MANNARSAMY NAICKER DIED Vs. NAGAMMAL

JUDGEMENT

(1.) THE plaintiff is the appellant herein, has preferred the present appeal against the judgment and decree made in O.S.No.136 of 1986 dated 28.02.1989, on the file of the learned Subordinate Judge, Srivilliputhur, for recovery of money on a mortgage for a sum of Rs.48,629/- and for a sum of Rs.26,000/- along with at the rate of 6% p.a.

(2.) THE brief facts of the case in the nutshell is as follows: On 16.12.1971, a registered mortgage has been executed by the second defendant on behalf of the defendants in favour of the plaintiff. In the said document, it is mentioned that a sum of Rs.10,000/- was received by the defendants, which is used for the re-purchase of the properties sold in favour of one Narayanasamy Naicker and the said sum has been paid by the plaintiff in the presence of the defendants to Narayanasamy Naicker. THE document also says that another sum of Rs.6,000/- has been received for family necessity and for small loans and a further sum of Rs.10,000/- has to be utilised by the plaintiff for clearing the debts of the defendants from one Alagarsamy Naicker. It is further mentioned in the said document that the plaintiff will have to receive the promissory note from the said Alagarsamy Naicer after payment of Rs.10,000/- . According to the plaintiff, he has paid the said sum of Rs.10,000/- to Alagarsamy Naicker as evidenced by Ex.A7. But the defendants have not paid the amount mentioned in the mortgage deed, as marked in Ex.A6. THErefore, the plaintiff was constrained to issue notice, to which the second defendant replied saying that repayment will be made in the month of July, 1979. Since no amount has been paid, the plaintiff was constrained to issue a legal notice and after receiving the reply, denying the contents of the legal notice, he was constrained to file the suit for recovery of amount as mentioned in the mortgage deed. THE defendants have filed the written statement stating that it is no doubt true that Ex.A6 has been executed by the second defendant but only a sum of Rs.10,000/- has been received for the purpose of purchasing the property from Narayanasamy Naicker and thereafter, a sum of Rs.3,000/- alone was received towards the expenses for the execution of the mortgage deed. THE defendants specifically denied that a sum of Rs.6,000/- has been received for clearing the family debts and family necessity. THE defendants has also denied that there is no loan due to Alagarsamy Naicker and it is further denied that no promissory note has been executed in favour of the Alagarsamy Naicker and therefore, there is no question of discharge of the said loan by the plaintiff. It is the further case of the defendants that out of the sum of Rs.13,000/- received, a sum of Rs.8,000/- has been repaid to the plaintiff. Hence, the defendants prayed for dismissal of the suit.

(3.) THE trial Court has granted a decree for a sum of Rs.16,000/- by holding that the amount given to the Narayanasamy Naicker by the plaintiff and the amount of Rs.6,000/- given to the defendants are true and genuine. THE trial Court has rejected the contentions of the plaintiff regarding the remaining amount of Rs.10,000/- by which, the plaintiff is said to have discharged the loan of the defendants, by holding that the plaintiff has not proved the same. Similarly, the Court below has rejected the contentions of the defendants that a sum of Rs.8,000/- has been paid. THErefore, challenging the said judgment and decree of the Court below, the plaintiff/petitioner has preferred the present appeal.