KRISHNASWAMI AIYAR Vs. SABARATHNAM CHETTI

JUDGEMENT

(1.) This is an appeal dismissing the plaintiffs suit for redemption and possession of 41 cents of land bearing Survey No. 382-B as being barred under Art. 134 of the Limitation Act. The defendants who are apparently quite rich, have not chosen to appear. The facts of the case are quite simple.

(2.) The property in suit originally belonged to one Kuppa Goundan, who mortgaged it on 19th September, 1890, with one Lakshminarayana. The mortgage was usufructuary and it was provided in the deed (Ex. K) that the mortgagor would pay the principal amount and redeem the property on 11 April, 1901. Kuppa Goundan sold the property to the plaintiff's uncle in 1896 under Ex. A and directed the vendee to pay the mortgage money due under Ex. K to the mortgagee. The property subsequently fell to the plaintiff under Ex. B.

(3.) Prior to the date on which the mortgage could be redeemed, Lakshminarayana died - apparently leaving large debts due to the father of defendants 1 to 4 and his widow therefore acting as a guardian on behalf of his minor son executed a simple mortgage (Ex. IV) for Rs. 35,000, on 17 October, 1899. The property which had been mortgaged with Lakshminarayana under Ex. K and subsequently sold to the plaintiff, was also included in the deed. The mortgage was without possession. She executed another mortgage in favour of the same mortgagee for Rs. 1,19,771-8-0 on 4 November, 1900 (Ex. V). This purported to be a usufructuary mortgage for a period of ten years; but the recital in this deed points out to the fact that she was not in a position to surrender actual possession of the properties, as they happened to be in the possession of a receiver appointed in connection with O.S. No. 5 of 1900 and pending before the District Court of Cuddalore. A provision was therefore made that as long as she was not in a position to deliver possession, interest would be paid at Rs. 0-14-0 per cent, per annum.