SAPPANI MOHAMMED LABBAI Vs. ABDULLA SYED

JUDGEMENT

(1.) DEFENDANT in O. S. No. 142 of 1977 on the file of Sub Court, tirunelveli is the appellant. Plaintiff is the respondent. The suit was filed for recovery of a sum of Rs. 13,600 based on usufructuary mortgage and for arrears of rent.

(2.) IN the plaint, it is stated in para 3 that defendant had borrowed a sum of Rs. 10,000 and executed an usufructuary mortgage in favour of the plaintiff. Against column relating to rate of interest, it is stated mortgagee to be in possession in lieu of interest. IN para 4, it is stated that defendant took the schedule lands on lease from the plaintiff agreeing to pay a monthly rent of Rs. 600 per half year. Thereafter, it is stated in the plaint as follows: Taking advantage of the absence of the plaintiff from INdia, defendant did not pay any rent, and on return when plaintiff made the demand, defendant sent a notice on 4. 5. 1977 stating that he had made certain payments to the plaintiff, and those payments should be adjusted towards the principal amount due, but no such payment was made. Plaintiff sent a reply on 20. 5. 1977 denying the untrue claims of the defendant. As defendant is bound to pay the entire principal amount and the rent from the date of mortgage, plaintiff restricts the claim to rent for three years prior to the suit. The period of redemption had already expired. As defendant is not entitled to the benefits of Debt relief Acts, he had sought for a decree to be passed directing defendant to pay a sum of Rs. 13,600 with future interest, and failing payment within the time fixed by the Court, to order sale of the schedule property through Court, and to pay the decree amount from out of the sale proceeds.

(3.) THE Primordial aspect to be considered is, whether the mortgage executed by defendant was an usufructuary mortgage or an anamolous mortgage" THE relevant portion in Exhibit A-1 reads as follows: In exhibit A. l at the top, it is captioned as Again at the end of the first paragraph, it is stated as follows: