P V MADHAVAN VYDIAR Vs. LAKSHMANA PATTAR

JUDGEMENT

(1.) The plaintiff s allegations are that a Nair Tarwad was the jenmi of the plaint property, that it was mortgaged to the ancestors of defendants Nos. 1 and 2, that the said persons sub- mortgaged it to a person not before the Court who transferred his rights to the 3rd defendant, that the 3rd defendant subsequently purchased the jenm right from the Nair Tarwad and gave the plaintiff a second mortgage in 1912 (Exhibit H). He sues to redeem the first mortgage. He does not give the date of the first mortgage but relies upon the admission of the ancestor of the 1st and 2nd defendants contained in Exhibit A and upon the statement of the 2nd defendant contained in Exhibit L In Exhibit A, while granting a sub-mortgage, the ancestor mentioned that the property was held by him under a kanom from the Nair Tarwad. In Exhibit L, which was a statement Bled in proceedings taken by the plaintiff under Section 83 of the Transfer of Property Act, the 2nd defendant stated that the amount due and payable to him under the mortgage was not the amount deposited in Court. How far this admission is evidence against the 1st defendant and to what extent the 2nd defendant himself is bound by it are questions for the Appellate Court. The case for the defendants is that the mortgage sought to be redeemed is not subsisting and that the burden is on the plaintiff to prove that there is a redeemable mortgage.

(2.) The District Munsif held that the suit was not barred by limitation, but that as the plaintiff failed to prove the mortgage sued on, he was not entitled to a decree.

(3.) On appeal, the Subordinate Judge held that the burden of proving that the mortgage sought to be redeemed is subsisting was on the plaintiff and that as he failed to prove that fact, the suit was rightly dismissed.