NATARAJA DEEKSHIDAR Vs. AIYATHURAI PADAYACHI

JUDGEMENT

(1.) PLAINTIFF is the appeal is the appellant. The suit was for redemption of an usufructuary mortgage dated 29-8-1959 executed by one Kaliaperumal padayachi in favour of the first defendant, on the allegation that the first defendant has been in enjoyment of the suit property as usufructuary mortgagee and that on 14-7-1960 the plaintiff entered into an oral agreement with Kaliaperumal Padayachi for purchase of the suit property for Rs. 2750. In accordance with the said agreement, Kaliaperumal Padayachi received Rs. 700 from the plaintiff in discharge of the bogiam deed executed by Kaliaperumal padayachi's daughter Chinapillai, (4th defendant) in favour of one Pakkirisami padayachi and for the discharge of a pronote debt due by Chinnapillai to the same Pakkirisami Padayachi. It was the further case of the plaintiff that kaliaperumal Padayachi received on several occasions for his needs amount to the tune of Rs. 150. Later on, on 11-8-1960 Kaliaperumal executed the sale deed in favour of the plaintiff for Rs. 2,750, under which he directed the suit bogiam debt to be discharged by the plaintiff. In spite of repeated demands, the first defendant did not receive the bogiam amount and give discharge to the document. Hence, the plaintiff sent Rs. 600 by money order to the first defendant and informed the same also by notice dated 7-5-1964. The first defendant evaded receipt of the same. Hence, the money order as well as the notice was returned to the sender. Since under the bogium deed the principal has to be paid after a period of three years in Chitrai Kalavathi, the plaintiff tendered the amount by money order on 7-5-1964. Kaliaperumal Padayachi died pending suit. Defendants 2 to 5 were impleaded as parties to the suit as the first defendant contended that the suit as framed was bad without impleading Kaliaperumal Padayachi. On these pleadings, the plaintiff prayed for the above reliefs.

(2.) IT was the case of the first defendant that he obtained the sale of the suit property from Kaliaperumal on 24-9-1960 for Rs. 2,500 and by that the suit usufructuary mortgage was discharged. According to the first defendant, the sale in favour of the plaintiff was false and was learnt to be a forgery. It was contended that the plaintiff after coming to know the presentation of the sale deed by the first defendant for compulsory registration, created the sale deed on old stamp papers as if it had come into being on 11-8-1960. The agreement alleged to have been made on 14-7-1960 by Kaliaperumal with the plaintiff was also denied. The first defendant also denied the recitals of consideration made in the plaintiff's sale deed as false. After sending three notices for compulsory registration proceedings, the Sub-Registrar refused registration on 19-12-1960. as the executant was not present. Thereupon the first defendant filed appeal in a. P. 28 of 1960 before the District Registrar, Chidambaram and as per order dated 2-3-1961, the sale deed was registered on 10-3-1961. With these contentions, the first defendant prayed for the dismissal of the suit.

(3.) ALL the other defendants supported the claim of the first defendant. The trial court, by judgment dated 27-12-1967, decreed the suit against the first defendant for redemption with costs with a direction that the plaintiff will be entitled to mesne profits from the first defendant from the date of his notice of the deposit of the mortgage amount into court till delivery of possession of the suit property.