GNANAMMAL Vs. ELAYAPERUMAL NADAR AND ORS.

JUDGEMENT

(1.) THE question for debate in the second appeal preferred by the plaintiff is whether the finding of the learned District Munsif, Srivaikuntam in O.S. No. 441 of 1968 which was confirmed by the Subordinate Judge, Tuticorin in A.S. No. 7 of 1971, that item (1) of the suit property did not belong to the predecessor -in -title of the appellant and that item (2) of the suit property was not liable for redemption and recovery of possession on the ground of limitation, is a correct one. In her suit, the appellant sought redemption and recovery of possession of two items of land, survey Nos. 746/2 and 746/1, of 83 cents and 44 cents respectively. Her case was that both the items were originally owned by one Namasivaya Mudaliar who sold them under Exhibit A -3 on 23rd July, 1862 to one Paranjothi Nadar. Under the original of Exhibit A -4 dated 13th May, 1871, Paranjothi Nadar sold the two items to one Yesuvadial. On Yesuvadial's death, her daughter Muthayee succeeded to her property. When Muthayee too died, her husband, Augustus Masilamani Nadar, succeeded to the property. He subsequently bequeathed the property by means of a Will to his foster -daughter, the appellant herein, and that is how the appellant claims title to the suit property. According to the appellant, her foster -mother Muthayee Ammal, had executed a usufructuary mortgage deed on 29th March, 1899 under the original Exhibit A -9 in favour of one Solomon Nadar. It was the redemption of this othi that was sought for by the appellant in her suit. Solomon Nadar, by Exhibit A -10 dated 15th January, 1901 sub -othied the suit property in favour of one Yesuvadia Nadar and two others. Later, Solomon Nadar assigned his othi rights to one Abraham Nadar under the original of Exhibit A -11 on 7th August, 1908. The assignee, Abraham Nadar retained item (2) and assigned the othi in respect of item (1) alone to one Koilpillai under the original of Exhibit A -12 on 8th May, 1913. It was the appellant's case that respondents 2 and 3, the daughters -in -law of Solomon Nadar, and the first respondent, a stranger, were in possession of the suit items only as othidars and were therefore bound to be redeemed and deliver possession. To bring the suit within time, the appellant took the stand that the recitals contained in Exhibits A -11 and A -12 constituted acknowledgments of the subsistence of the othi and would, therefore, attract the operation of Section 18 of the Limitation Act, 1963 (corresponding to Section 19 of the old Act of 1908). The further case of the appellant was that, by reason of the provisions of Madras Act IV of 1938 as amended by Act XXIV of 1950, the entire mortgage debt was wiped out and as such, no amount was due to the mortgagees.

(2.) THE principal defence raised in the suit by the respondents was that the suit was barred by limitation as the recitals contained in Exhibits A -11 and A -12 did not amount to acknowledgments of liability. The other defence in the case was that the suit items do not belong to the predecessors -in -title of the appellant and, on the other hand, were owned by the predecessors -in -title of the respondents. With regard to item (1) the first respondent contended that it was originally owned by one Devasahayam Nadar. Eventually, one of the sons of Devasahayam Nadar, by name Koilpillai Nadar, acquired the sole right over that item and he usufructuary mortgaged the property to one Esther Ammal. Subsequently, he sold the property to Esther Ammal herself under Exhibit B -2 and Esther Ammal, in turn, had sold the property to him under Exhibit B -1 and therefore, he was in possession of suit item (1) in his own right and not as an othidar. The second respondent as well as her vendee, pendente lite the fourth respondent, on the one hand and the third respondent on the other laid rival claims to item (2) of the suit property, but it is not necessary to make reference to the details of their claims as it has been found by both the Courts below that they have not established their title to the said item of property.

(3.) MR . Padmanabhan, learned Counsel for the appellant, made a vain bid to contend that the finding of the Courts below that the appellant had no title over item (1) of the suit property was erroneous. But, I am afraid, there is very little material in the case to lend support to the appellant's claim that Muthayee, her predecessor -in -interest had title to the first item of the suit property. Excepting the fact that item (1) had also been included by Muthayee in the othi created by her under Exhibit A -9, there is no other document to show how she or her predecessors -in -title acquired rights to that item of property. The prior documents of title, Exhibits A -3 and A -4, do not contain any clear reference to item (1). The survey number as well as the patta number for that land are not adverted to in Exhibits A -3 and A -4. On the other hand, we find that the documents produced by the first respondent lend support to his contention that item (1) was originally owned by his predecessor -in -title, viz., Devasahayam Nadar. Exhibits B -21 and B -22, which are extracts from the settlement and re -settlement registers, unmistakably show that Devasahayam Nadar was recognised as pattadar of item (1) of the suit property. If really Paranjothi Nadar, from whom Muthayee's mother, Yesuvadial had purchased the properties under Exhibit A -4, was the owner of item (2) as well as item (1), he would have been shown as the pattadar, in the settlement and re -settlement registers, of both the items but, significantly enough, Paranjothi, ' Nadar is shown in the settlement and re -settlement registers as the pattadar of item (2) alone and not of item (1). As already stated, it is Devasahayam Nadar who is shown, in the registers, as the pattadar of item (1). Besides the entries in the settlement registers, we have also the prior sale deeds, Exhibits A -13 and, B -1 as well as the mortgage deed, Exhibit B. -3; which lend support to the claim of the first respondent that one of the sons of Devasahayam Nadar by name Koilpillai Nadar acquired sole rights over item (1) by reason of purchase from his, brothers and later on he mortgaged the property to Esther Ammal and eventually, sold his equity of redemption as well. The first respondent had produced pattas in his name for the said, item and even in the patta, Exhibit A -7, filed by the appellant herself, it is found that Devasahayam Nadar is shown as the pattadar for item (1). Thus from Exhibit A -7 itself, it is seen that, as early as fasli 1302, the first respondent's predecessor -in -title had been shown to be the pattadar in possession, of the first item of the suit property. In such circumstances, it is futile for the appellant to contend, merely by placing reliance on the recitals contained Exhibit A -9, that Muthayee Ammali was the owner of both the items of the suit property and therefore, she was entitled to sue for redemption and possession of not only suit item (2), but also -suit item (1). The dismissal of the suit by the District Munsif and the Subordinate Judge with regard to item (1) of the suit property must, therefore, be upheld.