KUPPUSWAMI AIYAR Vs. SABAPATHY PATHAN

JUDGEMENT

(1.) This second appeal raises limitation. The main facts are not in dispute. 3 and the father of the second plaintiff sold the suit property to one Chidambara Pathan and his brother Vaithyalinga Pathan, by a sale-deed dated the 16 October, 1911, and as on the said date the second plaintiff was a minor, a sum of Rs. 800 was retained with the vendees to be paid either on the second plaintiff attaining majority or on the vendors giving security. On the said date a mortgage-deed was executed by both Vaithyalinga Pathan and Chidambara Pathan in favour of the first plaintiff and the father of the second plaintiff for Rs. 800 securing that amount. The recital as regards payment under the said mortgage is to this effect: We will pay you the said sum of Rs. 800 without any objection together with interest at 11 as. per cent, per mensem at any time whenever you demand us to pay after giving security for the sum.

(2.) On the 19 December, 1915, the vendees appear to have usuf ructuarily mortgaged the said property to one Kandaswami Pillai by a deed in and by which it was stipulated that the usufructuary mortgagee should pay the said sum of Rs. 800 secured by the mortgage as aforesaid in accordance with the directions contained therein. In August, 1916, a demand appears to have been made by the mortgagees to pay the amount due under the mortgage dated the 16 October, 1911. In answer thereto Vaithyalinga Pathan and Chidambara Pathan gave ajeply dated the 3 October, 1916, to the effect that they had arranged for the payment of the mortgage amount with the usufructuary mortgagee under the mortgage-deed dated the 19 December, 1915. This suit was filed on the 31 March, 1928, to enforce the mortgage dated the 16 October, 1911.

(3.) In the plaint the reply notice dated the 3 October, 1916, which is marked as Ex. C in the case is relied on for the purpose of saving limitation. Ex. C is in the following terms: On 19 December, 1915, we have usufructuarily mortgaged our lands to one Darasuram Kandaswami Nayanakkar, and we have therein directed that after giving security to him for minor's share you should receive the amount of principal and interest due in respect of the mortgage executed in favour of both of you. It is a mistake that you have given me this notice on Nala year Ani 9 without receiving the said amount from him. Since we have directed on 19 December, 1915, in the abovesaid manner, please take notice that we will not be liable for any Court costs or damages as claimed by you in your notice.