PALANISWAMI GOUNDER Vs. CHINNASWAMI GOUNDER

JUDGEMENT

(1.) The plaintiff, who succeeded in his suit O.S.72 of 1969 on the file of the District Munsif, Dharopuram, but lost in the respondents' appeal A.S.155 of 1973 on the file of the Subordinate Judge of Erode, is the appellant in this second appeal.

(2.) The appellant brought the said suit for redemption of the mortgage, for recovery of possession and for recovery of mesne profits. The appellant, along with one Muthuswami Gounder, executed Ex. B1 registration copy of which is marked as Ex. A1 dt. 27-7-1924 in favour of Kuppana Gounder. At the time of filing of the suit, Kuppanna Gounder was no more and therefore his legal representatives were the defendants (respondents herein). Accordingly, the appellant, as the mortgagee was in possession for more than 30 years, the mortgage got discharged by virtue of S. 9A of Tamil Nadu Act 4 of 1938, that Muthuswami Gounder passed away, that on his demise, the interest of the said Muthuswami Gounder devolved on the appellant and that, therefore, the appellant is entitled to redeem the mortgage and thereby recover possession and claim mesne profits. Various defenses were raised at the instance of the legal representatives of the mortgagee, who are respondents herein. As Muthuswami Gounder's half share was sold in a Court auction and was purchased by one Nattukottai Chettiar of Palladam and as Muthuswami Gounder left behind Angammal, the suit is bad for non-joinder of the said Nattukottai Chettiar. The further defence is that the appellant is not entitled to claim benefits under Tamil Nadu Act 4 of 1938, and is, therefore, bound to pay the amount due under the mortgage. The further defence is that the suit is barred by limitation. It may be useful at once to point out that both the courts below rejected the defence relating to non-joinder of parties and the appellant's entitlement under S.9A of Tamil Nadu Act 4 of 1938. While the trial Court held that the suit is in time, the first appellate Court held that the suit is barred by limitation. It is thus the first appellate Court came to dismiss the suit. Hence this second appeal.

(3.) The second appeal had a chequered career in that it came to be disposed of once on 13-4-1978, but later the said judgment came to be set aside.