(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, praying to set aside the Judgment and Decree dated 27.04.2010 passed by the I Additional Subordinate Judge, Padmanabhapuram in A.S.No.24 of 2007 confirming the judgment and decree dated 29.12.2006 passed by the Additional District Munsif, Padmanabhapuram in O.S.No.214 of 2004 and allow the Second Appeal.)
1. The unsuccessful plaintiff in the suit in O.S.No.214 of 2004 on the file of Additional District Munsif Court, Padmanabhapuram, is the appellant in this Second Appeal.
2. The plaintiff's case as set out in the plaint filed by the plaintiff / appellant are as follows:
2 (a). The suit property is an extent of 96 cents in Re-Survey No.517/11 and 517/4 in Attoor Village, Kalkulam Taluk, Kanyakumari District and the suit is for partition and separate possession of the plaintiff's 6/8 share in the suit property. The plaintiff / appellant stated that the suit property originally belonged to one Umaiamma Pillai. The said Umaiamma Pillai, who is the exclusive owner of the property, executed an usufructuary mortgage and Kuzhikkanam on 27.07.1120 M.E. (Corresponding to 1945) in favour of one Kochappi Nadar. The said Kochappi Nadar, the mortgagee, died on 28.10.1957 leaving behind his wife one Gnanavadivu Nadachi and eight children. One of whom is the plaintiff / appellant. On 28.04.1989, the mother of plaintiff / appellant died and her rights over the suit property also devolved on her children equally. Thus, the mortgage right vests with the eight children of Kochappi Nadar.
2 (b).The mortgage created in the year 1945 is time barred in view of the fact that the original mortgagor or his heirs do not come forward to redeem the property within time. The plaintiff is in joint possession of the suit property.
2 (c).The plaintiff / appellant purchased the rights of her three sisters by a registered sale deed dated 17.02.1994. Again by a registered sale deed dated 23.03.1994, the plaintiff / appellant has purchased the rights of other two sisters. Thus, the plaintiff / appellant has acquired the rights of all the children of the mortgagee, except two, namely, the brother and another sister of the plaintiff / appellant and hence, she is entitled to 6/8th share in the suit property and hence, the suit for partition of 6/8th share.
3.Though the plaintiff / appellant admits that there was an earlier suit in O.S.No.245 of 1967 for redemption of mortgage, the plaintiff / appellant still sets up title in her on the ground that the suit for redemption in O.S.No.245 of 1967 is not binding on her and other sisters, since all the daughters of the mortgagee are not made as parties in the suit for redemption, the suit in O.S.No.245 of 1967 is not maintainable and the decree in the suit for redemption, according to the plaintiff / appellant, cannot stand in the way of the present suit for partition because of the mortgage being time barred and the title vests in the legal heirs of original mortgagee.
4.From the written statement filed by the 4th and 5th defendants, it can been seen that the specific stand taken by the fourth defendant is that after the death of Kochappi Nadar, the original mortgagee, the suit property was only in the possession of his widow and only son Muthunayagam, the second defendant in the suit. Since possession was with the wife and son of the mortgagee and the mortgagor is not aware of the other daughters of Kochappi Nadar, the mortgagor of the suit property namely Sankara Pillai filed a suit in O.S.No.245 of 1967 for redemption of the othi deed and Kuzhikkanam deed against Gnanavadivu Nadachi, wife of mortgagee and her son, the second defendant in the suit and obtained a decree for redemption on 11.11.1968. It is their specific case that they had obtained delivery of the mortgaged property through Court on 04.08.1969 and the mortgagor was in possession and enjoyment of the entire land mortgaged. Hence, according to the fourth and fifth defendants, there was no subsisting mortgage.
5. The fourth defendant is the daughter of Sankara Pillai and the fifth defendant is the son of Sankara Pillai, the original mortgagor. It is the contention of the fourth and fifth defendants that the rubber trees were planted by the defendants and the trees are 20 years old. According to them, on the death of original mortgagor, namely, Sankara Pillai, the suit property devolved upon his widow and children namely the defendants 3 to 8. After the redemption of mortgage, defendants 3 to 8 got title and possession.
