THIAGASAMBANDHAM PILIAL Vs. SAVITHIRI AMMAL

JUDGEMENT

(1.) At the request of the counsel, both these appeals were heard together.

(2.) S.A. No. 2303 of 1983: The defendants are the appellants. The plaintiffs case is as follows: The property is a house situate in Vanakkara St., Mannargudi Town, and it is the ancestral property of the 1st plaintiff and his elder brother Thangavelu. They mortgaged the said property usufructuarily in favour of one K.R. Manian, under the registered othi dated 4.2.1959, and received a loan of Rs. 1,750.00 and in lieu of interest the said Manian was put in possession thereof. The period fixed for redemption was to expire on 4.2.1968. The said K.N. Manian whom as in possession as a mortgagee, had assigned the said mortgage to the first defendant under a registered othi on 29.7.1960. The first defendant in collusion with the first plaintiff's brother Thangavelu, got up a document styled as a sale deed in the name of the 2nd defendant as though there was a petition of the suit property between the first plaintiff and his brother Thangavelu and as though the said Thangavelu was allotted the portion on the road side. The said mortgage and the recitals in the sale deed are absolutely false. The first plaintiffs, therefore, issued a notice to both the defendants on 17.6.1974, offering to pay his half share of othi amount. The defendants sent a reply on 3.7.1974. They further claimed a sum of Rs. 8,000 for having effected improvements in the suit house. As per Tamil Nadu Act 88 of 1972, the mortgagor is entitled to a proportionate reduction in the mortgage amount. Therefore, for the further remaining period, the amount payable to the mortgagee on the mortgage is only Rs. 773 which is payable in equal morties. The 1st plaintiff is entitled to the benefits of the Tamil Nadu Debt Relief Act 31 of 1976. As Thangavelu was not willing to co-operate with the 1st plaintiff, it has become necessary for the plaintiff as a co-mortgagor to redeem the entire mortgage. The first plaintiff deposited Rs. 773.00 into court and filed O.P. No. 25 of 1975 for redemption. The defendants who appeared through their counsel refused to receive the said amount and to delivery back the suit property. Hence, the first plaintiff was referred to a suit and thus the suit is filed.

(3.) The defendants plead thus : The house and the premises originally belonged to the 1st plaintiff and his brother Thangavelu Naicker. It is true that both of them jointly executed a registered othi deed on 4.2.1959 in favour of one Manian for Rs. 1,750.00. It is also true that while the othidar was in possession, he executed a registered assignment in favour of the 1st defendant on 29.7.1960. The first defendant, as the assignee of the othi rights, was enjoying the same. While he was in possession, an oral partition was entered into between the 1st plaintiff and his brother Thangavelu Naicker, whereby the property was divided into two equal portions and subsequently, the 1st plaintiff's brother Thangavelu Naicker and his sons conveyed the portion obtained by them in the said partition in favour of the second defendant by a registered sale deed dated 17.8.1964 for Rs. 2,000. Since then the second defendant has been in possession of half of the suit property as absolute owner. On account of subsequent misunderstanding between the first plaintiff and his brother Thangavelu, the suit has been filed falsely. The plaintiff and his brother have chosen to suppress the fact that there was a partition, taking advantage of the fact that there was no document available to evidence the partition. The first plaintiff is aware of the conveyance made by his brother in favour of the second defendant, and he also promised to convey half of his share in her favour for the same consideration. The second defendant has effected improvements to the suit property by spending more than Rs. 3,000. The house was formerly in a dilapidated condition and the roofing had caved in and cracks have developed in a number of places and therefore the 2nd defendant was compelled to effect improvements. The second defendant has paid Municipal taxes due for the house and even assuming that the plaintiff is entitled to redeem the property, he is bound under law to pay the value of the improvements as well as the taxes paid by them. The 1st plaintiff, who claims to be the owner of a half share only in the mortgage security, is not entitled to ask for redemption of the entire othi without impleading the other mortgagor viz., his brother Thangavelu Naicker, as a party to the suit. The suit is therefore bad for non-joinder of necessary party. The amount deposited by the plaintiff is also not correct. The suit is not a bona fide one. The 2nd defendant is the bond fide purchaser.