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N. Adinarayana Chetty Vs. T.T.K.K. Appan Srirangachariar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad217
AppellantN. Adinarayana Chetty
RespondentT.T.K.K. Appan Srirangachariar and ors.
Cases ReferredRamalingam v. Veerabhadradu
Excerpt:
- - 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. 4. this method of disposing a petition for dispaupering the plaintiff is one that ought to be condemned. ex necessitate rei, a petition like this ought to be dealt with and decided finally before further proceedings in the suit are taken, because the result of dispaupering would be to require the plaintiff to pay court-fee.....pandrang row, j.1. this is an appeal from the decree of the subordinate judge of chittoor dated 14th 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 17th 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.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the subordinate Judge of Chittoor dated 14th 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 17th 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 28th 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.

4. This method of disposing a petition for dispaupering the plaintiff is one that ought to be condemned. Ex necessitate rei, a petition like this ought to be dealt with and decided finally before further proceedings in the suit are taken, because the result of dispaupering would be to require the plaintiff to pay court-fee within the time fixed by the Court, and if court-fee is paid, to proceed with the suit, and if it is not paid, to reject the plaint. The decree passed by the Court below is one which it would not be easy to support if it is found that the order dispaupering the plaintiff was the proper order to make in the circumstances; but, if the order was one which was not proper, any preliminary objection to the decree must disappear. We have considered the merits of the application for dispaupering the plaintiff and looked into the reasons given by the Court below for allowing that petition, and we are satisfied that the order allowing the petition is wrong. The main ground on which the Court below proceeds is that a certain inam village Upparapaliem could have been alienated by the plaintiff subject to the mortgage and that the plain. tiff could have thereby got money to pay court-fee in the present suit. That village is an inam granted for performance of services in the same temple and any attempt to obtain money by selling or mortgaging further this village would have been in vain, for, it is not to be presumed that anyone would be prepared to part with money for property the alienation of which is not permitted by law. In these circumstances, it must be held that there was no ground for coming to the conclusion that the plaintiff was in a position to find money for the purpose of paying the court-fee payable in the present suit on the plaint. The view of the Court below that it was possible for the plaintiff to raise money by alienating the Upparalapaliem village is obviously not tenable in view of its own opinion expressed in the judgment in the suit that an alienation of an inam of this kind would be opposed to public policy. We therefore set aside the order dated 14th August 1936 in I.A. No. 253 of 1935, and the result will be that the plaintiff would-have been entitled to continue the suit in forma pauperis. We may mention in this connexion that it was on this very ground that the cross-objections filed by the plaintiff-respondent were allowed to be filed in forma pauperis.

5. The only point which is agitated in this appeal is that the present suit, regarding it as one for redemption is not maintainable in view of the previous suit for redemption and the decrees made therein. There was a preliminary decree made on 3rd December 1919 (vide Ex. II-a) and the final decree was dated 2Gth September 1921. Apparently, in drawing up the preliminary decree, it was forgotten that the mortgage in question was a usufructuary mortgage and the preliminary decree after providing that an account should be taken of what would be due to the defendant on the mortgage and for costs, and that a commission should be issued for taking the accounts upon the plaintiff's application by 10th December 1919, provided in the last clause that if the amount so due, that is to say, after taking the account and declared by the Court, is not paid within the period fixed by the Court the plaintiff shall be debarred from all rights to redeem the property. It is on this clause of the preliminary decree that reliance is placed by the appellant's advocate in support of his contention that the present suit is not maintainable. The final decree, however, was to the effect that the plaintiff not having deposited the fee to be paid to the Commissioner, the suit be dismissed, the parties-bearing their own costs. The question therefore is whether taking the preliminary and the final decrees together, this is a case in which the mortgage right has been declared to be extinguished or has become extinguished by operation of law. It is conceded on both sides that the law as stated by their Lordships of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar , applies to the present case. The following observations of their Lordships at pp. 566 and 567 apply to the present case also:

The issues decided in the former suit were (1) whether the mortgagors were then entitled to redeem; and (2) the amount then to be paid if redemption then took place. The issues in the present suit are '(1) whether the right to redeem now exists, and (2) the amount now to be paid if redemption now takes place. If it could be said that the old decree involved a decision that the mortgagor's right to redeem was extinguished, that matter would indeed be res judicata, but this very question of the meaning and effect of the old decree arises for consideration under the third point.' - (The third point being that as no payment was made under the old decree, the former suit stood dismissed with the result that the mortgagor's right to redeem became-extinguished under Section 60, T.P. Act, 1882,) - To-that extent the second and third points overlap. It. is sufficient to say in regard to the second point (of res judicata), that if the appellants fail to establish under their third point that the old decree extinguished the right to redeem, there is, in their Lordships' opinion, no grounds for saying that the old decree operated by way of res judicata so as to prevent the Courts, under Section 11, Civil P.C., from trying the present suits.