6. It is also their case that all the children of mortgagee are bound by the judgment and decree in O.S.No.245 of 1967 and the present suit is barred by the principles of res judicata as there was substantial representation in the previous suit in O.S.No.245 of 1967. After redemption of mortgage by Sankara Pillai, pursuant to the decree in O.S.No.245 of 1967, he became the absolute owner of the property and possession was with him. After the death of Sankara Pillai, the property devolved on the wife of Sankara Pillai, the third defendant in the suit and the children of Sankara Pillai, who have figured as defendants 4 to 8. The defendants also pleaded that the mortgage was only in respect of about one acre. Out of the extent of one acre 62 cents, the legal heirs of original mortgagor, namely, Sankara Pillai, partitioned the entire one acre and sixty two cents including the suit property and other properties belong to Sankara Pillai by virtue of a registered partition deed dated 25.02.1976. As per the partition deed, the defendants 3, 5 and 7 together got 1/3rd share in the suit survey number and remaining 2/3 share was allotted to 6th defendant and 8th defendant equally. The third defendant given her share to the seventh defendant by a gift deed which is registered as Document No.108/1989. The seventh defendant who got 2/3rd of 1/3rd share conveyed her right in favour of 9th defendant by a sale deed dated 01.06.1994. The fifth defendant sold her 1/3rd of 1/3rd right to the fourth defendant by a registered sale deed dated 26.08.1983. The eighth defendant sold her 1/3rd right in favour of the fifth defendant by a sale deed dated 19.05.1993. By virtue of the transactions, the entire extent of 1.62 acres belonged to defendants 4, 5, 6 and 9. While the defendants 5 and 6 are entitled to 54 cents each, the fourth defendant is entitled to 18 cents and the 9th defendant is entitled to 36 cents. According to the defendants, defendants 4,5,6 and 9 are in possession and enjoyment of their respective areas with reference to the specific boundaries.
7. The written statement filed by the ninth defendant was also in the same line and the ninth defendant claimed right in respect of an extent of 36 cents and pleaded that apart from 36 cents, she has got an agreement for sale executed by the 7th defendant on behalf of the 4th defendant.
8. Sum and substance, the defendants claimed that they are in physical possession of the property. Since 9th defendant died during pendency of the suit, defendants 10 to 13 were impleaded as legal heirs of the 9th defendants. Defendants 10 to 13 also filed separate written statement adopting the written statement filed by 9th defendant raising some legal issues.
9. The plaintiff / appellant also filed a reply statement denying the contents in the written statement filed by the defendants reiterating that the suit property was in the joint possession and enjoyment of the widow and children of the original mortgagee, namely, Kochappi Nadar. It was also reiterated that the wife of Kochappi Nadar, namely, Gnanavadivu Nadachi died as Hindu on 28.04.1989 and that her rights over the suit property devolved on her children equally. The plaintiff / appellant denied the contention that her mother was a Christian, as alleged by the defendants. It was further pleaded by the plaintiff / appellant in her reply statement that no actual delivery was effected and the delivery of possession pursuant to the decree for redemption is only a paper delivery. Since Sankara Pillai did not redeem the mortgage from the daughters of Kocahppi Nadar, the defendants 3 to 9 cannot claim title to the property, as the decree and judgment in O.S.No.245 of 1967 is not binding on the daughters of Kochappi Nadar.
10. From the reading of reply statement, it can be seen that the plaintiff / appellant has also pleaded that physical possession was with the daughters of Kochappi Nadar and that they have perfected title to the suit property because of the failure to redeem the mortgage from them in time.
11. The plaintiff / appellant in her cross examination admitted that she was a minor when the suit for redemption was filed in 1967. The plaintiff / appellant admits in her cross examination that in a complaint preferred by her, she had admitted that 9th defendant had planted stone pillar in the suit property.
12. The first defendant in the suit is one of the sisters of the plaintiff. Though she supported the plaintiff's / appellant's case by filing written statement and prosecuted the suit with the same stand, she did not file any individual appeal after the dismissal of the suit by the trial Court. She was set ex parte before the appellate Court. The second defendant namely the brother of the plaintiff / appellant did not file any written statement and he was set ex parte by the trial Court. Though he died during the pendency of the appeal and his legal representatives were impleaded as respondents 13 and 14 in the appeal, the respondents 13 and 14 did not contest the appeal.
13. The trial Court dismissed the suit after holding that the mortgage is not subsisting after the decree passed in the suit for redemption in O.S.No.245 of 1967. The trial Court held that there was substantial representation in the suit in O.S.No.245 of 1967. Hence, the trial Court further held that the decree passed in the suit for redemption in O.S.No.245 of 1967 is binding on the plaintiff / appellant and other legal heirs of original mortgagee. The trial Court also found that the revenue documents filed by the plaintiff / appellant which are only of recent origin, though relating to suit property, could not confer any right in favour of the plaintiff / appellant to prove her possession or title. Since it is not the case of the plaintiff / appellant that the decree in O.S.No.245 of 1967 was obtained by fraud or collusion and the decree in O.S.No.245 of 1967 is not challenged, the trial Court found that mortgage and Kuzhikkanam had come to an end by the decree in O.S.No.245 of 1967 and that the mortgage money due under othi and Kuzhikkanam are fully discharged. The trial Court also found that the plaintiff / appellant has not proved that she is in possession as a co-owner, as contended by her and that she is not entitled to any right. Since the trial Court dismissed the suit after holding against the plaintiff / appellant about her title and enjoyment, the plaintiff / appellant filed an appeal in A.S.No.24 of 2007 on the file of the First Additional Sub Court, Nagercoil. The appellate Court also was of the view that the legal heirs of the original mortgagee has no right to claim title as they are only entitled to get a share in the mortgage money. The appellate Court also found that the earlier suit for redemption is binding on the plaintiff and other legal heirs of the mortgagee as the suit filed against the mother and brother of the plaintiff / appellant is not tainted with any illegality. Applying the principles of substantial representation, the appellate Court also found that the mortgage had already been redeemed by virtue of the decree passed in the suit for redemption in O.S.No.245 of 1967. The plaintiff has now filed the above second appeal raising the same grounds that were raised by her before the Courts below.
