JAFFERKHAN ALIAS BABA Vs. SALIMA BI

JUDGEMENT

(1.) THE mortgagees/defendants have filed this appeal against the order of remand.

(2.) THE plaint case is hereunder : THE grandmother of the first plaintiff one Kulsam Bi created an usufructuary mortgage in favour of her daughter Kathun Bi in the year 1941. As per the terms of the deed, the mortgagee would be in possession of the properties and enjoy the usufructs in lieu of interest; the period stipulated for repayment of the debt was four years from 10. 8. 1941; it was open to the mortgagor to repay the amount earlier; upon such repayment, the mortgagee was bound to give back possession of the property; and if after the period of four years, the mortgagee demanded the amount, the mortgagor was bound to pay the principal and get back the properties. THE mortgagor died and some of her legal heirs filed the suit for a declaration that plaintiffs 2 to 13 and defendants 3 to 6 are the owners of the suit property, for recovery of possession from defendants 1 and 2 and for mesne profits. THEre were other heirs of the mortgagor who did not co-operate with the plaintiffs and therefore, they were arrayed as defendants. THE suit was filed in the year 1979. Paragraph 7 of the plaint deals with the question of limitation. THE plaintiffs took protection under the Tamil Nadu Debt Relief Act 38 of 1972, by which any mortgage debt subsisting on that date would stand wholly discharged with effect from 15. 12. 1972 and since the mortgagors would have 30 years under Article 61 of the Limitation Act, 1963 from the date of discharge, the suit filed in the year 1979 was in time.

(3.) LET us now take up for consideration the issue involved.