6. The important question therefore is whether in this case the right to redeem was extinguished by the decrees in the former suit of 1916. It is obvious, and the contrary, is not urged before us, that the final decree does not either in terms or by implication; extinguish the right of redemption. So far as we understand, the last clause of the preliminary decree which is relied upon, we do not take it to mean that there was a present extinction of the right to redeem. That clause merely means that in a certain contingency the right of redemption shall be lost or that the plaintiff shall be barred from redemption. It is more in the nature of a warning than of an actual bar; the provisions of Order 34, Rules 7 and 8, Civil P.C., as they were in 1919, and which were more or less a reproduction of what was contained in Sections 92 and 93, T.P. Act, 1882, require that apart from what is stated in the preliminary decree about debarring the plaintiff from redemption, the final decree also should provide and declare definitely that the plaintiff is so debarred. In other words, the actual extinction of the right to redeem is to be effected only by the final decree, the preliminary decree merely stating the consequences in case a certain payment as fixed by the Court is not made within the time allowed.

7. As observed by their Lordships of the Judicial Committee in Raghunath Singh v. Hansraj Kunwar , the Transfer of Property Act by Section 93 provides a further opportunity for the defendant to obtain this relief, that is to say the relief in regard to the plaintiff's right of redemption. It provides that if payment is not made, the defendant may apply to the Court for an order that the plaintiff and all persons claiming through or under him be debarred absolutely of all right to redeem, and that if he so applies the Court shall pass an order that the plaintiff and all persons claiming through or under him be debarred absolutely of all right to redeem the mortgaged property. The section further enacts:

On the passing of any order under this section the plaintiff's right to redeem and the security shall, as regards the property affected by the order, both be extinguished.

8. In Order 34, Rule 8 which was in force in 1919, the language used is different, but the effect is the same. So far as Sub-rule 2 of Rule 8 is concerned, it is more or less in the same terms, but instead of saying that the right to redeem and the security shall be extinguished Sub-rule 3 of Rule 8 provides that on the passing of the decree under Sub-rule (2) the debt secured by the mortgage shall be deemed to be discharged. It is clear therefore that unless a decree has been passed under Sub-rule (2) of Rule 8, it cannot be said that the mortgage debt was discharged or that the right of redemption was actually lost or extinguished.

9. There has been no such decree in the present case, that is to say, in the previous suit of 1916. We are unable to regard the last clause of the preliminary decree as having the same effect as the final decree contemplated by Sub-rule 2 of Order 34, Rule 8. It is however argued on behalf of the appellant that as the plaintiff in the previous suit failed to deposit the commissioner's fee he cannot be allowed to take advantage of his own default. This is not the real question however, viz., whether the plaintiff in the former suit is to be allowed any advantage by reason of his own default. The question rather is whether this default makes the last clause of the preliminary decree an effective decision to the effect that the plaintiff is debarred from all rights to redeem the property. It must be remembered that this last clause provides that such effect should follow, namely that the right to redeem the property should be lost, only if a certain payment is not made on or before the date fixed by the Court. In this case there has been no determination of the amount by the Court nor any date fixed for payment thereof. It may be that this was not done because the plaintiff in that suit did not deposit the commissioner's fee though we are not prepared to hold that the Court was powerless to have the accounts taken even if the plaintiff in the suit was not prepared to pay the commissioner's fee. We are of opinion that the default in payment of the commissioner's fee cannot be regarded as bringing into effect what was only foreshadowed as a contingency in the last clause of the decree. The default may lay the plaintiff open to some other penalty, for instance, the dismissal of his suit as in this case, but, it is impossible to accept the argument that the default in paying the commissioner's fee would extinguish the right of redemption altogether. This is an inference which we are not prepared to draw in view of the inveterate tendency of Courts of equity to favour the right of redemption. It is clear from what their Lordships of the Judicial Committee have said that unless there is an extinction of the mortgage right or of the right to redeem, there can be no question of a bar by way of res judicata to a second suit for redemption. We therefore accept the finding of the Court below on this point and hold that the right to redeem has not been lost by reason of the decree in the previous suit and that the present suit for redemption is not barred as res judicata. There is no other point arising in the appeal and the appeal is accordingly dismissed with costs.