14. The learned counsel for the plaintiff / appellant raised the following points:
(a) When the daughters of the original mortgagee are not made as parties to the suit for redemption, the judgment and decree in O.S.No.245 of 1967 and the subsequent delivery through Court will not bind the daughters of the mortgagee.
(b) The original mortgage is time barred and hence, the plaintiff / appellant, having purchased the share from five of her sisters, is entitled to 6/8 share in the suit property and the Courts below ought to have granted the decree for partition of her share. Since all the revenue records stand in the name of the plaintiff / appellant, the Courts below ought to have accepted the case of the plaintiff that she is in joint possession and enjoyment of the suit property. Since the daughters are not made as parties in the redemption suit, the delivery under the document Ex.B4 should be treated as paper delivery.
15. Under Section 60 of the Transfer of Properties Act, a mortgagor has to redeem the mortgage on payment of or upon tendering the mortgage money. Payment or tendering of money to few of several co-heirs of a deceased mortgagee will not always put an end to the mortgage in all cases. Though a Full Bench of this Court has indicated that the payment of amount borrowed to one of several co-creditors would discharge the debt, this view was not accepted later on in several judgments. But, in the present case, a suit for redemption was filed in O.S.No.245 of 1967 and the same was decreed. Though the suit was filed against the widow and the son of the original mortgagee, there was substantial representation. Further, pursuant to the decree in the suit for redemption, the possession was secured by the mortgagor by filing execution petition and it is proved that possession was delivered to the mortgagor through Court. Thus, the entire mortgage money was paid and the mortgage is discharged by process known to law. Hence, upon payment of the mortgage money, pursuant to the decree for redemption, the mortgage comes to an end irrespective of the fact that some of the legal heirs of the original mortgagee were not made as parties in the suit for redemption. Since there was substantial representation, the decree in O.S.No.245 of 1967 is also binding on the other legal heirs of the original mortgagee.
16. The plaintiff / appellant has come forward with a suit for partition of her 6/8th share did not choose to question the decree in O.S.No.245 of 1967. After few decades, she has filed a suit for partition only on the ground that the decree for redemption is not binding on her as she was not made as party. When the mortgage was redeemed and possession was taken by the mortgagor, pursuant to the decree for redemption, the plaintiff's / appellant's claim that she is entitled to title to the property on the ground that the previous mortgage is time barred, is wholly misconceived. It is well settled that the statute of limitation only bars the remedy and not the right. Rule of limitation are not made to destroy the right of parties. It is founded on public policy as its aim is to quicken diligence. When the plaintiff / appellant is not in possession of the property, she is not entitled to claim title on the basis that the defendants have lost their right because the mortgage is time barred. Merely because the decree in the suit for redemption is not against her, she cannot claim title in all circumstances. Once the principle that the law of limitation neither creates nor destroys any right but it only bars remedy, the plaintiff / appellant, who is not in possession as a mortgagee, cannot claim title or seek partition of her enlarged share (by sale deeds from other sisters) only as a legal heir of the mortgagee. The suit for partition on the basis of the plaintiff's / appellant's claim as legal heir of the original mortgagee in the present factual background is unsustainable in law.
17. The plaintiff / appellant though claims that she is a co-owner, the defendants 3 to 9 are strangers and a suit for partition by paying fixed Court fee against strangers is not maintainable. The properties are not in the enjoyment of the plaintiff / appellant and the assertion of the plaintiff / appellant on the basis of the revenue records cannot be legally sustained.
18. It is not as if the plaintiff / appellant did not know the decree in the suit in O.S.No.245 of 1967 at the relevant point of time. After having knowledge of the decree for redemption, she cannot be allowed to raise the plea that the decree in the redemption suit as invalid and not binding on her. The original mortgagee namely Kochappi Nadar died leaving behind his wife and a son and seven daughters including the plaintiff / appellant. The wife and son of Kochappi Nadar are parties in the suit for redemption. The payment of mortgage money pursuant to the decree for redemption is not in dispute. The decree for redemption was not challenged by any one of the daughters of Kochappi Nadar all these years even though possession of the suit property was also secured by the mortgagor by executing the decree. At this length of time, in a suit filed by the plaintiff / appellant, after few decades, on the plea that the original mortgage is time barred, is wholly misconceived and hence, the plaintiff's / appellant's suit deserves dismissal.
19. In view of the reasons stated above, the second appeal is dismissed and the judgment of the lower appellate Court in A.S.No.24 of 2007 dated 27.04.2010 confirming the judgment and decree of the trial Court in O.S.No.214 of 2004, dated 29.12.2006 is confirmed. No costs. Consequently, the connected miscellaneous petition is closed.