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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.SOUNTHAR
Saroja – Appellant
Versus
Thiagarajan – Respondent
JUDGMENT :
S. SOUNTHAR, J.
1. The third defendant, who is the daughter of the plaintiff and who was transposed as appellant in the first appeal in the place of the deceased plaintiff, is the appellant herein. The suit is for declaration of title and possession of the plaintiff over the suit property and for consequential injunction restraining the defendants from interfering with the plaintiff's possession over the suit property. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the appellant has come by way of this Second Appeal.
2. According to the plaintiff, the suit property originally belonged to one Sudalaimadan Nadar and after his death, the property was inherited by his three sons, namely, Kuttikan Nadar, Thangiah Nadar and Chelliah Nadar. The said three persons have mortgaged the suit property in favour of the plaintiff, Chellamma Nadachi under usufructuary mortgage deed, Ex-A1, dated 23.11.1945. Thus, the plaintiff has been in possession and enjoyment of the property from the date of mortgage. Subsequently, the first defendant in the suit Thanka Nadachi, wife of Chel
The rights of a usufructuary mortgagee do not crystallize into a title without payment of the mortgage debt; thus, a suit for declaration is unsustainable once the right to redeem is extinguished.
In a usufructuary mortgage, the right to redeem does not extinguish after 30 years; it arises only upon payment of the mortgage money.
The central legal point established in the judgment is the requirement to prove possession in a claim for permanent injunction and the implications of Section 78 of the Transfer of Property Act on th....
The plaintiffs' suit was barred by law of limitation and estoppel, and the substantial questions of law raised by the plaintiffs were rejected.
A usufructuary mortgagor can redeem the mortgage at any time; the right is not extinguished by the passage of 30 years, as affirmed by the Supreme Court.
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