10. In the memorandum of cross-objections the main point argued is that the plaintiff is entitled to have a declaration to the effect that the mortgage of 1895 is not valid and binding on him and to recover the property free of that mortgage with mesne profits. The contention is that while the alienation of the property is void as being opposed to public policy, nevertheless it was valid as against the mortgagor and became void only after the death of the mortgagor, the plaintiff's paternal uncle in 1932; unless the latter part of the contention is also accepted, it is obvious that defendant 1 has long ago obtained a right by prescription to the mortgage in question. A large number of cases have been quoted as having some bearing on this point. But before dealing with the legal aspect it is desirable that we should ascertain exactly the facts to which the law is to be applied. It is in this connexion that the failure of the Court below to record findings on issues 1 and 2 assumes importance. We have to decide whether in the present case the suit property was a service inam in the sense that the property was attached to a certain office in the temple as emoluments thereof, or whether it was a grant to the ancestor of the plaintiff burdened with the condition that certain services were to be performed. The evidence on this point is furnished by Exs. A, B and C, Exs. B and C being more or less of the same character. A suggestion was made in the course of argument that further opportunity might be given to adduce evidence especially with reference to this point. We are not prepared to accept the suggestion partly because the plaintiff had sufficient and reasonable opportunity of adducing evidence in the case and partly because it is not likely that giving a further opportunity will assist us in coming to a correct decision. It is not complained that any evidence was shut out by the Court below. All that is alleged is that arguments were not fully heard in the sense that some of the issues were not argued. That defect has been amply rectified in this Court, and we do not think that the plaintiff-respondent has suffered in consequence of any omission to argue his case as fully as was necessary in the Court below. After all, in deciding the nature of the grant, one has to rely on the evidence regarding the original grant, and that is before us.

11. Documentary and oral evidence relating to periods long subsequent to the original grant are not likely to be of much use in ascertaining the nature of the original grant. It must be remembered in this connexion that the original grant was made so long ago as 1611 A.D., that is to say over three centuries ago. In construing the nature of a grant of this antiquity it is vain to expect useful assistance from evidence of the manner in which the grant was viewed, say, in the present century, either by the temple authorities or by the inamdars or by anyone else, and that is all the evidence that one can possibly expect in this case over and above the evidence which we have already in the case. Exhibit B which relates to the suit village itself describes the inam as a shrotriem and it purports to have been granted 'for serving as Acharyapurusha in the Tirumalai Tirupathi Devasthanam.' The original grantee is said to have been one Srirangacharlu, the grantor being Rayulu Virapratapa Venkatapathi Maharayalu, Rajah of Chandragiri. The inam was confirmed by the inam commissioner in 1865 on service tenure, that is to say, so long as the service, is rendered in the devasthanam. It was confirmed in the name of the great-grand-son's great-grandson of the original grantee, who bore the same name as the original, grantee, namely Sriranga Charlu. It would' appear that a claim was made on behalf of the inamdar for the continuance of the inam-as a personal grant, but this was disallowed by the inam commissioner. The description of the inam as a shrotriem itself shows the nature of the grant. Reference may be made in this connexion to Seethayya v. Somayajulu ('29) 16 A.I.R. 1929 P.C. 115 in which their Lordships of the Judicial Committee adopted in part the description of 'shrotriem' in Wilson's Glossary as

a grant of lands or a village held at favourable rate, properly an assignment of land or revenue to a Brahmin learned in the Vedas, but latterly applied to similar assignments to native servants of Government, civil or military, and both Hindus and Mohamedans, as a reward for past services.

