Burden of proof is on plaintiff to show that suit was instituted within time.

This second appeal has been filed by the defendant in 0. S. No. 452 of 1988 against the judgment and decree dated 31.3.1995 made in A.S. No. 70 of 1991 by the Subordinate Judge, Tindivanam, confirming the judgment and decree dated 19.3.1991 made in O.S. No. 452 of 1988 by the District Munsif, Tindivanam.

2. The brief case of the respondent/plaintiff is as follows:

a. The defendant after the execution of the mortgage deed on 9.7.1973 received a sum of Rs.3000/- from the wife of the first plaintiff.

b. After the execution of the same, the wife of the first plaintiff Rukmaniammal passed away. Since the first plaintiff has no issues through the said Rukmaniammal, he adopted the second plaintiff as his son. When he became old and felt that he would not survive for a longer period, he executed a Will under Exhibit A-1 in favour of the second plaintiff bequeathing all properties in his favour.

c. Since the defendant failed to repay the said amount to the first plaintiff, he instituted the suit for the recovery of the amount of a sum of Rs.6739/-. Pending the suit the said Varadha Reddiar died. Thereafter, the adopted son was impleaded as second plaintiff in the suit. The suit was filed on 5.4.1988. The defendant received not less than Rs.10,000/- per annum as income through agriculture. Therefore, as per the Acts 31/76, 13/80, and 50/80, the defendant is not entitled to get any benefits. Since the defendant is an agriculturist and after passing the moratorium period, the plaintiff filed the suit. The suit filed by the plaintiff was in time. It is not barred by limitation.

3. Denying the averments made in the plaint the defendant filed his written statement.

4. Based on the oral and documentary evidence, the suit was decreed by the trial Court and the same was confirmed by the lower appellate Court. Hence, the present second appeal by the defendant.

5. The second appeal was admitted on the following substantial questions of law:

a. Whether the Courts below should not have dismissed the suit as time barred especially when it is filed beyond the time prescribed under the law of limitation.

b. Whether the Courts below should not have seen that the respondent has not explained the reason for the exclusion of the period which in law he is bound to and whether the learned Judges were right in not following the decision of the Madras High Court in 1987 TNLJ 151 and Prabhakar and Company v. V. Subramaniam 1989 (1) LW 555 (DB)?

c. Whether the Courts below should not have seen that the respondent had failed to prove the mortgage and the Will and whether the Courts below should not have dismissed the suit for want of due execution of the documents?

d. Whether the judgment of the Courts below is not liable to be set aside on such other substantial questions of law as this Hon'ble Court deem fit to frame and decide?

6. Heard both sides.

7. The learned counsel appearing for the appellant/defendant would vehemently contend that since the suit has been filed on 5.4.1988, the suit is barred by limitation. The said suit should have been filed on or before 9.7.1985. Since the said suit was filed after the expiry of the limitation period, the suit for the recovery money on the basis of mortgage deed is not at all maintainable and therefore, the judgment and decree passed by the learned District Munsif and also the confirmation of the same by the Subordinate Judge are not maintainable.

8. The learned counsel would point out that no plea has been raised for exclusion of moratorium period for the purpose of limitation stating the periods specifically either in the plaint or in the subsequent proceedings.

9. In the absence of any such specific plea for claiming the exclusion of moratorium period, the plaintiff is not entitled to have benefit of limitation.

10. When the plaintiff has not specifically established the limitation point the suit itself is not maintainable and ought to have been dismissed on this ground alone.

11. The first and primary duty of the plai