RAMASWAMI AIYAR Vs. VYTHINATHA AIYAR

JUDGEMENT

(1.) The plaintiff claiming as the daughter's son and legal representative of one Ramien, deceased, instituted O.S. No. 26 of 1890 (on the tile of the District Munsif's Court at Trichinopoly) for the redemption of a usufructuary mortgage of about 50 cawnies of land for Rs. 250. The mortgage was alleged to have been made by Ramien, under an instrument dated 18 March 1856. The defendants, while denying the plaintiff's relationship to Ramien as well as the mortgage sued upon, pleaded that 14 out of the 50 cawnies had been usufructuarily mortgaged to them by Ramien for Rs. 500, under an instrument dated 5 February 1853 and that the same had been sold to them subsequently as also the remaining 36 and odd cawnies.

(2.) Without deciding the question of the plaintiffs relationship to Ramien the suit was dismissed on the ground that the mortgage sued upon was not proved, and was in fact, fictitious and the decision was confirmed on appeal. The plaintiff preferred a second appeal and claimed a decree in respect of the 14 cawnies on the footing of the mortgage of the 5th February 1853. which the defendants set up. But the High Court declined to grant such relief on the grounds that the said mortgage was not admitted to be a subsisting mortgage and that the plaintiff not having sued, in the alternative, on that mortgage, no issue could be raised and tried in respect of it in that suit.

(3.) The plaintiff brings the present suit substantially against the same defendants for redeeming the 14 cawnies on the footing of the mortgage of the 5 February 1853, The District Munsif found that the plaintiff was the daughter's son and legal representative of the mortgagor, Ramien, and that the sale relied upon by the defendants was not true, and. holding that the suit was not barred as res judicata by the previous suit, he decreed redemption in favour of the plaintiff. But the District Judge on appeal dismissed the suit on the ground that, when he brought the former suit; he was aware of the mortgage now sued upon, and that he was therefore, barred by the rule of res judicata from bringing this suit.