IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 9-06-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.769 of 2007 Ekanathasamidurai .. Appellant/2nd Defendant/2nd Respondent Versus 1.Periyasamidurai Patchala Nainar 2.Duraiappadurai 3.Anavaradharajadurai 4.Dharmalinga Padayachi .. Respondents PRAYER: Appeal against the judgment and decree, dated 10.01.2007, made in A.S.No.10 of 2006, on the file of the Subordinate Judge, Panruti, reversing the judgment and decree, dated 27.01.2006, made in O.S.No.421 of 1995, on the file of the District Munsif, Panruti dated 27.01.2006. For Appellant : Mr.R.Gururaj For Respondents : Mr.C.Chinnasamy Senior Advocate for Mr.Haja Mohideen Gisti No Appearance (R2 & R3) J U D G E M E N T This second appeal has been filed against the judgment and decree of the Subordinate Judge, Panruti, dated 10.01.2007, made in A.S.No.10 of 2006, reversing the judgment and decree of the District Munsif, Panruti, made in O.S.No.421 of 1995, dated 27.01.2006. 2. For the sake of convenience, the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.421 of 1995. 3. The appellant in the present second appeal was the second defendant in the suit in O.S.No.421 of 1995 and the second respondent in the first appeal in A.S.No.10 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief facts of the case as stated in the plaint are as follows: The suit property had been mortgaged by the plaintiffs to the first defendant, on 7.8.1965, for a sum of Rs.600/-. Since then, he has been in enjoyment of the suit property. The first defendant has been in enjoyment of the suit property for more than 10 years. Thus, the mortgage would be deemed to have been redeemed under the Tamil Nadu Debt Relief Act 40 of 1979. The plaintiffs are agriculturists. Further, the plaintiffs are entitled to the benefits of the Tamil Nadu Act 4/38, as amended by Act 8/73. However, in case it is found by the Court that the plaintiffs are liable to pay a certain amount they are prepared to do so in order to discharge their liability. The suit has been filed since the first defendant was not prepared to settle the mortgage in spite of repeated requests made by the plaintiffs and in spite of the notice, dated 25.3.1995, being issued. The present suit has been filed within the period of limitation, since the filing of the suit had been prohibited from 16.01.1975 till 18.5.1979 by the provisions of the Tamil Nadu Debt Relief Act, 10 of 1975 and Section 34 of Act 40 of 1979. Based on the petition filed by the second defendant, he has been impleaded in the suit. In such circumstances, the plaintiffs have filed the suit for redemption of mortgage and for the consequential reliefs. 5. In the written statement filed on behalf of the first defendant, the claims made by the plaintiffs have been denied. It has been stated that the plaintiffs are not agriculturists as contemplated by Acts 40 of 1979, 8 of 1973 and 4 of 1938. The plaintiffs are hailing from a royal family and they are owning large extent of lands. They are also income tax assessees and therefore, they are not entitled to the benefits of the Debt Relief Acts. Since the plaintiffs have accepted to pay the amount as fixed by this Court the present suit is not maintainable as the plaintiffs ought to have deposited the amount at the time of the filing of the suit. Further, the plaintiffs are not entitled to extension of limitation period as claimed by them, since they are not agriculturists as contemplated by law. The plaintiffs are liable to pay Court fee for the entire mortgage amount. Since the Court fees had been paid only for 1/4th the amount, the suit is liable to be dismissed. Since, there is no cause of action for the plaintiffs to file the suit they are not entitled to the reliefs prayed for by them. 6. In the written statement filed on behalf of the second defendant, it has been stated that the suit filed by the plaintiffs cannot be sustained and therefore, it has to be dismissed with costs. Since the plaintiffs have no right to the suit property they cannot pray for the relief of redemption as prayed for in the suit. They are not entitled to claim the benefits of the Act 40 of 1979. The suit property and other properties had originally belonged to one Muthu Thandava Batchala Nainar, who is the father of the first plaintiff and the second defendant. He had filed a suit in O.S.No.513 of 1980, on the file of the District Munsif Court, Cuddalore, against the first plaintiff praying for the relief of declaration and interim injunction with regard to the suit property and other properties. In https://hcservices.ecourts.gov.in/hcservices/ the said suit, it was claimed that he had attained the suit properties by his own earnings. In the said suit, it was held that the properties were his individual properties. The judgment and decree passed by the District Munsif Court, Cuddalore, had not been appealed against and therefore, it had become final. 