- (1.)The plaintiff in O. S. No. 535/80 on the file of the District Munsif, Tenkasi, filed the second appeal. Pending second appeal he died and his legal representatives have come on record as appellants 2 to 8.
(2.)The first appellant filed the suit for redemption of a mortgage executed by himself and his father one Muthukrishna Naidu on 12-12-1969 under the original of Ex. A-1 in the suit. The property mortgaged was situate in the Fourth Ward in Tenkasi Municipality in S. No. 356/1A1A measuring 31/4 cents in the northern portion. According to the plaintiff, possession also was given to the first defendant, (who died pending suit and his legal representatives were brought on record as defendants 2 to 5). The second defendant is the fourth respondent in the appeal and defendants 3 to 5 are respondents 1 to 3 in the second appeal. On the same day Ex. A-1 was entered into, there was an agreement between the parties evidenced by Ex. A-4, as per the terms of which the first defendant agreed to deliver the property when the plaintiff paid the principal amount. It was the further case of the plaintiff that in spite of repeated demands, the first defendant refused to receive the principal amount and to deliver the mortgaged property to the plaintiff. A notice under the original of Ex. A-10 was issued to the first defendant, which provoked a reply under Ex. A-11 dated 4-5-1977 stating that the first defendant had constructed a permanent building in the mortgaged property and he was entitled to the benefits of the Tamil Nadu City Tenants Protection Act (hereinafter referred to as the Act). The first defendant was not entitled to the benefits of the Act, but the plaintiff and his father had put up a thatched shed in an extent of one cent, which shed rested on a common wall on the west, that a mud wall was put up and on the south wooden planks were put up. The premises were given number as Door No. 16-E and the same was registered in the name of the plaintiff's father in the Municipal Records. The first defendant had taken possession of the shed on rent on 13-4-1968 as per Ex. A-15. The first defendant had removed the thatched roof without the consent of the plaintiff and put up an asbestos roof. The first defendant had also assigned the mortgage debt to his mother, the second defendant in the suit. The amount of Rs. 2500/- due under the mortgage had also been deposited in Court.2-A. The first defendant filed a written statement contending inter alia as follows :The vacant land originally belonged to the plaintiff and his father. The first defendant took the vacant site in the year 1965 on a monthly rent of Rs. 15/-. In 1968 a building was put up in the northern portion of the suit property. In 1971 the first defendant submitted a plan for approval to the Municipality for construction of a new building. His name was also registered in the Municipality as the owner of the premises. He himself obtained electricity connection in his own name. He had been paying the taxes for the building and he had been running a business there. The first defendant was a tenant in respect of the vacant site. It was true that the mortgage deed was executed on 12-12-1969 for Rs. 2500/- by the plaintiff and his father. It was not true that the first defendant was in possession of the entire land in lieu of interest towards the mortgage debt. The plaintiff had suppressed the fact that the first defendant had been in possession of the property as a tenant even prior to 12-12-1969. The first defendant had assigned the mortgage on 17-7-1974 under the original of Ex. A-9 to the second defendant, his mother, and he had been paying the rent to the second defendant. The agreement Ex. A-4 was not valid in law and was not admissible in evidence. What was agreed between the parties was that the interest due on the mortgage was to be adjusted in the rent payable by the first defendant to the plaintiff. The first defendant had put up a permanent building and he was entitled to the benefits of the Act.
(3.)The second defendant filed a written statement disputing Ex. A-4 agreement and also stating that she had not received any interest from the first defendant after 17-7-1974, the date of assignment in her favour under the original of Ex. A-9. The suit was bad for non-joinder of parties.