MUTHU ALIAS MUTHUPERUMAL SERVAI Vs. CHINNA PONNU

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment in A. S. No. 67 of 2001 on the file of the Principal Subordinate Judge, Madurai, which was preferred against the judgment in O. S. No. 586 of 1991 on the file of the District Munsif, Madurai Taluk. The plaintiff in O. S. No. 586 of 1991 has filed the suit for redemption of mortgage and recovery of possession and for mesne profits.

(2.) ACCORDING to the plaintiffs, the suit property was allotted to the share of the first plaintiff in the partition held between herself and her brothers including the defendant, who is her step-brother. The first plaintiff was doing personal cultivation in the suit property. She approached the defendant for a loan of Rs. 10,000/- to meet the agricultural expenses. The first plaintiff executed a registered simple mortgage deed on 5. 8. 1987 for herself and on behalf of minor plaintiffs 2 to 5, for Rs. 10,000/- in favour of the defendant. The agreed rate of interest is 12% p. a. The redemption period is 3 years. After the transaction, she felt on the same day that it is difficult for her to pay interest every year and hence, requested the defendant to take possession, cultivate the same and to appropriate the produce realized in lieu of the interest payable to the mortgage amount. There was an agreement entered into between the first plaintiff and the defendant on 5. 8. 1987. The defendant is a permissive occupier and he is entitled to be in possession till the expiry of the period of redemption, the 1st plaintiff offered Rs. 10,000/- in cash and requested the defendant to suffer redemption. The defendant with intent to enrich himself refused to receive the amount and sent a false notice. The 1st plaintiff received the same and suitably replied on 12. 8. 1991. Now, the defendants 2 to 5 are majors. In the notice the defendant would mention that he is in possession of the suit property even prior to 5. 8. 1987. The plaintiff has deposited Rs. 10,000/- towards mortgage money. Hence, the suit for redemption of mortgage dated 5. 8. 1987 and for recovery of possession.

(3.) IN the written statement the defendant would contend that the plaintiff had secured the property in the family partition. The defendant became tenant of the property under the 1st plaintiff since the date of partition. As per the lease agreement the 1st plaintiff agreed to receive 1/3rd of produce as rent. Since the plaintiff happens to be the sister of the defendant, they have not insisted for any written agreement or any receipt. The 1st plaintiff has borrowed a sum of Rs. 10,000/- from the defendant on 5. 8. 1987 and agreed to adjust the rent towards interest. Thereafter, the 1st plaintiff had borrowed another sum of Rs. 10,000/- from the defendant in the presence of two witnesses and requested the defendant to adjust the rent towards interest. The defendant has made improvements at the cost of Rs. 10,000/- by leveling the land and made fit for cultivation. The 1st plaintiff subsequently has taken steps to dispose of the property. The defendant has sent a lawyer notice dated 20. 5. 1991 the defendant is not doing any personal cultivation in the suit property. The plaintiffs cannot take advantage of the mortgage deed and the agreement regarding the interest and thereby denying the tenancy right of the defendant. The defendant has filed T. R. No. 6 of 91 before the Record Officer, Vadipatti to record his name as cultivating tenant which was allowed and the defendants name has been registered as cultivating tenants in the records of tenancy rights. The 1st plaintiff is liable to pay a sum of Rs. 20,000/- as loan amount and Rs. 10,000/- towards improvement made in the suit property. All the improvements have been made only with the knowledge and permission of the 1st plaintiff. The 1st plaintiff is not entitled to the relief of redemption of mortgage unless the entire amount of Rs. 20,000/- is paid to him. The plaintiff is not entitled to recovery of possession as the defendant is in possession of the suit property as cultivating tenant. The 1st plaintiff is not entitled to mesne profits as she can claim 1/3rd waram after the redemption of mortgage as the defendant is in possession of the suit property as cultivating tenant. The suit as framed is not maintainable and the same is liable to be dismissed.