SUBBIAH PILLAI Vs. MUTHATHAL ACHI

JUDGEMENT

(1.) The defendant has preferred this second appeal and he repeats the contention taken by him before the lower Courts that as the usufructuary-mortgages now sought to be redeemed by the plaintiff were evidenced by unstamped muris or cadjan leaves, no proof is admissible in support of the claim for redemption and that even if the defendant has admitted that he was holding under such mortgages, it would be of no avail to the plaintiff, as the admission would only be secondary evidence of the contents of the unstamped documents which not only could not be received in evidence, under Section 35 of the Stamp Act but should not even be acted upon for any purpose whatever. The decision in Thaji Beebi V/s. Tirumalaiappa Pillai (1907) 17 M.L.J. 308 : I.L.R. 30 Mad. 386 is strictly relied on in support of this position.

(2.) As pointed out by the learned Subordinate Judge, the unstamped muris must be with the defendant and he would not produce them. This by itself is not however a fact of any importance in connection with the question now raised, because, once it is conceded that the mortgages are evidenced by unstamped documents, even their suppression by the defendant would not render the position for the plaintiff any the better as the prohibition in Section 35 will be attracted and come into play. The several muris under which the usufructuary mortgages were created are referred to in the plaint on the strength of the recitals in Ex. P. 6, an assignment Iin favour of the defendant by the original othidar or his legal representatives. The defendant resisted the redemption only on this ground and no other. Though he had pleaded that he was the owner of the property he conceded later that the plaintiffs were the owners. He did not state in his written statement in so many words that he held possession under the usufructuary mortgages referred to in the plaint and this silence on his part entitled the District Munsiff to say that the possession of the defendant and his pred?cessor in title of the rest of the items for more than 12 years prior to suit is not that of a usufructuary mortgagee. But, on appeal, the defendant's vakil conceded that his client was in possession only as a usufructuary mortgagee and that he had acquired title as usufructuary mortgagee by enjoyment for over the prescriptive period.

(3.) Thaji Beebi V/s. Tirumalaiappa Pillai (1907) 17 M.L.J. 308 : I.L.R. 30 Mad. 386 would apply if the suit was merely one for redemption of the usufructuary mortgages created under the unstamped muris. But the plaintiff has taken care in this suit to say (vide paragraph 10 of his plaint) that he seeks to redeem from the defendant who had held possession as a usufructuary mortgagee under documents not valid in law to create any such rights in his favour. The defendant cannot deny the plaintiff's right to redeem this usufructuary mortgage right which he so acquired by prescription. The dates given for the cause of action in paragraph 14 were referred to by Mr. T. Krishna Rao, the learned advocate for the appellant, in support of his argument that the suit was to redeem the muri mortgages. But the dates would have had to be given even with reference to the prescriptive rights acquired by the defendant by reason of possession for over 12 years under mortgages not valid in law. This is not a case where the plaintiff seeks to redeem a mortgage and being unable to establish it, wants to redeem another mortgage, admitted by the defendant. The muris were set out in the plaint only to show that invalid mortgages were created in favour of the defendant, giving rise to a prescriptive right as usufructuary mortgagee in defendant's favour. This prescriptive title was admitted by the defendant. The learned Subordinate Judge allowed redemption on this basis and I do not think that he was wrong.