SIDDANNA BOVI Vs. HANUMANTHA REDDY

JUDGEMENT

(1.) The defendants in the suit out of which this appeal arises are the appellants herein.

(2.) Even though in the plaint the relief prayed for is mentioned in a very Involved way, the case of the plaintiff in effect was that a registered usufructuary mortgage deed executed on 26-8-1955 by him in favour of the defendants was void on the ground that it was not supported by consideration and for possession of six items of the suit properties the possession of which had been handed over to the defendants under the aforesaid deed. The plaintiff pleaded that even though the above document had been executed by him, the defendants had not paid any amount, and therefore, the defendants were not entitled to remain any longer in possession of the properties which were given as security for the mortgage. According to the plaintiff the document being a void one, the defendants had no right to remain in possession of the suit properties and enioy them. The plaintiff, therefore, brought the suit for a declaration as already stated that the mortgage deed was void and for possession of the suit properties. The defendants contended, inter alia, that the document was supported by consideration and in, any view of the matter, the suit in the present form brought by the plaintiff for a declaration that the document was void, was not maintainable. After trial the learned Munsiff who tried the suit, decreed the suit as prayed for. The appeal of the defendants filed against the judgrnent and decree passed by the learned Munsiff before the lower appellate court, was unsuccessful. Aggrieved by the judgment and decree of the lower appellate court, the defendants have come up with this present appeal.

(3.) It is unnecessary to go into the question whether the document is supported by consideration or not if the submission made by Sri S. V. Narasimhan, the learned counsel for the appellants, is well founded. Sri Narasimhan contends that the suit for a declaration that the usufructuary mortgage deed under which possession of the mortgaged properties have passed on to the mortgagee is void on the ground that it is not supported by consideration, is not maintainable. It is the contention of the appellants that the courts below have omitted to notice the distinction between an ordinary contract and a mortgage deed executed by a mortgagor in favour of the mortgagee in deciding the question. The lower appellate court has held that the suit for a declaration that the document is void in the circumstances of the case is maintainable relying upon a decision of the High Court of Madras in Kumarappan Chettiar v. Narayanan Chettiar. (AIR 1917 Mad 492). In that case, the plaintiff who was a mortgagee under a hypothecation bond sued for sale of the mortgaged property. Defendant-1 who was the son and legal representative of the mortgagor, contended that the document was not supported by consideration and, therefore, the suit was liable to be dismissed. The questions that arose for decision before that High Court were (i) whether it was open to any of the contesting defendants to raise the Question of consideration; and (ii) whether, when the execution of the mortgage instrument was proved and it contained a recital that consideration passed, the onus of proving want of consideration did not lie on the persons who wished to attack its validity. After going through the material which was available in that case the learned Judges of the High Court of Madras held that the suit was liable to be dismissed as under the document no consideration had passed. Justice Spencer one of the learned Judges who decided the case observed in that case that mortgage without consideration was a nullity and so inoperative and that it created no charge on the property as against a subsequent purchaser. The other learned Judge, Kumaraswami Sastri, J. who heard the case observed that in cases of sales and assignments, mere non-payment of purchase money would not vitiate the transaction and in such cases, it was no concern of a person who was no party to the transaction to call in question the non-payment of consideration; where the transfer itself was impeached on the ground of its being a colourable transaction or of its being otherwise invalid in law, different considerations would prevail. He further held that mortgage was prima facie security for a debt, and, where the debt did not exist, it was difficult to see how the security could be enforced; where, therefore, a puisne encumbrancer or a person in possession of mortgaged property and claiming title thereto, succeeded in showing that there was no debt, it was difficult to see how the property could be ordered to be sold. When this decision of the High Court of Madras was relied upon before the same High Court in Abdul Hashim Sahib v. Kader Batcha Sahib. (AIR 1919 Mad 781), the facts of which were almost similar to the case on hand the High Court of Madras distinguished the earlier case from the case before them and held that a plaintiff could not sue for a declaration that a mortgage executed by him in favour of the defendant was not supported by consideration and for cancellation of the instrument on that ground. It may be mentioned here that Kumaraswami Sastri, J. was a member of the Bench which decided the case of Kumarappan Chettiar. AIR 1917 Mad. 492 as well as the Bench which decided the case of Abdul Hashim Sahib. AIR 1919 Mad. 781. The facts in Abdul Hashim Sahib's case. AIR 1919 Mad. 781 were as already stated, similar to the facts of the case On hand; The plaintiff in that suit had executed a usufructuary mortgage deed in favour of defendant-1 and that defen-dant-1 had leased out one of the items to another defendant. The plaintiff's suit was for a declaration that the mortgage deed "was not supported by consideration and was void and for possession of the property. The court no doubt found that the document was not supported by consideration, but it held that in the circumstances of the case the plaintiff's suit was not maintainable. Dealing with the decision in Kumarappan Chettiar's case, AIR 1917 Mad 492 it was observed by the High Court of Madras as foJlows: