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Draviam Chettiar and anr. Vs. Ramaiya Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1935Mad390; 159Ind.Cas.857; (1935)68MLJ362
AppellantDraviam Chettiar and anr.
RespondentRamaiya Chettiar
Excerpt:
- - the best course is therefore to remit the following issues, i......owner, in 1900 under ex. a and that the defendants are in possession as successors in title of manickam chetty, the mortgagee with possession from subba naicks under ex. b of 1900. it has also been found that the plea of adverse possession raised by defendants is not sustainable as manickam chetty was in possession as mortgagee till 1918 and after the sale deed by him of that year only 8 years had elapsed before the suit. in view of these findings the plaintiff was entitled to possession of the property but was bound to redeem the mortgage.2. the learned judge's decree for unconditional possession has therefore to be set aside. the respondent-plaintiff asks that he may be given what the district munsif gave him, a decree for redemption. although there may have been a formal objection.....
Judgment:

Krishnan Pandalai, J.

1. The lower Courts have found that the plaintiff is successor in title to Subba Naick brothers who bought the property from Ayyarappa Naick, the former owner, in 1900 under Ex. A and that the defendants are in possession as successors in title of Manickam Chetty, the mortgagee with possession from Subba Naicks under Ex. B of 1900. It has also been found that the plea of adverse possession raised by defendants is not sustainable as Manickam Chetty was in possession as mortgagee till 1918 and after the sale deed by him of that year only 8 years had elapsed before the suit. In view of these findings the plaintiff was entitled to possession of the property but was bound to redeem the mortgage.

2. The learned Judge's decree for unconditional possession has therefore to be set aside. The respondent-plaintiff asks that he may be given what the District Munsif gave him, a decree for redemption. Although there may have been a formal objection against converting a suit in ejectment to one for redemption if the defendants had been admittedly holding as mortgagee's, yet as the defendants were claiming as purchasers of an absolute interest from a mortgagee the District Munsif gave a decree if the plaint had contained an offer to redeem. The appellants (defendants) submit that in case of redemption they would be entitled to repayment of the amount of a previous hypothecation deed of 1889 Ex. XV111 which Manickam Chetty paid to set aside the Court sale of the property in execution of a decree on that hypothecation. As this point was not taken in the lower Courts whether the appellants are entitled to any such sum and if so how much, will have to be determined after further enquiry. The best course is therefore to remit the following issues, i.e.

(1) Did Manickam Chetty pay any and what amount to avoid a Court sale of the property on Ex. XVIII?

(2) Are the defendants entitled to payment of any or what amount on that account before giving up possession?

3. In compliance with the order contained in the above judgment the Subordinate Judge of Tuticorin submitted the following

* * * * *

4. Issue I. Considering the evidence I feel no hesitation to conclude that Manickam Chetty paid Rs. 716-1-10 in satisfaction of the decree obtained by Arumugam Chetty on his mortgage, dated 20th February, 1898. I find the first issue accordingly.

* * * * *

5. Issue II. I hold that the defendants are not entitled to the payment of any money before surrender of possession as the mortgage concerned in O.S. No. 178 of 1903 is time barred. I find the second issue in the negative.

6. This second appeal coming on for final hearing after the submission of the findings by the Court of the Subordinate Judge of Tuticorin, the Court delivered the following


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