He also companytended that the mortgage dated 7.9.1935 was numberlonger subsisting and the plaintiffs had numberright of redemption.
A 3 by receiving Rs.300/ from the assignee and delivered possession of the suit property to the assignee.
His widow and first daughter Kuppammal died subsequently.
The said Sakkubai Ammal filed the said suit O.S. No.1079/81 on the file of the District Munsiff, Kallakurichi on 16.11.1981 for the following reliefs i a preliminary decree for redemption of the usufructuary mortgage dated 7.9.1935 in regard to the suit property, ii for an account in respect of the income therefrom, from the date of discharge of the mortgage and iii for a final decree for redemption of the mortgage.
The first appellate companyrt allowed the said appeal by judgment and decree dated 18.12.1990.
The mortgage was executed on 7.9.1935.
Thereafter, a numberice dated 9.10.1977 was also sent to Azhagiri Pillai who sent a reply dated 26.10.1977 repudiating the claim and setting up an oral sale in his favour in December, 1953/January, 1954.
Feeling aggrieved, plaintiffs 2 to 5 filed an appeal before the Subordinate Court, Virudachalam.
The deed provided that mortgagee is entitled to be in possession of the mortgaged property in lieu of interest till redemption.
2.3 The mortgagor Manickam Pillai died some years after executing the mortgage deed, survived by his widow and four daughters.
He companytended that he perfected his title by adverse possession.
Before such gift settlement, Thukkaram, Yasodai Ammal and Sakkubai Ammal issued a numberice on 21.8.1977 for redemption of the mortgage.
Re question ii The plaintiffs have made the necessary averments in the plaint for invoking and seeking relief under the Tamil Nadu Debt Relief Act, 1979.
The new Act came into force on 1.1.1964.
When the suit was filed on 16.11.1981, the new Limitation Act was in force under which the period of limitation was 30 years.
The third defendant filed Second Appeal No.99/1991 before the Madras High Court against the said judgment.
He also filed an application CMP No.
In the said suit, Jayalakshmi Ammal and Krishnaswamy Iyenger legal heirs of the assigneee of the mortgage were impleaded as defendants 1 and 2.
Azhagiri Pillai who was in possession, either as a licensee or lessee of Soundararaja Iyenger, was impleaded as the third defendant.
The said assignee, Soundararaja Iyenger died leaving him surviving his widow Jayalakshmi Ammal and son Krishnaswamy Iyenger defendants 1 and 2 in the suit .
The assignment of mortgage by the mortgagee under deed dated 12.2.1954 did number amount to acknowledgement for extending limitation for filing a suit for redemption.
The trial companyrt held that the question of the mortgage being discharged under the provisions of the Debt Relief Act, 1979, would arise only if the mortgage dated 9.7.1935 was subsisting as on 15.7.1978 when the said Debt Relief Act came into force.
As the said defendant had let out the suit property to Raghamathulla Sahib and Mayava Pandithan, they were impleaded as defendants 4 and 5.
The plaintiffs companytended that having regard to the fact that the mortgagee and his successors had been in possession for more than ten years, the mortgage stood discharged with effect from 14.7.1978 under section 9 5 a of the Debt Relief Act and therefore, they are entitled to sue for redemption.
Her legal heirs, that is, husband Vijayarangam Pillai, sons Prabhakaran and Venkatesan, and daughter Vatchala were impleaded as plaintiff Nos.3, 2, 5 and 4 respectively.
It held that the oral sale put forth by the third defendant was number proved and at all events void and invalid as any sale for a companysideration of more than Rs.100/ companyld be only by a registered instrument.
The second daughter also died leaving behind her son Thukkaram.
The plaintiffs companyld number alternatively claim relief under the Tamil Nadu Agriculturist Relief Act, 1938 Act 4 of 1938 as amended by Act 24 of 1950, as such a case was number pleaded.
The period of limitation for a suit for redemption was 30 years under Article 61 a of the Limitation Act, 1963, while the period of limitation was 60 years under the companyresponding Article 148 of the Limitation Act, 1908.
When the said deed of assignment was executed on 12.2.1954, the mortgage dated 7.9.1935 was subsisting, as the period of limitation at that time, was 60 years.
Consequently, the first appellate companyrt allowed the appeal, set aside the judgment and decree of the trial companyrt and granted a preliminary decree for redemption with companyts, as prayed.
Where the period of limitation under the new Act was shorter, having regard to Section 30 of the new Act, the suit ought to have been filed within 7 years from the date of companymencement of the said Act.
Therefore, the last date for filing the suit for redemption was 1.1.1971 and the suit filed on 16.11.1981 was barred by limitation.
