SREENIVASAN Vs. CHEROOTTY

JUDGEMENT

(1.) In this appeal on behalf of the plaintiff - appellants, the learned counsel for the appellants challenges the decree of the learned Additional District Judge of Tellicherry, declining to accept the claim made by them in O. S. 3 of 1960 that the transaction of mortgage executed by the 2nd defendant, viz., Ext. A2, as well as the decree obtained by the 1st defendant on the basis of the mortgagee in O. S. 107/53 and the further proceedings in execution of that decree, are all not valid and binding on the plaintiff - appellants.

(2.) The plaintiffs are the children of the 2nd defendant, 1st plaintiff being her son by a former husband and the 2nd and 3rd plaintiffs being her children by another husband. The 2nd defendant has executed a simple mortgage under Ext. A2 in favour of the 1st defendant on 6-4-1948. The total consideration recited in that document is a sum of Rs. 2650/-. The 1st defendant instituted a suit, O. S. 107/53 on the file of the Subordinate Judge's Court, Tellicherry, for recovery of the mortgage money, and in default for sale of the properties. The 2nd defendant was impleaded in that suit as karnavathi and manager of the tavazhi concerned. It may be stated in passing, that the mortgage Ext. A2 itself was executed by the 2nd defendant in that capacity. All the present plaintiffs, who were then minors, were parties to O. S. 107/53, and inasmuch as their mother, the present 2nd defendant, declined to act as their guardian they were represented in that suit, by a court guardian. The 2nd defendant raised certain contests regarding the claim made by the mortgagee in that suit and ultimately those objections were overruled. The court guardian, who was representing the appellants in that suit, filed a written statement putting the mortgagee to strict proof of his claim. The main issue that was tried and adjudicated upon by the learned Subordinate Judge in that suit, related to the question as to whether the mortgage was fully supported by consideration. There was no doubt another issue raised regarding the plea of partial discharge set up by the 2nd defendant. The learned Subordinate Judge by his judgment dated 29-3-55, copy of which is Ext. B1 in the present suit, ultimately upheld the claim made by the 1st defendant, who was the plaintiff therein, and held that the mortgage Ext. A2 was supported by consideration and that the discharge pleaded by the present 2nd defendant was not true. Ultimately a decree for sale of the mortgage properties was passed in that suit under the provisions of Act I of 1955.

(3.) The present suit was instituted by the plaintiffs for setting aside the mortgage Ext. A2 as well as the decree Ext. B1 obtained by the 1st defendant in O. S. 107/53 on the basis of the mortgage and the execution proceedings connected with Ext. B1. The claim made by the plaintiffs is that the mortgage Ext. A2 is not supported by consideration and tarwad necessity and that the decree Ext. B1 was obtained by the 1st defendant herein due to the fraud perpetrated upon the 2nd defendant and due to collusion between the 1st defendant and the 2nd defendant. There was also a further claim made by the plaintiffs to the effect that the court guardian, who represented them in the proceedings in O. S. 107/53, did not raise proper and valid contentions that were available to him in law and which he ought to have raised in those proceedings. Therefore, on all these grounds, the plaintiffs urged that the mortgage transaction Ext. A2, as well as the decree Ext. B1 and the further proceedings in execution of the said decree are all void and are not binding on the plaintiffs or their properties.