Neelakantan Namboori v. Paily — 1954 DIGILAW 1 (KER)

Judgment :- 1. These Second Appeals arise out of a suit to redeem a mortgage of the year 1060. The defendant contended that the transaction under which he was in possession of the property was not a mortgage but an irredeemable kanom and that the suit was barred by limitation. He also disputed the rate of mesne profits claimed by the plaintiff. The trial court repelled his contentions and gave a decree to the plaintiff particularly in terms of the plaint. The lower appellate court repelled the defendant's contention that the tenure was irredeemable and that the suit was barred by limitation. So far as mesne profits were concerned, it modified the trial court's decree and allowed the plaintiff to recover mesne profits only from the date of its decree. S.A. No. 189 of 1950 is filed by defendant against the decree given to the plaintiff, and S.A. No. 160 of 1950 is filed by the plaintiff as regards the disallowance of a part of his claim regarding mesne profits. 2. The lower appellate Court says in its judgment that the defendant did not press before it his contention that the tenure was an irredeemable one. The correctness of this statement is disputed by the defendant's counsel in this Court. Having regard to the terms in which the contention was raised in the written statement itself, I am inclined to accept the lower appellate court's statement that the contention was not pressed before it. The plaintiff's counsel also stated that the contention was not pressed by the defendant in the lower appellate Court. In the circumstances, I do not propose to consider the defendant's contention that the tenure is an irredeemable one. 3. There is no substance in the contention regarding limitation also. The original mortgage was taken by the defendant's paternal grand-mother in 1060. In a subsequent partition deed, executed by the defendant's father and uncle, the right of the plaintiff's illom to the plaint property and the fact that the plaint property was being held under a redeemable tenure from that illom were expressly admitted. The partition deed is Ext. I, and was executed on 30.12.1067 and registered on 9.1.1068. It is also admitted that the defendant derives his title to the plaint property through his father. The plaintiff's kariasthan swears that the defendant's grand mother was dead before the date of the partition deed. The partition deed is Ext. I, and was executed on 30.12.1067 and registered on 9.1.1068. It is also admitted that the defendant derives his title to the plaint property through his father. The plaintiff's kariasthan swears that the defendant's grand mother was dead before the date of the partition deed. Before the Sub-Registrar the defendant's father admitted also the execution of the partition deed. As has been pointed out in Balasubramonia v. Manikam, AIR 1938 Madras 429, and Labha Mal v. Imam Din, AIR 1923 Lahore 369, such admission implies an admission of the contents of the document and therefore an admission of the subsistence of the liability. The present suit was filed on 3.1.1118 within sixty years of the date of Ext. I partition deed and is not, therefore, barred by limitation. 4. As regards mesne profits, it is contended by the defendant that since the plaintiff has to pay value of improvements to him the plaintiff is not entitled to get mesne profits at all. The value of improvements awarded to the defendant is only Rs. 21/-. Since much more than this amount was due to the plaintiff from the defendant on account of arrears of michavaram on the date of suit the plaintiff was, in any case, clearly entitled to get mesne profits from the date of suit. The lower appellate court was wrong in allowing the plaintiff to recover mesne profits only from the date of its decree and not from the date of suit. 5. For the reasons stated above, the decree of the trial court is restored and S.A. No. 160 of 1950 is allowed with costs. S.A. No. 189 of 1950 is dismissed with costs. S.A.160 of 1950 allowed. S.A.189 of 1950 disallowed.