Decided on November 03,1952

Anganna Thevan Appellant
Ayyasami Thevan And Anr. Respondents


Chandra Reddi, J. - (1.) THIS second appeal arises out of a suit instituted in the Court of the District Munsif of Tirupur for a declaration that the sale -deed Ex. B -7 executed by defendant 2 on 7 -6 -1945 in favour of defendant 1 is not binding on the plaintiff after defendant 2 lifetime. The plaintiff filed the present suit claiming to be reversioner to the estate of one Kandaswami who died in or about August 1936 and whose estate devolved on his mother, defendant 2. The suit properties were sold for a sum of Rs. 400 in favour of defendant 1. The consideration was made up of Rs. 272 to be paid to the mortgagee Subbakkal under Ex. B -3 dated 14 -6 -1941 for Rs. 200 and Rs. 128 to be paid in discharge of the mortgage, Ex. B -6 dated 15 -4 -1941, both the mortgages having been executed by defendant 2 in discharge of the debts incurred by the last male -holder himself in connection with his marriage. Two promissory notes were executed by Kandaswami one on 9 -5 -1936 for Rs. 200 evidenced by Ex. B -1 in favour of a person called Kandaswami Tevan and another for a sum of Rs. 200 on 25 -5 -1936 evidenced by Ex. B -4 in favour of defendant 1. Defendant 2 executed Ex. B -2 in renewal of Ex. B -1 on 9 -6 -1939 while Ex. B -4 was renewed by her by Ex. B -5 on 15 -6 -1939. It was to discharge the debt due under Ex. B -2 that Ex. B -3, the mortgage in favour of Subbakkal, was executed while Ex. B -6 was executed in favour of Kandaswami Tevan, in discharge of Ex. B -5. The plaint proceeded on the footing that the mortgages in discharge of which the sale -deed Ex. B -7 was executed were nominal and that nothing was really due and payable by Kandaswami the 1st male holder. According to the plaint all these documents were brought into existence with a view to defraud the reversioner.
(2.) THE suit was resisted on the ground that the mortgages were really supported by consideration and the sale -deed brought about for the purpose of discharging the mortgages was a valid and binding one. The trial Court went into the question whether the debts were really in existence during the lifetime of Kandaswami or not and came to the conclusion that the sale -deed Ex. B -7 and the mortgages in discharge of which the sale -deed was executed were fully supported by consideration and the sale -deed Ex. B -7 was binding on the reversion. In the result, the District Munsif dismissed the suit. On appeal by the plaintiff the lower appellate Court while holding that both Ex. B -7 the sale -deed and the mortgages were genuine transactions, reversed the decision of the trial Court as it thought that the major portion of the consideration for Ex. B -7 was in discharge of a time -barred debt. According to the learned District Judge, Ex. B -2 in renewal of Ex. B -1 was executed after Ex. B -1 was time barred and Ex. B -3 the mortgage in favour of Subbakkal was created for the purpose of discharging the time -barred debt evidenced by Ex. B -1. In the opinion of the learned District Judge the mother of the last male holder was under no pious obligation to renew a time -barred debt and therefore Ex. B -3 which was executed for the purpose of discharging the debt, under Ex. B -2 could not bind the reversion and therefore to the extent that the consideration of Ex. B -7 was utilised for the discharge of Ex. B -3, it would not bind the plaintiff. The result was that he decreed the suit subject to payment of Rs. 128 which was the amount paid by defendant 1 to discharge Ex. B -6. Evidently, the learned District Judge, in coming to the conclusion that Ex. B -2 was a renewal of a time -barred debt, relied on the deposition of defendant 3 that on the date on which Ex. B -2 was executed the debt under Ex. B -1 was already barred and that she did not make any payment to the payee towards interest.
(3.) I think the lower appellate Court should not have granted a decree on a point not taken by the plaintiff in the pleadings. It may be stated that it was not pleaded in the plaint that as a portion of the consideration for Ex. B -7 covered a time -barred debt, the sale -deed would not bind the reversion to that extent nor was any issue raised on that question. If the lower appellate Court wanted to base its decision on the question of limitation, in fairness to the parties concerned it ought to have framed an issue whether Ex. B -2 was in renewal of a time -barred debt and sent it back to the trial Court to determine that issue after giving opportunities to both sides to let in evidence on that point. It is not desirable that some stray statements made by the parties in the witness -box should be made the basis of a finding when it had no relation to any issue that was raised in the suit. Since the lower appellate Court has based its decision on the question of limitation without giving an opportunity to the parties concerned to agitate this matter fully in the trial Court, I think I have to ask the trial Court to consider the issue afresh on the material to be placed before it and submit a finding on the question whether Ex. B -2 was in renewal of a time -barred debt. Finding to be submitted within two weeks of the reopening of that Court after summer recess. The parties are at liberty to adduce evidence on this point. Objections, if any, within two weeks thereafter.;

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