Court, did not appear to have pressed forth her grievance on the question of compensation for improvements, etc, and had concentrated only to counter-act the new relief claimed by the plaintiff under Tamil Nadu Act XL of 1978, and as a result, (sic) the Court has granted the plaintiff a decree for possession straightway, holding that the debt has been wiped out under Tamil Nadu Act XL of 1978. This second appeal is directed against the judgment and decree of the lower appellate Court.

(3.) At the time of admission of the second appeal, the following substantial question of law has come to be mooted out for consideration: "Whether the lower appellate Court was right in reducing the amount payable for redemption fixed by the trial Court, in the appeal filed by the defendant."