SWAMINATHA UDAYAR Vs. MOTTAYA PADAYACHI

JUDGEMENT

(1.) THE relevant facts in this miscellaneous appeal against an order of remand lie within a narrow compass. One Subramania was the original owner of the property in dispute for the recovery of which the suit out of which this appeal arises has been filed. He had usufructuarily mortgaged the property to one Marudamuthu padayachi on 4-12-1893 for Rs. 40. The plaintiff claims title from the heirs of subramania, he having purchased the suit property from them by a registered sale deed dated 25-2-1948. These heirs claimed that the usufructuary mortgage had become extinguished by reason of the provisions of Madras Act IV of 1938 and that consequently they were entitled to recover possession of the property, and they transferred their title in the property to the plaintiff. On the other hand the case of the contesting defendants who claim under the usufructuary mortgagee Marudamuthu Was twofold. First they pleaded that the property sold to the plaintiff under the deed of sale dated 25-2-1948 was not the property mortgaged to them and of which they were in possession secondly they contended that Subramania had by an unregistered deed dated 18-8-1900 sold the property to Marudamuthu, the consideration being discharge of the usufructuary mortgage, viz. Rs. 40 and an extra sum of Rs. 10 paid at the time of the sale. On this ground they pleaded that the title of subramania got extinguished both by reason of the sale as well as by marudamuthu and those claiming under him having adversely enjoyed the property from 1900, the date of the sale upto the date of the suit.

(2.) THE learned District Munsif, who tried the suit held that the property purchased by the plaintiff under the deed of 1948, under which he claim, ed, did not comprise the property mortgaged which was set out in the schedule to the plaint. He also held that the unregistered deed dated 18-8-1900 was Inadmissible in evidence under Sections 17 and 49 of the Indian Registration Act and refused to admit the document in evidence for proving either the sale, or the discharge of the mortgage or the change in the character of Marudamuthu's possession by reason of that transaction. He accordingly dismissed the suit.

(3.) THE plaintiff took the matter in appeal and this came on for hearing before the learned Subordinate Judge of Tiruchirapalli. The appellate Judge held that the property purchased by the plaintiff was identical with that which was covered by the usufructuary mortgage by Subramania. He however held that the unregistered deed of sale of 1900 was admissible in evidence to prove the discharge of the mortgage on the particular date. The learned Subordinate Judge went on to add: