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Madras High Court
KAILASAM,VARADARAJAN
Esakki Palpu - Appellant
Versus
Cherian Kochan - Respondent
Decided On : 07/24/1974
LIMITATION ACT - SECTION 18(1) - ACKNOWLEDGMENT OF LIABILITY - REQUIREMENTS - MORTGAGE - PROOF OF DATE OF MORTGAGE - BURDEN OF PROOF.
Fact of the Case:
Plaintiffs filed a suit for declaration of their title to S. No. 293, alleging that Chemban Mallan executed a vellola mortgage over S. No. 293 in favor of Devi Badrakali, who assigned it to Boothathan Poonan Perumal, the ancestor of Padmanabhan Ooli and Ponnan Cherian. The defendants denied the mortgage and contended that Maya Konda Narayanan executed a mortgage and kuzhikanam in favor of Ponnan Perumal for fanams 1100 on 11-8-1131 M. E. The trial court found that the appellants have title to one acre 7 cents, the extent of S. No. 294 and are entitled to declaration and redemption as prayed for. The District Court confirmed the trial court's decree. On appeal, the High Court remanded the appeal to the lower court for fresh disposal on the point of limitation, retaining the finding as to title. After remand, the learned District Judge found that the mortgage acknowledged in Ex. P-2 is not the same as the one sought to be redeemed in the plaint and that the date of the mortgage was not proved, and allowed the appeal with costs and dismissed the suit.
Finding of the Court:
The appellants failed to prove the date of the mortgage. The mortgage mentioned in the plaint is one for 253 fanams in respect of S. No. 293 by Chemban Mallan, who was admittedly the owner of that property in favor of one Devi Badrakali who is alleged to have assigned that mortgage in favor of Boothathan Ponnan Perumal. The mortgage mentioned in the written statement of the second respondent, which was adopted by the fourth respondent, is one by Mayakonda Narayanan in favor of Boothathan Ponmam Perumal in respect of S. No. 293 for 1100 fanams on 11-8-1131 M.E. The statements made before the settlement authorities by the predecessors-in-interest of the respondents in that the mortgage was executed by Chemban Mallan on 11-8-1031 M.E. in favor of Boothathan Poonan Perumal for 1100 fanams. But Esakki Padmanabhan, the predecessor of the appellants had stated in his statement made on 1st Thulam 1073 M. E. before the settlement authorities that Chemban Mallan had not executed the othi in favor of Boothathan Perumal but had executed the othi only in favor of Devi Badrakali and she had executed a othi Vayoli (assignment) in favor of Boothathan Ponnan Perumal and that the assignee's heirs, Padmanabhan Ooli and Ponnan Perumal Cheriyan, are enjoying the property in pursuance of that assignment. Therefore, it is clear that the mortgage admitted in the settlement enquiries was one dated 11-8-1031 M. E., for 1100 fanams by Chemban Mallan in favor of Boothathan Ponnan Perumal directly, whereas the mortgage mentioned in the plaint in the present suit as well as in the statement of the appellant's predecessor-in-interest in the settlement enquiries was one by Chemban Mallan in favor of Devi Badrakali and she had executed a othi Vayoli (assignment) in favor of Boothathan Ponman Perumal. What had been acknowledged is not the same as what has been pleaded by the appellants in their plaint. Therefore, none of the statements of the predecessors-in-interest of the respondents would amount to a valid acknowledgment under Section 18 (1) of the Limitation Act, 1963, corresponding to old Section 19.
Issues: 1. Whether the appellants have proved the date of the mortgage? 2. Whether the acknowledgment relied upon by the appellants is in respect of the suit mortgage? 3. Whether the acknowledgment has been made within the period of limitation?
Ratio Decidendi: 1. The burden of proving the date of the mortgage and that the acknowledgment relied upon is in respect of the suit mortgage and that it has been made within the period of limitation is on the appellants. 2. The appellants have failed to prove the date of the mortgage. 3. The mortgage mentioned in the plaint is one for 253 fanams in respect of S. No. 293 by Chemban Mallan, who was admittedly the owner of that property in favor of one Devi Badrakali who is alleged to have assigned that mortgage in favor of Boothathan Ponnan Perumal. The mortgage mentioned in the written statement of the second respondent, which was adopted by the fourth respondent, is one by Mayakonda Narayanan in favor of Boothathan Ponmam Perumal in respect of S. No. 293 for 1100 fanams on 11-8-1131 M.E. 4. The statements made before the settlement authorities by the predecessors-in-interest of the respondents in that the mortgage was executed by Chemban Mallan on 11-8-1031 M.E. in favor of Boothathan Poonan Perumal for 1100 fanams. But Esakki Padmanabhan, the predecessor of the appellants had stated in his statement made on 1st Thulam 1073 M. E. before the settlement authorities that Chemban Mallan had not executed the othi in favor of Boothathan Perumal but had executed the othi only in favor of Devi Badrakali and she had executed a othi Vayoli (assignment) in favor of Boothathan Ponnan Perumal and that the assignee's heirs, Padmanabhan Ooli and Ponnan Perumal Cheriyan, are enjoying the property in pursuance of that assignment. 5. Therefore, it is clear that the mortgage admitted in the settlement enquiries was one dated 11-8-1031 M. E., for 1100 fanams by Chemban Mallan in favor of Boothathan Ponnan Perumal directly, whereas the mortgage mentioned in the plaint in the present suit as well as in the statement of the appellant's predecessor-in-interest in the settlement enquiries was one by Chemban Mallan in favor of Devi Badrakali and she had executed a othi Vayoli (assignment) in favor of Boothathan Ponman Perumal. What had been acknowledged is not the same as what has been pleaded by the appellants in their plaint. Therefore, none of the statements of the predecessors-in-interest of the respondents would amount to a valid acknowledgment under Section 18 (1) of the Limitation Act, 1963, corresponding to old Section 19.
