MEENAKSHI ACHI Vs. DURAISAMI REDDIAR

JUDGEMENT

(1.) THE above second appeal has been filed by the defendant, who has failed through out, against the judgment and decree in A.S. No.75 of 1982, dated21.10.1982(District Court A.S.No.78of 1982), confirming the judgment and decree of the learned II Additional Munsif, Tiruchy, dated 28.1.1982, in O.S. No.165 of 1981. THE respondent/ plaintiff has filed O.S. No.165 of 1981 for redemption of the mortgage dated 8.8.1974 and for possession of the mortgaged property and for future profits. THE plaintiff appears to have executed a usufructuary mortgage in favour of the defendant on 8.8.1974 for Rs.7,000 in respect of the plaint schedule property; that the plaintiff also has put the defendant in possession of the same in lieu of interest and the document stipulated a period of six years for redemption. THE plaintiff, claiming to be an agriculturist and a debtor under the definition of Tamil Nadu Debt Relief Act 40 of 1979, staked his claim under Sec.9 and for an order that he is entitled to redeem the property after paying to the mortgagee the difference between the principal amount secured by the mortgage and an amount bearing to the principal amount for the same proportion as the period during which the mortgagee has been in possession bears to 10 years. On the basis that the defendant was in continuous possession of the property from 8.8.1974 onwards for a period of 6 years and 6 months, the amount came to be worked out as Rs.2,510 and the plaintiff issued a notice expressing his preparedness to pay the mortgage amount without prejudice to his right and seeking for redemption. Since the defendant did not respond, the plaintiff has filed the suit, on depositing the sum of Rs.2,510 to which alone the defendant is entitled to.

(2.) THE defendant filed a written statement contending that the plaintiff was not entitled to the benefits of either Tamil Nadu Act 13 of 1980 or Tamil Nadu Act 40 of 1979; that the properties as well as the house owned by him go to show that he has properties worth more than Rs.20,000 and therefore, unless he pays the entire othi amount, he is not entitled to redemption. THE defendant also claimed for the recovery of Rs.50 towards electrical charges said to have been paid by the defendant.

(3.) MR.M.N. Muthukumaran learned counsel appearing for the appellant vehemently contended that the courts below committed a grave error of law in merely relying upon the certificates and materials produced by the plaintiff to substantiate his claim that he is entitled to the benefits of the debt relief legislation in question and according to the learned counsel the courts below ought not to have placed reliance upon the same in the absence of positive proof of the contents by examining the very authors of the documents or proceedings relied upon and this having not been done, the suit ought to have been dismissed. Learned counsel invited my attention to the various provisions of the Tamil Nadu Debt Relief Act 40 of 1979 and also invited by attention to the findings of the courts below and contended that they do not reflect the correct position of law. Learned counsel for the respondent adopted the reasons assigned by the courts below in support of the reliefs granted and contended that the concurrent findings of facts recorded by both the courts below are unassailable and do not call for any interference in this second appeal.