VISALAKSHI ACHI Vs. ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) THESE appeals have been preferred by the defendant and the plaintiff in O. S. No. 43 of 1962, on the file of the Subordinate Judge's Court, Devkottai, against the decree and judgment therein in so far as they are against each of them. The suit was filed by the plaintiff Visalakshi Achi for recovery of Rupees 26,024-09 being the principal and interest due on the mortgage deed, Ex. A-1, dated 28-121965, executed by her husband, the deceased Parichiappa alias Kasi Chettiar, in her favour for Rs. 21,400. It is clear from the mortgage deed, as well as the averments in the plaint, that it was executed in discharge of two deposit letters, ex. A-4 and the evidence that it was executed in discharge of an earlier deposit letter Ex. A-4 and A-6 dated 13-11-1955 for Rs. 8006-12-6 and Rs. 13435-2-3 respectively. It is clear from the recitals in Ex. A-6 and the evidence that it was executed in discharge of an earlier deposit letter Ex. A-2 dated 2-4-1947 executed by Kasi Chettiar in favour of the plaintiff. In respect of these specific recitals in paragraph 5 of the plaint about the deposit letters Ex. A-4 and A-6, the only plea of the defendant in his written statement is that the recitals of consideration in the mortgage deed are fictitious and false, that the plaintiff and her father had no means to enable the plaintiff to had no means to enable the plaintiff to deposit moneys with her husband and that he denied that any money of the plaintiff was deposited with the husband Kasi Chettiar. PW. 1 Chinnian Chettiar, is the nearest pangali of Kasi Chettiar. He has attested the suit mortgage Ex. A-1. He stated that the deposit letter Ex. A-2 was written and signed by Kasi Chettiar. But he admitted in cross-examination that he was not present at the time of the writing of Ex. A-2. In fact, the plaintiff admitted in cross-examination that at the time of writing of Ex. A-2, no other adult was present except the writer. D. W. 1 Venkatachalam chettiar admitted in cross-examination that the handwriting in Ex. A-2 is that of his father-in-law Kasi Chettiar, PW. 1, Chinnian Chettiar, has attested the endorsement of discharge Ex. A-3 made on Ex. A-2, when it was discharged by the execution of Ex. A-6 P. W. 1 has attested Ex. A-6. On the same date, Kasi Chettiar executed Ex. A-4 and it was also attested by P. W. 1 Exs. A-5 and A-7 are the endorsements made on Exs. A-4 and A-6 respectively when they were discharge by the execution of the suit mortgage Ex. A-1. P. W. 1 denied the suggestion Exs. A-4 and 6 were got up to support the recitals in Ex. A-1. But it should be noted that there is no plea in the written statement of the defendant that Exs. A-4 and a-6 are ante-dated documents. The execution of Exs. A-4 and A-6 has been proved by the evidence of P. W. 1 Chinnian Chettiar, who has attested them and it corroborates the evidence of the plaintiff.

(2.) THE defendant Arunachalam Chettiar is the brother of the second wife of Kasi chettiar and he purchased the hypotheca in a Court auction sale held in execution of the decree in O. S. 13 of 1960, on the file of the District Munsif Court, devakottai, subject to the suit mortgage. His plea is that the suit mortgage is not supported by consideration. We have already referred to his plea that neither the plaintiff nor her parents had means to deposit moneys with Kasi Chettiar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Discussion of evidence omitted ).

(3.) IN these circumstances, it is impossible to rely on the evidence of the defendant and his witness, that the plaintiff had no means to advance loans to her husband and that the suit mortgage is therefore not supported by consideration.