7. Since the plaintiffs’ possession with regard to the suit properties was not proved, the relief of interim injunction had not been granted. The father of the second defendant had executed a registered Will, dated 14.10.1979. It was his last Will and testament, executed with full knowledge of his action. The second defendant's father died, on 12.7.1989. Thereafter, the suit property and some other properties belonged to the second defendant. Since then the second defendant has exclusive title over the suit property. Thus, the plaintiffs have no right or title or possession in the suit property. In such circumstances, they had no right to mortgage the suit property. The second defendant had filed O.S.No.684 of 1989, for the relief of declaration and recovery of possession. In the said suit, the second defendant has mentioned about the Will. After a full trial, the Will had been accepted. Thereafter, an appeal had been filed by the first defendant in the said suit in A.S.No.17 of 1994, before the Sub Court, Cuddalore. The appeal had been dismissed. No second appeal had been filed thereafter. Thus, the Will stands accepted and it is not open to the plaintiffs to reopen the issue relating to the validity of the Will. 8. The plaintiffs are also prevented by the principle of res judicata to file the present suit. The appeal filed by the second defendant had also been dismissed. However, the suit property in the present suit was not forming a part of the properties in question in O.S.No.684 of 1989, on the file of the District Munsif Court, Panruti. Therefore, the plaintiffs had no right in the property under mortgage. Thus, the plaintiffs have no right to determine the mortgage and to get the benefit. The second defendant is entitled to the benefits under Act 40 of 1979. Thus, the plaintiffs are estopped to claim the reliefs under the present suit and it is also bad in law based on the principle of res judicata. Since the second defendant had paid the entire Court fees due, the suit filed by the plaintiffs is to be dismissed and a declaration has to be issued by the Court declaring that there is no mortgage amount due to be paid by the second defendant and the possession of the suit property is to be given to the second defendant after redeeming the mortgage. 9. In the additional written statement filed on behalf of the second defendant, before the Sub Court, Cuddalore, in A.S.No.53 of 1994, the First Appellate Court had also accepted the Will and declared the title of the second defendant in the suit property. However, the appeal had been dismissed on the basis of adverse possession. Therefore, the second defendant had appealed before this Court in S.A.No.299 of 2003. The second defendant had also filed another suit in O.S.No.690 of 1989 with regard to another property under mortgage based on the same Will. The first plaintiff in the present suit had filed an appeal on the file of the Sub Court, https://hcservices.ecourts.gov.in/hcservices/ Cuddalore, in A.S.No.17 of 1994. The said appeal had been dismissed. Therefore, the first plaintiff had filed a second appeal before this Court in S.A.No.918 of 1998 and S.A.No.919 of 1998. The second appeal filed by the second defendant in S.A.No.299 of 2003 had been allowed and the two appeals filed by the first plaintiff in S.A.No.918 and 919 of 1998 had been dismissed. Therefore, all the Courts had found the Will to be valid. The first plaintiff had filed Special Leave Petitions before the Supreme Court in S.L.P.Nos.18251, 18252 and 18253 of 2003. All the Special Leave Petitions were dismissed by the Supreme Court, on 13.10.2003. The review petition filed was dismissed, on 13.02.2004. Therefore, the plaintiffs are prevented from raising the issue with regard to the Will based on the principle of res judicata. Thus, it is only the second defendant who is entitled to redemption of the property under mortgage. 10. Based on the pleadings of the plaintiffs as well as the defendants, the trial Court had framed the following issues for consideration: i) Whether the plaintiffs are entitled to the reliefs prayed for by them? ii) Whether the averment in the written statement that the correct Court fee had not been paid in the suit is right. iii) Whether the averment in the written statement that there is no cause of action for the suit is correct. iv) Whether the plaintiffs are entitled to mesne profits? 11) The additional issues framed by the trial Court are as follows: i) Whether the plaintiff is estopped from raising the issue regarding the Will, dated 14.10.1979. ii) Whether the second defendant is entitled to the claim of recovery of possession? 12. Based on the evidence available, the trial Court had come to the conclusion that the plaintiffs are not entitled to the reliefs as prayed for by them, since they do not have title to the suit property. Since the various Courts of law had held the Will, dated 14.10.1979, to be valid, the plaintiffs cannot pray for the relief of redemption of the suit property and for recovery of possession and for mesne profits. 13. Aggrieved by the judgment and decree of the trial Court, dated 27.01.2006, an appeal had been filed by the plaintiff in A.S.No.10 of 2006, on the file of the Sub Court, Panruti. 14. The First Appellate Court had framed the following points for consideration: i) Whether the appellants/plaintiffs are entitled to the preliminary decree as claimed by them as they are not liable to pay any amount to redeem the mortgage in view of the Tamilnadu Debt Relief Act 40 of 1979 and for the https://hcservices.ecourts.gov.in/hcservices/ consequential relief of recovery of possession? ii) Whether the second defendant is entitled to a declaration of title by adverse possession and for recovery of possession from the first defendant as claimed in his counter claim? iii) Whether the appeal is to be allowed? 