Final Decision: The Letters Patent Appeal is dismissed with costs.
VARADARAJAN, J. :- The appellants in this Letters Patent Appeal are the plaintiffs in O. S. 349 of 1956 on the file of the District Munsif Court, Kuzhithurai. They filed that suit for declaration of their title to S. No. 293 which is the northern half of Naduvalaporayidom in Lekkom 455, the total extent of which is said to be 4 acres 29 cents. Their case was that the entire lekkom 455 originally belonged to Chemban Mallan and Raman Narayanan. In the settlement the northern half belonging to Chemban Mallan became S. No. 293 and the southern half belonging to Raman Narayanan became S. No. 294. The appellants alleged that Chemban Mallan executed a vellola mortgage or othi over S. No. 293 in favour of one Devi Badrakali for fanams 253. Devi Badrakali assigned that mortgage in favour of one Boothathan Poonan Perumal, the ancestor of Padmanabhan Ooli and Ponnan Cherian. Padmanabhan Ooli and Ponnan Cherian were in possesion of S. No. 293. Chemban Mallan executed a chora othi, which is an irredeemable mortgage amounting to a sale, in respect of S. No. 293 in favour of one Esaki Padmanabhan on 22-11-1050 M. E. and conveyed the Jenmom right in the land. Esakki Padmanabhan died leaving behind three sons, Esakki, Ummini and Marthandam.
The first appellant is the son of Esakki and father of appellants 2 and 3. The 4th appellant is the son of Ummini. Appellants 5 and 6 are the sons of Marthandan. The first respondent and the second respondent's father are the sons of Ponnan Cherian. Padmanabhan Ooli's half share in the mortgage right had been gifted to his sons under a gift deed and has devolved upon his grand sons, respondents 3 and 4. Respondents 1 to 4 were in possession of S. No. 293. Respondents 5 and 6 are the legal representatives of the first respondent. Respondents 7 and 8 are the legal representatives of the second respondent. The appellants expressed their willingness to deposit Rs. 36.94 said to be due under the othi and Rs. 7 on account of improvements effected to the property.
2. The second respondent denied that there was any mortgage in favour of Devi Badrakali and contended that one Maya Konda Narayanan executed a mortgage and kuzhikanam in favour of one Ponnan Perumal for fanams 1100 on 11-8-1131 M. E. The extent of S. No. 293 is 2 acres 2 cents. After the death of Ponnan Perumal his sons Padmanabhan Ooli and Ponnan Cherian came into possession and after them, their legal representatives, respondents 1 to 4 were in possession. Esaki Padmanabhan had no jenmam right in the property and O. S. 280 of 1957 M. E. filed by him against Padmanabhan Ooli and Ponnan Cherian on the basis of a chora othi has been dismissed.
3. The trial court framed issues regarding the extent of S. No. 293 and other matters and found that the extent was 2 acres and 4 cents according to the settlement, 1 acre 2 cents according to the settlement register and 1 acre 7 cents on the land, Ex. P-2, the statement of Padmanabhan Ooli and Ponnan Perumal made on the settlement enquiry on 20-12-1079 M. E. in settlement of case No. 119 of Kunnathur village is part of the settlement records Ex. P-1. Padmanabhan Ooli has stated in his statement dated 2-4-1069 -
"I agree to patta being issued to Kumaran Cheriyan for 294 as he is in enjoyment of the share of the thandapar holder Raman Narayanan. The one half in 293 in the name of Chemban Mallan is enjoyed by me and Ponnan Perumal Cheriyan. On 11-8-1031 Chemban Mallan executed a vollodi othi and Kuzhikanam for 1100 fanams in the name of Ponnan Perumal who was my grand-father and father of Ponnan Perumal Cheriyan. Accordingly, Boothathan Ponnan Perumal was enjoying the property. On his death I and Ponnan Perumal are in enjoyment as heirs of Boothathan Ponnan Perumal and are paying tax...Since Chemban Mallan who is the thandapar holder of one half and who had executed the othi and had no direct heirs the jenmam right has devolved on me, Ponnan Perumal Cherian and others....Apart from me and the persons mentioned i
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