ATMAKUR VENKATASUBBIAH CHETTY Vs. THIRUPURASUNDARI AMMAL

JUDGEMENT

(1.) THIS appeal comes before us for final disposal after the submission of the findings by the learned city Civil Judge in pursuance of an order of this court dated 1-1-1963, calling for a finding. The questions that arise for consideration lie in a narrow compass. The brief facts of the case are as follows.

(2.) ONE A. C. Kannappa executed a settlement deed, Ex. B. 5, dated 25-2-1934, under which he gave a life estate to his son, Rajakannappa in an extent of land, with certain buildings, now bearing door No. 5 Nowroji Road, Chetput, the land measuring about 14 grounds 2070 sq. ft. The vested remainder was given to minor Rajasekharan, the settler's grandson. Rajakannappa's wife is the first defendant, and his son, minor Rajasekharan aforesaid is the second defendant. The third defendant is Rajakannappa's mother-in-law, the mother of the first defendant. Rajakannappa executed two mortgages, Ex. A. 1 dated 28-2-1946 for rs. 10,000 and Ex. A. 2 dated 23-1-1947 for Rs. 5000 in favour of the plaintiffs, mortgaging the aforesaid property, over which he had a life interest. In the operative portion of the two mortgages, it is specially stipulated that the properties comprised in the settlement deed, the land and the building then existing as well as any future building or buildings that may be erected with all fixtures and fittings attached would remains security for the amounts advanced under the aforesaid mortgages. In this connection, it may also be mentioned that when the first loan of Rs. 10,000 was advanced the mortgagees and the mortgagor particularly contemplated erection of buildings on the land in question. Under Ex. B. 1 dated 1-7-1951 Rajakannappa and his wife and son executed in favour of one Chandrasekhara Mudaliar, the 4th defendant in the suit, a mortgage for Rs. 5000, comprising the land in question, as well as a new construction which was put up by the mortgagor on the land in question. Rajakannappa was adjudged insolvent in I. P. No. 28 of 1953 and the Official assignee of Madras sold in public auction under a deed of conveyance, Ex. B. 2, dated 28-12-1953, the suit properties including the newly constructed building aforesaid and the same was purchased by the third defendant for a sum of Rs. 500 subject to the mortgage of rs. 5000 in favour of the 4th defendant. It may be mentioned that this sale by the official Assignee did not contain any reference to the two mortgages, Exs. A. 1 and A. 2 in favour of the plaintiffs. By this time, Rajakannappa died on 28-8-1953.

(3.) THE plaintiffs filed the suit O. S. No. 641 of 1957 to recover s sum of Rs. 15,000 representing the balance due on the two mortgages aforesaid (giving up a portion of the claim) and the main contest relates to the question as to how far this claim is enforceable against the superstructure which was subsequently put up by the mortgagor, Rajakannappa. The claim of the 4th defendant, the mortgagee under Ex. B, 1, has been satisfied and therefore we are not concerned with him.