N ADINARAYANA CHETTY Vs. TTKKAPPAN SRIRANGACHARIAR

JUDGEMENT

(1.) This is an appeal from the decree of the subordinate Judge of Chittoor dated 14 August 1936 in Order Section No. 6 of 1934 on his file. The suit was one for recovery of the plaint property with past mesne profits after declaring that the usufructuary mortgage executed by the plain, tiff's deceased paternal uncle Srirangachari in favour of defendant l's adoptive father for Rs. 4440 on 17 July 1895 is void and not binding on the plaintiff. In the alternative, the plaintiff sued for redemption of that mortgage after taking an account of what was due to defendant 1, the mortgagee. The remaining two defendants are the natural father and brother of defendant 1 and they merely adopted the contentions of defendant 1. The plaint, which does not appear to have been carefully drafted, proceeds on the basis that the plaintiff and his paternal uncle were hereditary office-holders in the Thirumalai Tirupathi Devasthanams, the office being the office of Acharyapurusha, and that the plaint property was granted to the family of the plaintiff as a service inam for their maintenance and upkeep in lieu of the emoluments appertaining to the office referred to above and that the said grant was confirmed by the British Government at the time of the Inam Commission and was to continue so long as the services were performed. The plaint further alleged that for the purpose of convenient enjoyment the inam village was allotted to the share of the plaintiff's uncle, who died in or about May 1932, whereupon his estate reverted to the plaintiff as his nearest heir and reversioner. The plaint proceeded on to allege that after the death of the plaintiff's uncle, when the plaintiff attempted to take possession of the village, he was obstructed by respondent 1 who set up the mortgage of 1895 of which the plaintiff came to know for the first time then, and that the mortgage is not valid as being opposed to public policy. The plaint claimed the alternative relief for redemption of the mortgage in question, if it was found to be binding on the plaintiff and defendant 1 was held entitled to the mortgage right conferred on him by the mortgage of 1895.

(2.) The plaint allegations were denied almost in toto in a long written statement filed by defendant 1 which, as observed already, was adopted by the other two defendants. A number of issues were framed in the Court below, as many as thirteen. The learned subordinate Judge did not decide some of those issues, namely issues 1, 2 and 13 and it must be said that the treatment of the other issues has not been as full as it ought to have been in view of the circumstances of this case, with the result that the hearing of the appeal took more time than it Would otherwise have taken. Issues 1 and 2 raised the question of the nature of the grant of the plaint village. They ran as follows : (1) Is the suit inam a service inam as claimed by the plaintiff? (2) Or is it only an inam burdened with service and is therefore alienable? Issue 13 raised the question whether the plaintiff had ceased to be an Acharyapurusha. The main issues that were decided by the Court below were that the present suit for declaring that the mortgage of 1895 is void is barred by limitation as well as by res judicata, the Court below holding that though the mortgage was void as being contrary to public policy, nevertheless the mortgagee had acquired by prescription the mortgage right over the property, he having prescribed only for a mortgage right and not for absolute ownership of the property. The lower Court also found that as the plaintiff claimed under his uncle, the mortgagor, the finding in a previous suit for redemption, namely Order Section No. 118 of 1916, that the mortgage was true and valid is res judicata for the purpose of the present suit and is binding upon the present plaintiff also. On the other important question as to whether the present suit for redemption was maintainable in view of the previous suit for redemption in 1916 and the decrees therein, the lower Court following the Privy Council decision in Raghunath Singh v. Hansraj Kunwar , held that the present suit for redemption was not barred by res judicata and was maintainable. The Sub-Judge accordingly made a preliminary decree for redemption and directed the appointment of a commissioner to take accounts. He further directed that the commissioner should proceed on the basis that the accounts between the mortgagor and the mortgagee had been settled till 28 July 1905, as shown in the endorsement on the suit mortgage Ex. I, and also on the basis of certain accounts filed by defendant 1 in the prior suit. In other words, the plaintiff was denied the opportunity to question these accounts before the commissioner. Defendant 1 is the appellant in the appeal and the plaintiff has filed a memorandum of cross-objections.

(3.) A preliminary question has been raised in this appeal on behalf of the appellant which has to be dealt with before going into the merits. The point is that the Court below made an order dispaupering the plaintiff who had been permitted to sue in forma pauperis. This order dispaupering him was made on the same day as the judgment in the suit itself, and it would appear from the language employed in the order dispaupering the plaintiff, that it was actually delivered after the judgment in the suit had been delivered: vide para. 6 of the order printed on pp. 30 to 33. In this paragraph the lower Court observed as follows: I hold that the plaintiff is not a pauper and direct him to pay the court-fee due to Government on the plaint and other records in the suit. This order however is not necessary to be enforced separately as the suit itself has been tried and disposed of today and provision will be made in the decree directing the plaintiff to pay the court-fee due on the plaint and other papers.