Madras High Court
Krishna Pillay And Ors. vs Rangasami Pillai And Ors. on 15 February, 1895
Equivalent citations: (1895)ILR 18MAD462
JUDGMENT
1. The Subordinate Judge has agreed with the District Munsif in finding that the kanom sued on is not proved to be genuine. But he has, nevertheless, given plaintiff a decree on the ground that Exhibits A, B, C and D contain admissions of first defendant and his brother being kanomdar under those through whom plaintiff claims, and that these are admissions made within the statutory period so as to prevent the plaintiff's claim to redeem being time-barred. We agree with West, J., in Govindrav Deshmukh v. Ragho Deshmukh I.L.R. 8 Bom. 543 in holding that a plaintiff failing to establish the mortgage on which the suit was based should not be allowed to fall back upon some other as to which admissions may have been made by the defendants in other proceedings. In Unnian v. Rama I.L.R. 8 Mad. 415 the decree was passed on a mortgage expressly pleaded and relied on by the defendant; so also in Kunhi Kutti Nair v. Kutti Maraccar 4 M.H.C.R. 359.
2. We therefore set aside the decree of the lower Appellate Court and restore that of the District Munsif.
3. Respondents must pay appellants' costs in this Court and in the lower Appellate Court.