- (1.) THE appellant is the defendant in the suit filed by the respondent in O.S.No.71 of 1983 on the file of the Court of Subordinate Judge, Tirunelveli, seeking the relief of redemption of the mortgage.
(2.) THE trial court on consideration of the evidence adduced by both the parties, dismissed the suit. THErefore, the plaintiff, the respondent herein filed an appeal in A.S.No.49 of 1984 before the Principal District Judge, Tirunelveli, who in turn, decreed the suit granting the relief sought for by setting aside the decree and judgment of the trial court. Challenging the decree and judgment of the lower appellate court, the present second appeal has been filed. The plaintiff's case is this: The plaintiff is the legal heir of one Somasundarathammal to her estate. He was declared as her heir in O.S.No.227 of 1974 on the file of District Munsif's Court, Tirunelveli, under the decree therein. Ex.A-2 is the said decree. The defendant was a party to the decree. On 24.4.1960 under Ex.A-1 the said Somasundarathammal effected a deed of mortgage with possession of the suit properties in favour of the defendant for Rs.3,000 fixing a period of five years for redemption. After execution of the same, the defendant was put in possession of the lands and he was enjoying them in lieu of interest. Then, the plaintiff tiled a suit contending that the othi amount is liable to be scaled down under Tamil Nadu Act IV of 1938 as amended by Act 8 of 1973 and that only a sum of Rs. 1,023.34 as scaled down was due towards the suit mortgage. The plaintiff deposited the said amount and sued the defendant for redemption. Though the defendant did not dispute the truth of the suit mortgage, pleaded that the plaintiff was not entitled to the benefits scaling down under Act IV of 1938 as amended by Act 8 of 1973, as the plaintiff was not an agriculturist. The point for determination in both the courts below was whether the plaintiff is entitled to the benefits of Act IV of 1938 and the decree of redemption as prayed for by him. Mr.Kamalakannan representing Mr.Balachander, the counsel for the appellant, would contend that the well-considered judgment of the trial court has been disturbed by the lower appellate court by wrongly holding that the plaintiff held agricultural lands prior to the date of commencement of the Act IV of 1938 and entitled to the benefit of the said Act, especially when the plaintiff was paying sales tax and profession tax during the relevant period.
(3.) ON the other hand, Mr.Jayasankar, representing Mr.Velusami, the counsel for the respondent, would point out that the decree passed declaring the plaintiff as a legal heir to Somasundarathammal would show that the plaintiff had become the owner of the suit properties on 5.12.1966 itself, that is, on the death of Somasundarathammal and as such, the plaintiff as an agriculturist was certainly entitled to the benefits of the Act IV of 1938 as he was the owner of the agricultural lands as on 1.3.1972. According to the counsel for the respondent, the lower appellate court on consideration of the relevant materials found that the suit filed by the plaintiff is to be decreed in favour of the plaintiff by giving valid reasons. I have given my careful consideration to the submissions of the counsel on either side. There is no dispute that the suit lands were mortgaged with the defendant under Ex.A-1 by Somasundarthammal. It is also not disputed that on the death of the said Somasundarathammal, the plaintiff became the legal heir of her as per the decree passed in O.S.No.227 of 1974 on the file of the District Munsif's Court, Tirunelveli. In this decree the defendant was a party. In the light of the above facts, there is no difficulty in coming to the conclusion that the plaintiff became the owner of the suit properties as a heir of Somasundarthammal on her death on 5.12.1966. So, the benefits under the Act as on 1.3.1972 would definitely accrue to the plaintiff, since he become the agriculturist in the year 1966. ;