Defendants 1 and 2 sent a reply dated 26.8.1977 refusing to companyply on the ground that they were number in possession of the suit property and one Azhagiri Pillai third defendant in the suit was in possession of the property.
200/ that they first plaintiff and her sisters approached him for discharging the said debts that the property was valued at Rs.1,000/ , and it was agreed that he should pay them Rs.400/ and retain the balance of Rs.600/ to discharge the two mortgage debts that accordingly he paid Rs.400/ to first plaintiff and her sisters in December, 1953 or January, 1954 and purchased the suit property under an oral sale that as he did number have the funds to pay the mortgage debts, his friend Soundararaja Iyenger came to his rescue with the understanding that he Soundararaja Iyenger would discharge the usufructuary mortgage in favour of Krishna Pillai and simple mortgage in favour of Raju Pillai and obtain assignments of the mortgages, and thereafter receive the amount from the third defendant as and when he was able to pay the amount that in pursuance of such arrangement, Soundararaja Iyenger paid the mortgage amount to Krishna Pillai and Raju Pillai and obtained assignments dated 12.2.1954 in his favour that subsequently in the year 1960, the third defendant paid the amount to Soundararaja Iyenger and that he obtained possession of the suit property in the year 1954.
During the pendency of the suit, the first plaintiff Sakkubai Ammal died.
His third daughter Yasodai Ammal and Thukkaram settled their share interest in the right of redemption in favour of the fourth daughter of Manickam Pillai, namely, Sakkubai Ammal first plaintiff under registered deed dated 24.8.1981.
In view of the admission of jural relationship companytained in the assignment deed, operating as an acknowledgement of liability, a fresh period of limitation started from 12.2.1954.
Defendants 1 and 2 as also defendants 4 and 5 remained ex parte.
The appellate companyrt also held that having regard to the acknowledgement companytained in the deed of assignment of the mortgage dated 12.2.1954 by Krishna Pillai, the mortgage was subsisting and the first plaintiff was entitled to file a suit for redemption within 30 years from 12.2.1954, and, therefore, the suit filed in the year 1981 was number barred by limitation.
When the 30 years period is companyputed from 12.2.1954, the suit filed in the year 1981 was clearly within limitation.
The High Court though referred to the said further statement in the deed of assignment, missed its significance and erroneously held that the deed companytained only a passing reference to the mortgage, and number a companyscious acknowledgement.
A learned Single Judge of the Madras High Court by judgment dated 1.9.1999, allowed the second appeal, and companysequently, dismissed the suit, holding as follows The companycurrent finding of fact recorded by the trial companyrt and first appellate companyrt that Azhagiri Pillai third defendant , did number acquire title by adverse possession, did number call for interference.
Only the third defendant, Azhagiri Pillai companytested the suit, alleging that he was the companysin of first plaintiff that apart from the mortgage dated 7.9.1935 created by Manickam Pillai, the suit property was mortgaged by the daughters of Manickam Pillai to one Raju Pillai on 22.6.1948 for Rs.
Brief facts necessary for disposal of this appeal are 2.1 One Manickam Pillai obtained a loan of Rs.300/ from Krishna Pillai and mortgaged his property situated in Prithivimangalam Village, Thyagadurgam Taluk, for short the suit property in favour of the said Krishna Pillai under a usufructuary mortgage deed dated 7.9.1935 Ex.
5963 of 1997 in the second appeal for amendment of the decree by amending the description of the suit property so as to be in companyformity with the deed of mortgage dated 7.9.1935 Ex.
The plaintiffs were number entitled to any relief under the provisions of the Tamil Nadu Debt Relief Act, 1979, as the mortgage was number subsisting on 15.7.1978, when the said Act came into force.
After evidence, the trial companyrt dismissed the suit by judgment and decree dated 30.10.1987 holding that the mortgage deed dated 7.9.1935 was number subsisting as on the date of the suit, that the right of redemption was barred by limitation, and the third defendant had perfected his title over the suit property by adverse possession.
2.2 The mortgagee Krishna Pillai assigned the said mortgage in favour of one Soundararaja Iyenger also known as Soundararaja Achariar under registered deed dated 12.2.1954 Ex.
Plaintiffs companytended that the mortgage and the right of redemption were subsisting, in view of the assignment dated 12.2.1954 being an acknowledgement and that the mortgage debt stood discharged by Section 9 of the Tamil Nadu Debt Relief Act, 1979 for short the Debt Relief Act .
RAVEENDRAN, J. This appeal by special leave is filed by the legal representatives of the plaintiffs in a suit for redemption of mortgage.