12. Even otherwise, it is clear from Ex. B that the grant was to the family of the original grantee to be held by that family with hereditary rights subject, to the performance of service in the temple. In short, the grant was to the family and the family was entitled to the village subject only to the performance of service. It does not appear that the temple had any interest or was intended to be given any interest in the property. It was certainly not in any sense of the term an endowment of the temple. We find, the same view was taken of this very grant in Srirangachariar v. Pranatharthiharachariar ('16) 3 A.I.R. 1916 Mad. 331 a case to which the present parties were admittedly parties, the present plaintiff being the plaintiff and the present defendant 1 being one of the defendants. That was no doubt a suit instituted under Section 92, Civil P.C., but it related to this very Acharyapurusha office in the same devasthanam and the grant that was considered in that case was the very grant which is now relied on. It was held in that case by Sir John Wallis C.J., and Srinivasa Ayyangar J., that the lands in question which were granted as inam for the support of officers performing services, such as that of Acharyapurusha, though liable to be resumed for the non-performance of the service, are not held by the grantees on trust for the temple in which the services are to be performed, and that the mere fact that the grantee spent a portion of the income derived from the grant for performing certain festivals in the temple does not show that the original grant was made for the benefit of the grantee as well as of the temple. We have no hesitation in taking the same view of the grant, namely that the grant was to the family and was in no way an endowment of the temple. This is clearly a case of a grant burdened with service. It has been held in ('22) 9 A.I.R. 1922 Mad. 197 which related to a somewhat similar service in a temple, namely swasthivachaka, that an alienation of lands held on this kind of tenure, that is to say, subject to the condition of performing service in a temple, is opposed to public policy and to the nature of the interest affected, that, in other words, the transfer of such inams is opposed not only to public policy but also to the provisions of Section 6(h), T.P. Act. There is no serious dispute so far between the parties.

13. The question remains whether the transfer by means of the mortgage of 1895 in this case was void from its very inception and adverse possession began to run from the date of the alienation not only against the mortgagor but also against the plaintiff. What we have said above as regards the nature of the grant is sufficient to dispose of the contention on behalf of the plaintiff-respondent that his suit so far as it relates to avoiding the mortgage of 1895 is governed by Article 134-B, Limitation Act. This is not a case in which either the plaintiff or his paternal uncle who executed the mortgage can be regarded as manager of the property; nor can the property be regarded as a religious or temple endowment. We are of opinion therefore that Article 134-B does not govern the present suit so far as it relates to a declaration that the mortgage of 1895 is not binding on the plaintiff. The other article that may be said to govern the present suit is Article 144, which according to the appellant is the article applicable, and which is the article relied upon on behalf of the plaintiff-respondent also, in case his contention that Article 134-B, applies is not accepted. This point has been argued from a two fold aspect, first treating the grant as a grant of emoluments and attaching them to an existing office or to an office created at the same time as the grant of the emoluments, and secondly as being given as inam to the family burdened only with the condition of performing services in the temple, there being no office in existence at the time or brought into existence at the time. It is possible-that there may be some theoretical justification for dealing with the question from these two different aspects, but for the purpose of this case it is not necessary to consider the first aspect because we find, so far as the present case is concerned, that this is not a case in which it has been shown that any office was in existence or was brought into existence at the time of the original grant. It is not possible for us to proceed on mere speculation in dealing with this aspect of the case. The mere fact that the plaintiff or his predecessor was described a long time after the grant as an office-holder in the temple would not necessarily show that the; office came into existence either before the original grant or at the time of the original grant.

14. There is no reason to suppose that at the time of the original grant, more than three centuries ago, the grantor came to some-arrangement with the authorities in charge of the temple in order to create an office of this kind, or, if the Rajah was himself the authority in charge of the temple, that he brought into existence the office of Acharyapurusha. In those days it is not likely that the grantor would have taken care to bear the present possibilities in mind, namely the possibilities of litigation like this, or would have perceived the difference between the grant of land burdened with performance of service in a temple and the creation of an office and annexing certain-land as emoluments thereof. These nice, sharp quillets of the law are of comparatively recent origin, and we are not prepared to hold that considerations of this kind were present to the mind of the original grantor at the time of the grant in 1611 A.D. So far as the material before us goes, it shows that the Rajah made a grant of the village to a certain pious Brahmin to be held by him and his descendants subject only to the performance of certain services in the temple, namely of Acharyapurusha. This does not mean that the office of Acharyapurusha was already in existence or was then brought into existence. The description in Ex. A, which is of the year 1801, that is to say nearly two centuries after the original grant, is not of much use in ascertaining whether the original grant was of an office or of an emolument to an existing office. Ex. A merely purports to be a statement of the services to be done in the devasthanam by various persons such as Archakas, Jiyyangarlu, Acharyapurushas, etc. It is possible that these were the actual services done at the time the statement was prepared, that is to say in 1801, but we are not prepared to say that all these services were required when the original grant itself was made in 1611 A.D. It is, however, not necessary for us to decide exactly what services were performed.

