GURUBHAKTATILAKA NSREEKANTIAH Vs. KSURYANARAYANAPPA

JUDGEMENT

(1.) The appellants are the legal representatives of the deceased plaintiff in Original Suit No. 266 of 1951-52 on the file of the Court of the Munsiff, Hassan. The plaintiff filed the suit to enforce a mortgage, Ex. A, dated 7-7-1919 executed by the 1st defendant and his brother Nanjappa in favour of one Balaguru Venkanna, who later assigned the said mortgage to the plaintiff on 30-9-1944. Nanjappa having died sometime in 2028-29, the 2nd defendant his only son was impleaded as his legal representative and as such interested in the mortgage properties. Those properties are two in number. The first of them was sold on 11-8-1933 in execution of a money decree obtained by the 3rd defendant against the 2nd defendant alone; the 3rd defendant having purchased the said item at the execution sale sold it to the 4th defendant. That was why defendants 3 and 4 were impleaded in the suit. The plaintiff claimed that the suit was in time by reason of certain endorsements contained on the mortgage document evidencing payment of interest in respect of it. The contesting defendants 3 and 4 questioned the genuineness of the assignment in favour of the plaintiff and also the availability of endorsements to save limitation. They state in their written statement that it is learnt that the 2nd item has been sold away for arrears of revenue. Paragraph 7 of the written statement reads as follows:

(2.) The mortgage Exhibit A fixed a period of 2 years for payment. The mortgage money therefore became payable on 7-7-1921. There are five endorsements on the mortgage document, all evidencing payment of interest: Ex. A1 dated 31-1-1930 signed by the 1st defendant alone; Ex. A2 date 10-2-1932 signed by defendants 1 and 2; Ex. A3 dated 20-6-1934 signed by both the defendants; Ex. A4 dated 6-2-1945 signed by defendants 1 and 2. The suit was filed on 6-8-1951.

(3.) The trial Court held that both the mortgage as well as the assignment in favour of the plaintiff were true and also that the 2nd item of property had been sold for arrears of land revenue, accepting the evidence of the 1st defendant as P.W. 3 that the 2nd defendant had told him that the said item was forfeited to the Government, that that item was not in their possession but in the possession of one Sannegowda alias Rangegowda since 1936. The trial court held that the endorsements cannot be true and genuine because the 2nd defendant has not been examined to speak to them although the 1st defendant deposed to the truth of the endorsements and the payments of interest recorded in them. Finally the trial Court held even if these endorsements were true, since the mortgagors had lost interest in both the properties by about 1936, by which time the personal remedy against them had also got barred, the endorsements Exhibits A 4 and A5 were not available to save limitation on the principle stated by the Full Bench of the Madras High Court in Pavayi v. Palanivela Goundan, ILR (1940) Mad 872: AIR 1940 Mad 470.