THAYYANAYAKI AMMAL BY AGENT VISWALINGAM CHETTIAR Vs. MINOR SUNDARAPPA ALIAS APATH SAHAYA KANDIAR, BY HIS MOTHER AND GUARDIAN ALAMELU AMMAL (DEAD)

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff from a decree of the Subordinate Judge, Kumbakonam, dismissing a suit brought to enforce a mortgage executed by one Rajagopala Kandiyar on 4 June, 1913. Plaintiff claims title to the mortgage under the will of her father Sabapathi Chetti who was the son of the mortgagee and died in December, 1934. The first defendant is the son of the mortgagor and the sixth defendant is the Official Receiver of Tanjore in whom the estate of the mortgagor has become vested on his adjudication as insolvent. The other defendants claim interest as purchasers in different items of properties comprised in the mortgage. The suit was filed in 1937 and certain part payments alleged to have been made from time to time and endorsed on the bond by the mortgagor were relied on as extending the period of limitation. The Court below held that some of these alleged payments and endorsements were not genuine and dismissed the suit as barred by limitation, and the main question argued in the appeal is whether this finding is correct.

(2.) There are five endorsements on the mortgage bond (Ex. A) and these have been marked as Exs. A-l to A-5. Of these, the first three endorsements evidencing payments of Rs. 521-11-6, Rs. 100 and Rs. 10 made respectively on 11th December, 1914, 9 April, 1916 and 6 April, 1922, are admitted to be genuine, and the dispute relates to the last two (Exs. A-4 and A-5), dated respectively 23rd February, 1928 and 13 November, 1932. (After discussing the evidence His Lordship concluded:)

(3.) We are therefore unable to agree with the Subordinate Judge's conclusion that the endorsements Exs. A-4 and A-5 were fabricated in order to save the suit from the bar of limitation.