SALEMA BIBI Vs. SHAIK DOVUD

JUDGEMENT

(1.) This civil miscellaneous second appeal at the instance of the mortgagee is directed against the order passed by the learned district Munsif, Tiruchirapalli, in O. P.No. 65 of 1981, filed by the respondent herein under Ss. 9 and 17 of the Tamil Nadu Debt Relief Act (Act No. 40 of 1979) (hereinafter referred to as the Act) and affirmed by the lower appellate court in C. M. A. No. 32 of 1982, holding that the mortgage debt in favour of the appellant stood discharged by the operation of the provisions of the Act and directing the appellant to return the original usufructuary mortgage deed and to deliver possession of the hypotheca to the respondent, The property in question bearing door No. 103. Mettu Street. Varaganeri, Tiruchirapalli, belonged to Zuleika Bibi, the mother of the respondent herein having been purchased by her on 7-2-1904. She had executed a mortgage in respect of this property in favour of Tiruchi City Cooperative Bank on 30-5-1970. Later. on 13-11-1970. Zuleika Bibi executed a usufructuary mortgage for Rs. 13,000/- in favour of the appellant fixing a period of five years for redemption. One of the items of consideration under the usufructuary mortgage was the discharge of the earlier mortgage dated 30-51970 in favour of Tiruchi City Co-operative Bank. Pursuant to the usufructuary mortgage, possession of the property was also delivered to the appellant 'and the appellant had been realising and enjoying the income from the property in lieu of interest. On 11-11-1979, Zuleika Bibi. executed a deed of settlement in favour of her son. the respondent herein, and directed him to redeem the mortgage in favour of the appellant. The respondent claimed that he was entitled to the benefits of the Act and also the Tamil Nadu Act 13 of 1980 as he was not assessed to any tax and was not otherwise disentitled from claiming the benefits of the Acts and that as the appellant had been in possession of the mortgaged property for more than ten years the entire mortgage was wiped out. On this footing the respondent requested allow redemption of the mortgage and return the also redeliver possession of the hypotheca; but the appellant evaded. Thereupon, on 24-4-1981. the respondent issued a notice to the appellant claiming that as a result of the operation of the provisions of the Act, the usufructuary mortgage in favour of the appellant had become wiped out and that the appellant should deliver possession of the hypotheca to the respondent. To this, the appellant sent a reply on 9-5-1981 stating that the respondent was not entitled to claim the benefits of the Act and that the respondent did not come under any of the exemptions under that Act. Inasmuch as the appellant declined to allow the respondent to redeem the mortgaged property and secure possession, the respondent filed 0. P. No. 65 of 1981, District Munsif's Court, Thiruchirapalli, for a declaration that the usufructuary mortgage dated 1311-1970 stood discharged and wiped out under the provisions of the Act and for directing the appellant to-produce the original usufructuary mortgage with an endorsement of discharge along with other documents of title and also deliver possession of the hypotheca to the respondent.

(2.) That application was resisted by the appellant on the ground that no grounds existed for granting the reliefs prayed for by the respondent and that the application was legally unsustainable. The execution of the mortgage by Zuleika Bibi on 13-111970 on receipt of consideration in a sum of Rs. 13,000/- was admitted. The execution of the settlement deed dated 11-11-1979 in favour of the respondent and his having become thus entitled to redeem the usufructuary mortgage in favour of the appellant was questioned. The appellant disputed the claim of the respondent that he was entitled to the benefits of the Act. The appellant also denied that the respondent was not assessed to tax and was therefore not disentitled to claim the benefits of the Act. The right to redeem the usufructuary mortgage Linder the terms of the settlement deed dated 11111979 executed by Zuleika Bibi in favour of the respondent was also disputed.

(3.) Before the learned District Munsif, on behalf of the respondent Exs. A. 1. to A. 8 were marked and the respondent was examined as P. W. I and his brother- in-law was examined as P. W. 2. while, on behalf of the appellant. Exs. B. I to B. 4 were filed and the husband of the appellant was examined as R. W. 1. On a consideration of the oral as well as the documentary evidence the learned District Munsif found that the respondent was entitled to claim the benefits of the Act, that the deed of settlement dated 11-11-1979 was executed by Zuleika Bibi in favour of the respondent, that under the terms thereof, the respondent had a right to redeem the usufructuary mortgage dated 13-11-1970 in favour of the appellant and that having regard to the possession of the property by the appellant is a usufructuary mortgage for over 10 years. The mortgage debt stood discharged by the operation of the provisions of the Act. On those conclusions, O. P. No. 65 of 1981 filed by the respondent was allowed, Aggrieved by that, the appellant preferred an appeal in C. M. A. No. 32 of 1982 before the District Court, Tiruchirapalli. The lower appellate Court, on a reconsideration of the oral as well as the documentary evidence, concurred with the conclusions of the trial court and dismissed the appeal. It is the correctness of this that is challenged in this second appeal.