CHELLASIVALINGAM NADAR Vs. ARULDAS AND ORS.

JUDGEMENT

(1.) The Second Appeal has been filed by the plaintiff in the Court of the learned Additional District Munsif, Nager-coil. The plaintiff's father was one Swamikkannu Nadar and the family owned the suit property. Swamikkannu Nadar, died in 1952. During his life time, he was interested in toddy business. The plaintiff, the son of Swamikkannu, was then working in the Excise Department. Swamikkannu committed--default in payment of amounts due to the Government with regard to the toddy contract.

(2.) The father and the son had executed a mortgage in favour of one Narayana Perumal Nadar on 29th February, 1934 with regard to the suit property under Exhibit A-l. This property was sold in auction under the Revenue Recovery Act and Narayana Perumal purchased the entire property of 1 acre and 87 cents in the revenue sale. A certificate under Exhibit B-1, dated 25th November, 1938 was granted to him and thereafter, the property was in the possession of the said Narayana Perumal or his sons or assignees. The plaintiff sought to redeem the mortgage executed on 29th February, 1934 and he was met with the plea that the property having been purchased in the revenue sale by the mortgagee, there was no scope for redeeming the mortgage. The plaintiff, thereafter, filed the suit and in the trial Court there were mainly two points in dispute, namely, (1) whether there was a valid revenue sale which was binding on the plaintiff and (2) whether the suit was barred by time as the defendants had been in possession of the property adversely for more than the statutory period. The learned District Munsif held that in regard to the half share in the property belonging to Swamikkannu, the father of the plaintiff, the mortgage had been extinguished by the mortgagee becoming the owner of the equity of redemption under the revenue sale and that in regard to the other half share in the property belonging to the plaintiff, as the mortgage rights subsisted the suit was not barred by limitation. He held also that there was no question of perfecting title by adverse possession as the mortgage still subsisted in regard to the half share of the property.

(3.) The defendants appealed and in the appellate Court, the following points came up for determination, namely, whether the plaintiff was entitled to redeem one half share of the suit property and whether the suit was barred by time. The decree, in so far as it related to Swamikkannu's share, has become final. The learned Subordinate Judge held that Exhibit B-1, the sale certificate, clearly showed that the sale was conducted as per rules, that it was valid as held by the lower Court and that that finding had become final. In paragraph 14 of his judgment he observed that it was not disputed that the plaintiff and his father were members of a joint family, that the mortgage deed, Exhibit A-1, showed that they were members of a joint family and that the plaintiff could not impeach the revenue sale. On the point regarding limitation, the learned Judge held that the revenue sale took place more than thirty years ago and that subsequently, the record stood in the name of the mortgagee. He thus held that the suit was, barred by limitation.