KARAMADAI NAICKEN Vs. RRAJU PILLAI

JUDGEMENT

(1.) The second defendant is the appellant. The suit was instituted for recovery of a sum of Rs. 900 due under a mortgage, dated 9 March, 1922. The mortgage was executed by the first defendant in favour of one Mariyayi. Mariyayi died sometime in 1923 leaving behind her Chockalinga, her husband, and Kanakammal, a daughter and Ayyaswami Pillai, a son. Chockalinga died some time before 1931. The exact date of death is not known. The mortgagor intended to discharge the mortgage in 1931, and on the assumption that Ayyaswami, the son of the mortgagee, was entitled to the amount due under the mortgage, executed a deed of assignment of a usufructuary mortgage executed in his favour by a third party, in favour of Ayyaswami, This deed of assignment is Ex. P-2, dated 9 September, 1931. The mortgage debt due by that date was ascertained and was found to be Rs. 609. He executed a promissory note for a sum of Rs. 200 on that date. The consideration for the assignment by the usufructuary mortgage was taken to be Rs. 300 and a cash of Rs. 109 was paid to make up the total of Rs. 609 due under the mortgage in favour of Mariyayi. Thus the entire mortgage debt was discharged by this arrangement with the son of the mortgagee. The first defendant sold the property comprised in the mortgage to one Palanisami in July 1937 and from Palanisami the second defendant purchased the property on the nth June, 1942. After all this, Kanakammal, the daughter of Mariyayi, executed in favour of the plaintiff a deed of assignment in respect of the mortgage debt due under the mortgage executed by the first defendant on the 9 March, 1922. On the basis of this assignment the assignee instituted the present suit to enforce the debt under the mortgage deed. The assignment by Kanakammal was on the footing that the mortgage debt was the stridhana property of Mariyayi, and that after her death it had devolved upon her as her heir.

(2.) In the suit the first defendant was ex parte as he had no interest in the property, and the second defendant was the main contesting defendant. The chief among the pleas raised by the defendant were that the mortgage debt was really the property of the family of Chockalinga and Ayyaswami, that Mariyayi was merely a name-lender, and that therefore the discharge of that debt by the arrangement evidenced by Ex. P-2 was valid; and secondly that as the mortgage was dated 9 March, 1922, and the present suit was instituted only on the 6th September, 1943, the suit was barred by limitation. The plaintiff anticipated the plea of limitation and relied upon Ex. P-2 as containing an acknowledgment of the liability by the first defendant.

(3.) The trial Court upheld both the contentions of the defendant and dismissed the plaintiff's suit. On appeal the learned Subordinate Judge reversed the decision on both the points and decreed the plaintiff's suit.