RAMACHANDRA RAO GANESH AND Vs. SARVAJANA VARDHINI COLTD

JUDGEMENT

(1.) The suit out of which this appeal arises was filed for the sale of the mortgaged property of the plaint schedule in enforcement of the mortgage and for declaration that the 8th defendant was in no way entitled to any interest therein. The Munsif dismissed the suit while the learned Subordinate Judge decreed the suit.

(2.) The facts so far as are necessary for the determination of issues involved in the case may be briefly adverted to. Defendants 1 and 2 are father and son respectively and the schedule property was ancestral to them. The said property was mortgaged with possession by defendant 1 in favour of defendant 4 on 12-9-1928 under a registered deed of mortgage (Ex. A) for a sum of Rs. 1000/- both on his own behalf and as guardian of defendant 2. It is alleged that the said mortgage was for legal necessity and in consequence binding on defendant 2. Besides, it is also stated that the 2nd defendant had not been born at the time of the earlier mortgage dated 23-8-22, to discharge which the suit mortgage under Ex. A came into existence and that on that ground also the 2nd defendant cannot question the alienation. Under the terms of the said mortgage, the mortgagee was authorised to take possession of the schedule property. It is also agreed under the deed that the usufructuary mortgage property should be adjusted towards the interest on the mortgage amount and a period of 8 years was fixed for redemption by payment of the principal amount. Defendants 3 and 4 are two out of the four undivided brothers and it is stated that the mortgage debt referred to above in favour of defendant 4 was their family property. Defendant 4 got into possession of the property and later, on 10-7-32 defendant 3 is said to have released his interest in the joint family properties in favour of defendant 4 and his other brothers and in return thereof taken the right, title and interest under the suit mortgage deed towards his share. Defendant 3 thus became the full owner of the suit mortgage interest and got into possession and enjoyment of the properly. Prior to the said release, defendant 4 is said to have hypothecated his alleged right in the suit mortgage in favour of his own wife Saroja Bai (defendant 5) on 16-5-1929 under a nominal document not intended to be acted upon by the parties. Nevertheless defendant 4 continued to be in possession of the suit property. The plaintiff sued defendant 3, obtained a decree and got his interest in the suit mortgage deed attached, and sold on 16-7-1940 and purchased it himself in court auction. The said sale having been duly confirmed, the plaintiff thus became the absolute owner of the mortgagee's interest in the suit property.

(3.) The only contesting defendant in the suit is defendant 1 (2?), who objected to the plaintiff's claim on the ground that he had a right to question the suit alienation on the plea that he was born in 1920. He admitted that the mortgage in favour of defendant 4 is true but that the consideration under it was left with the mortgagee to discharge the prior mortgage dated 23-8-1922 and to effect certain repairs to the property, that defendant 4 has not furnished accounts and he puts the plain-tiff to strict proof of the exclusive title of defendant 3 to the property and his (plaintiff's) claim to it. Defendant I further alleged that he was ready to redeem the suit mortgage even in November 1936 but was not allowed to do so; that he demanded an account of the usufruct of the mortgage and urged that the plaintiff will be entitled to the suit amount if he is able to put this defendant in possession of the property and deliver the relevant documents. The two courts below held on a consideration of the evidence in the case that the plaintiff is entitled to sue defendant 3, who had become the exclusive owner of the mortgagee's right in question having purchased" the same in court sale and that the mortgage deed was partly supported by consideration. None of these findings are seriously challenged before us.