15. The point for decision is whether the land was made an appendage, so to say, of the holder of an office. We are unable to say that it was so because we are unable to decide on the material before us whether the office was in existence or was brought into existence at the time of the grant, and did not come into existence till a long time afterwards. The fact that certain services were required to be performed does not mean that the land granted as inam is to be regarded as an emolument attached to an office. No doubt in the case of village service inams it has been held that alienation of such inams, which is prohibited by the special law relating to such service inams, will not avail as against the succeeding office holder in the sense that the possession of the alienee will not be adverse to the latter till he succeeds to the office. The same reasoning cannot be applied to ordinary temple service inams of the present kind. The reasoning is quite different in the case of village service inams. As observed by Varadachariar J., in Ramalingam v. Veerabhadradu : AIR1935Mad914 , Section 28, Limitation Act, will not apply to village service inams, and therefore there is no question of the extinction of a right by prescription. The law relating to village service inams is moreover to be found in special laws such as Madras Hereditary Village Offices Act, 1895, and it would not be justifiable to import those laws when dealing with temple service inams in which the grantee or the holder of the inam is a Hindu joint family and alienation is prohibited on the ground that it is opposed to public policy and contrary to the nature of the interest effected by the transfer. In these cases, the violation of public policy as well as the injury to the interest affected by the transfer are brought about by the transfer itself, and there is no reason why the invalidity should attach itself to the transfer only after the death of the transferor. The transferor himself requires nearly as much protection as his future successor.

16. Public policy requires that even the transferor should not divest himself of the income from the land granted to him as inam subject to the condition of performing services of a public character, and we do not see why in cases of alienations to temple service inams which are void as being opposed to public policy and also to the provisions of Section 6(h), T.P. Act, the transfer should not be regarded as being void from the date of the transfer; so regarded, the possession of the alienee must be deemed to be adverse from that date and it must continue to be adverse. The person who succeeds on the death of the alienor in such a case cannot be said to have acquired then only for the first time a right to the property. Even though he may not claim directly under the transferor, the property is one which was granted to his family, and there is that unity of title which disables the successor from claiming that adverse possession which has once begun to run ceases to affect him till the death of the transferor. We cannot proceed on the assumption that there was an office, and that the plaintiff succeeded to the office which was formerly held by his paternal uncle. The statements in the plaint do not themselves clearly show that this was the case set up by the plaintiff. He describes himself and his uncle as being hereditary office holders in the temple, which appears to show that both were at some time or other holding the office. It follows therefore that the finding of the Court below on this point must be affirmed, namely that defendant 1 has acquired by adverse possession for over 12 years a prescriptive right under the mortgage of 1895, though it was void when it was executed.

17. The only other point raised in the memorandum of cross-objections is that the lower Court ought not to have debarred the plaintiff from having accounts taken from the date of the execution of the mortgage by deciding that the accounts should be taken as settled as endorsed on the suit mortgage and also declaring that an account should be taken on the basis of the yearly accounts filed by defendant 1 in the former suit. These directions apparently were made by the Court below in view of its opinion that the finding in the previous suit that the mortgage was valid and binding is res judicata for the purpose of the present suit. We have, however, expressed the opinion already that the decree in the previous suit does in no way constitute res judicata so far as the present suit is concerned, because the previous suit related to the right of redemption at the time and the amount due at the time under the mortgage, whereas the present suit for redemption has reference to the right of redemption at the present time and the amount due at present. These directions will therefore be deleted and the accounts will be taken by the Commissioner from the date of the mortgage, subject to all just exceptions. Clause 1 of the ipreliminary decree will be amended accordingly, and the decree will be drawn up in Form No. 7-A of App. D, Civil P.C. In other respects, the memorandum of cross-objections is dismissed with costs. The plaintiff shall pay the court-fee payable on the plaint and on the memorandum of cross-objections.

18. C.M.P. No. 154 of 1939. - The application of the plaintiff-respondent under Section 19 of Madras Act, 4 of 1938 to scale down the mortgage debt will be remitted to the Court below for disposal according to law and the final decree to be passed by the Court below in the suit will be subject to the final orders on the application.


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