JANAKIAMMAL Vs. RATHINAM ASARI AND ORS.

JUDGEMENT

(1.) THE third defendant is the appellant. O.S. No. 229 of 1967, out of which this second appeal arises, is a suit for redemption of a usufructuary mortgage dated 9th March, 1955, executed by one Santhanathammal in favour of the fourth defendant in the suit. The plaintiffs are the legal representatives of the mortgagor. The fourth defendant assigned his rights under the mortgage in favour of one Mahalingam, the husband of the first defendant. The second defendant in the suit is the power of attorney agent of the said Mahalingam. Subsequently by a deed, dated 23rd January, 1967, registered on 18th February, 1967, the first defendant and the second defendant, as the power of attorney agent of the first defendant's husband, assigned the mortgage rights to the third defendant. In the meanwhile, on 7th February, 1967, the plaintiffs herein filed O.P. No. 28 of 1967, on the file of the Subordinate Judge's Court, Madurai, under Section 83 of the Transfer of Property Act and deposited a sum of Rs. 7,000 on 16th February, 1967 to the credit of the said original petition. In that petition, the first, second and fourth defendants alone were made parties and the third defendant was not made a party. The first and second defendants refused to receive the mortgage money and filed a counter stating that they had assigned their right to the third defendant and that without impleading her as a party in that petition, no orders could be passed in that petition. Neither the plaintiffs impleaded the third defendant in the original petition, nor the third defendant got herself impleaded and therefore that petition was dismissed. Thereafter, the plaintiffs filed the present suit for redemption.

(2.) THERE was no dispute that the plaintiffs were entitled to redeem. But the defendants contested the suit in regard to the costs of the suit, the mesne profits payable by them and in regard to a sum of Rs. 302.23, which they claimed as being due to the third defendant in addition to the amount of Rs. 7,000 deposited. In regard to the costs, the third defendant contended that, since there was no tender made to her, though the suit was filed subsequent to the assignment, she was entitled to the costs of the suit. So far as mesne profits were concerned, it was the case of the third defendant that, since the amount of Rs. 7,000 in deposit did not represent the full amount due under the mortgage, she was not liable to pay mesne profits. In any case, her liability to mesne profits could not be extended prior to the date of the filing of the suit.

(3.) BOTH the Courts below held that the sum of Rs. 90 and Rs. 70.23 represented independent loan transactions and that therefore the third defendant was not entitled to claim the same in this suit. The lower appellate Court had also held that the amount due under the mortgage was only Rs. 7,000 and since that had been deposited on 16th February, 1967, itself, the plaintiffs were entitled to mesne profits as and from that date.