ELUMALAI DIED Vs. RAMASAMY NAIDU DIED

JUDGEMENT

(1.) The above Second Appeals arise out of a common judgment of the learned Subordinate Judge, Kancheepuram and the decrees passed on 30-6-1981 in A.S. Nos. 117 and 132 of 1976. S.A. No. 343 of 1983 has been filed against the judgment and decree in A.S. No. 117 of 1976 on the file of the learned Subordinate Judge, Kancheepuram and S.A. No. 344 of 1983 has been filed against the judgment and decree in A.S. No. 132 of 1976.

(2.) One Govindammal, widow of late Kanniappa Reddy and V. Elumalai, son of Vajravelu filed O.S. No. 404 of 1973 on the file of the District Munsif's Court, Thiruthani, for redemption of the suit properties from the registered simple mortgage deed dated 1-10-1923 executed for Rs. 600/- on the ground that the debt must be deemed to have been duly discharged and to hand over the mortgage deed and cancel the same or in the alternative to determine the amount, if any due from the plaintiffs for granting redemption of the mortgage and to direct the defendants to deliver possession of the hypotheca to the plaintiffs. The case of the plaintiffs in the Courts below was that the suit properties originally belonged to the husband of the first plaintiff, T. Kanniappa Reddy, that he had executed a simple mortgage on 1-10-1923 in favour of Duraisami Reddy, the deceased-husband of the 7th defendant and the father of the 8th defendant for Rs. 600/- in respect of the suit properties, that the said Kanniappa Reddy had put Duraisami Reddy in possession to enjoy the lands in lieu of interest payable under the said mortgage debt, that the mortgagee died, on 13-8-1967 without making any demand for payment and the mortgagor also died in 1946 leaving his widow, the first plaintiff to succeed to his estate, that since the mortgagee has been in possession of the properties for more than 30 years, under Tamil Nadu Act IV of 1938 the debt stood wiped out, that the mortgagee appears to have transferred item No.3, of the suit properties in favour of the 6th defendant and item Nos. 5 and 6 in favour of Thangavella Kuppi Reddy, the deceased-father of the 4th defendant and the husband of the 5th defendant, that these transfers are invalid and the transferees cannot derive any interest or right, that defendants 7 and 8 who are the legal heirs of the deceased-Duraisamy Reddy are in possession of other items and that the defendants are liable to deliver possession of the properties to the first plaintiff and pay mesne profits. The first plaintiff has executed settlement deeds dated 29-4-1974, 30-4-1974 and 10-10-1974 in respect of the suit properties in favour of the second plaintiff. Since both the plaintiffs were ready and willing to redeem the mortgage, the suit came to be filed.

(3.) Defendants 1 to 3 and 5 have stated that the first plaintiff succeeded to the estate of Kanniappa Reddy, that since it was alleged that the debt was wiped out by 1-10-1953 itself and the relationship of mortgagor and mortgagee has thereby ceased, the possession of the mortgagee and his successor-in-interest from 1-10-1953 became adverse to the mortgagor, that the first plaintiff had sold suit items 4 and 5 on 24-11-1952 to the father of defendants 1 to 3 and 5, Kuppi Reddi and after the same, the plaintiffs cannot maintain the present suit in respect of the said items and that defendants 1 to 3 and 5 and their predecessor-in-interest have enjoyed the said items for more than the statutory period and perfected title by adverse possession also. So far as the 6th item is concerned, it is said to be the ancestral property of the father of defendants 1 to 3 and 5 and he got the same for his share in a partition effected 40 or 50 years ago and Kanniappa Reddy had no right to 6th item and the mortgagee was also not in possession of the same. According to these defendants, since the mortgage was not subsisting, the question of redemption does not arise and the plaintiffs must be held to have lost their rights in the suit properties, if any and the suit was also barred by limitation.