SARASWATHI AMMAL Vs. SHANMUGHAVADIVAMMAL

JUDGEMENT

(1.) The 1st defendant is the appellant in this second appeal against the concurrent decree for a sum of Rs. 5,000/- with a charge over the property in question, given by both the Courts below.

(2.) The undisputed facts are : The plaintiff borrowed from defendants 2 to 4 a sum of Rs. 5,000/- and as security for the repayment of the said sum, usufructuarily mortgaged his property under Ex. A1 dated 14-8-1967 in favour of defendants 2 to 4. Subsequently, the plaintiff sold the said property under Ex. A1 dated 28-5-1969 to the Ist defendant for Rs. 8,000/-. Though the sale consideration therefor was Rs. 8,000/-, the plaintiff received from the Ist defendant only Rs. 3,000/- and allowed the Ist defendant to retain the balance of Rs. 5,000/- for redeeming Ex. A1 mortgage. Subsequently, the Ist defendant filed O. S. No. 105 of 1979 on the file of the District Munsif of Tirunelveli for redemption of the said mortgage, claiming that the mortgaged was deemed to have been discharged under Tamil Nadu Act 40 of 1979 even without paying the mortgage amount of Rs. 5000/-. Since the Ist defendant was a "debtor" under the said Act. Apart from the present defendants 2 to 4, the plaintiff herein was also one of the defendants in that suit. The plaintiff herein also claimed in that suit that he was a debtor under the said Act. Subsequently, the plaintiff herein also filed the present suit O.S. No. 605 of 1980 for recovery of the abovesaid sum of Rs. 5,000/- from the Ist defendant on the footing that in view of the said Act 40 of 1979, there was no necessity for him to pay the said sum to defendants 2 to 4 for discharging Ex. A1 mortgage.

(3.) The trial court tried both the suits together. It decreed O.S. No. 105 of 1979 as prayed for, holding that the Ist defendant and the plaintiff herein as debtors under the abovesaid Act. It also decreed the present suit O.S. No. 605 of 1980 for a sum of Rs. 5,000/- with a charge over the property.