VEERANNA PILLAI Vs. MUTHUKUMARU ASARI

JUDGEMENT

(1.) The plaintiffs in the present suit had brought a previous suit O.S. No. 510 of 1898 on the tile of the District Munsif's Court of Madura, against nine persons inclusive of the first two defendants in the persent suit who were the 8 and 9 defendants therein, The plaint in that suit, in effect stated that on the 9 august 1864, Suppan Asari, fatner of the plaintiffs in that suit, had for the sum of Rs. 245, stipulated to be re-paid in 3 years, obtained from Palani Kumaru Pillai, grandfather of the then 1 and 3 defendants and father of the 2nd defendant's husband and Muthu karuppa Pillai, father of the then 4 and 5 defendants, a mortgage of the lands now in dispute, which had vested in the mortgagors to the exclusion of third brother, the then 6 defendant, father of the 7 defendant, and after certain other averments, to which reference will be made later on, prayed for a decree for re-payment of the mortgage amount, as well as of certain other sums subsequently advanced on the condition that they were to be re-paid along with the mortgage amount, and for an order for sale of the mortgaged property.

(2.) That suit was eventually, so far as appears, dismissed on the ground that the alleged mortgage was a purely usufructuary mortgage which contained no covenant to pay and that being so, no suit for the money or for the sale of the land could be maintained.

(3.) In the present suit the plaintiffs refer to their alleged title to the lands in question as mortgagees, much in the same terms as in the previous plaint and proceed to state that the present 1 defendant (eighth formerly) though let into possession as a tenant by the plaintiffs is setting up title in himself and (hat he and the 2nd defendant (ninth formerly) who got possession through him refuse, to surrender the land ; and pray for a decree for possession of the lands and mesne profits The plaint slates as an alternative ground for the reliefs claimed that, even should the plaintiffs fail to make out the letting alleged, they are entitled to recover on their title as usufsuduary mortgagees under the said instrument of the 9 August 1864.