15. The First Appellate Court had held that since the defendants were in enjoyment of the suit property for more than 10 years, the plaintiffs are entitled for redemption of mortgage in accordance with the provisions of the Tamilnadu Debt Relief Act 40 of 1979. Further, there is nothing to show that the plaintiffs are dis-entitled to the relief under the Tamilnadu Debt Relief Act 40 of 1979, since the defendants have not been in a position to show that the plaintiffs have been paying the agricultural tax as alleged by the defendants. It was also held that the declaration of title in favour of the second defendant, based on the Will, dated 14.10.1979, in O.S.No.684 of 1989 and O.S.No.690 of 1989 was not in relation to the suit property. In such circumstances, the First Appellate Court had declined to grant the reliefs sought for by the plaintiffs. On the other hand, the reliefs sought for by the plaintiffs had been granted as prayed for in the suit. 16. Aggrieved by the said judgment and decree of the First Appellate Court, dated 10.01.2007, made in A.S.No.10 of 2006, on the file of the Sub Court, Panruti, the present second appeal has been filed, raising the following substantial questions of law: 1) Whether the judgment and decree in O.S.No.684 of 1989 upholding the Will dated 10.10.1979 is not a judgment in rem? 2) Whether the judgment and decree in O.S.No.684 of 1989 do not constitute res judicata? 3) Whether the judgment and decree in O.S.No.513 of 1980 do not constitute res judicata? 4) Whether the genuineness of a holograph Will can be questioned? 5) Whether the plaintiff's appeal is not barred by res judicata in as much as only one appeal has been filed against the suit and not against the counter-claim? 17. The second appeal has been filed by the second defendant in the suit stating that the lower Appellate Court had not framed proper issues for consideration and that it had not appreciated the legal position arising in the case properly. It is also contended by the learned counsel for the appellant that the lower Appellate Court had failed to see that the judgment and decree in O.S.No.684 of 1989, upholding the Will is a judgment in rem. It was also contended that the lower Appellate Court had not accepted the contentions of the second defendant with regard to the principle of res judicata, arising in view of the judgment and decree in the suit in O.S.No.684 of 1989 and O.S.No.513 of 1980. It was also contended that the Will is a holograph Will and that the plaintiff should have filed two appeals against the judgment and decree in the suit O.S.No.421 of https://hcservices.ecourts.gov.in/hcservices/ 1995, dated 27.01.2006 and against the counter claim allowed in favour of the second defendant. Further, the lower Appellate Court had failed to see that in pursuance of the decree in the counter claim the appellant had taken delivery of the suit property. 18. Considering the rival contentions of the parties concerned and in view of the records available, this Court is of the considered view that the First Appellate Court had erred in reversing the well considered judgment and decree of the trial Court, dated 27.01.2006, made in O.S.No.421 of 1995. 19. On analysing the averments made on behalf of the plaintiffs as well as the defendants and the evidence adduced on behalf of the plaintiffs as well as the defendants, the trial Court had held that the plaintiffs do not have title to the suit property to claim the reliefs prayed for in the suit. It was further held that the plaintiff is not entitled to the benefits of the Tamil Nadu Debt Relief Act, 1979, as it was found that the plaintiff was paying Agricultural Income Tax. On the other hand, the trial Court had found that the second defendant is entitled to the suit property by way of a Will, dated 14.10.1979, executed by his father. After the death of the second defendant's father, on 12.07.1989, the suit property belonged to the second defendant. Therefore, the plaintiffs have no right to the suit property as claimed by them and that the first plaintiff has no right to mortgage the suit property to the first defendant. Further, in view of the decision in O.S.No.684 of 1989 and O.S.No.690 of 1989, with regard to the Will executed by Muthu Thandava Batchala Nainar in favour of his son Ekanathasamidurai, who is the second defendant in the suit in O.S.No.421 of 1995 and the decision in the appeals filed thereon in A.S.No.53 and 17 of 1994 and second appeals in S.A.No.918 and 919 of 1998, decided by this Court, on 14.05.2003, the trial Court had come to the conclusion that the suit property belonged to the second defendant contrary to the claims made by the first plaintiff. 20. Further, the trial Court had held that the counter claim made by the second defendant for redemption of the suit property from the first defendant is sustainable in law. It is found that the second defendant is entitled to redeem the usufructuary mortgage in respect of the suit property, as he is entitled to claim the benefits of the Tamil Nadu Debt Relief Act 40 of 1979, from the first defendant who has been in enjoyment of the same for more than 10 years and that no amount is due and payable from the second defendant in order to redeem the mortgage. 21. In such view of the matter, this Court is of the considered view that the trial Court has arrived at the right conclusion in declining to grant the reliefs prayed for by the plaintiffs and in allowing the counter claim made by the second defendant in the suit. Thus, the substantial questions of law arisen for consideration are answered in favour of the appellants. Accordingly, the judgment and decree of the first Appellate Court, dated 10.01.2007, made in A.S.No.10 of 2006, reversing the judgment and decree of the trial https://hcservices.ecourts.gov.in/hcservices/ Court, dated 27.01.2006, made in O.S.No.421 of 1995 is set aside. Accordingly, the second appeal stands allowed. No costs. Consequently, M.P.No.1 of 2007 is closed. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar csh To 1.The District Munsif, Panruti. 2.The Subordinate Judge, Panruti. 3.The Section Officer, VR Section, High Court, Madras. + 2 cc to Mr.R.Gururaj Advocate SR No.28299 S.A.No.769 of 2007 KJ(CO) JJM(10.07.08) https://hcservices.ecourts.gov.in/hcservices/