MUTHA MUDALI (DIED) AND ANR. Vs. KUPPANNA GOUNDAN

JUDGEMENT

(1.) THIS second appeal has been referred to this Bench by Krishnaswami Nayudu, J., for determination of the question whether the first defendant could be considered to be an heir, legal representative or assign of the debtor under Explanation IV to Section 8 of Act IV of 1938.

(2.) THE facts of the case briefly are these. The plaintiff brought the suit for recovery of a sum of Rs. 614 -7 -9 due under a mortgage executed by the first defendant on 8th June, 1927, under which he undertook to pay the amount with interest at 11 per cent, every month and in default at 15 per cent, and also to repay the principal sum within a period of three years. It is common ground that there existed an earlier mortgage for Rs. 1,000 dated nth July, 1917, executed by the first defendant and his brothers in favour of the plaintiff, that on an oral partition between the first defendant and his brothers the debt was apportioned among the erstwhile members of the joint family, and that the first defendant being one of them executed the suit mortgage deed for his share of the debt due to the plaintiff for Rs. 445 -8 -0 and interest at the rates stated above. The suit mortgage is evidenced by Exhibit A -1 dated 8th June, 1927 and it sets out in detail the circumstances in which the suit mortgage came to be executed in favour of the plaintiff.

(3.) THE plaintiff preferred an appeal A.S. No. 188 of 1950 before the learned District Judge of Coimbatore against the judgment and decree of the learned District Munsif. The only question that was considered by the learned District Judge was whether the decision of the lower Court in scaling down the debt was just and proper. The appellant's contention, however, was that the principal amount due under the mortgage for the purpose of Section 8 of Act IV of 1938 was Rs. 445 -8 -0 and not Rs. 250 and that the debt to be scaled down could not be traced back to the mortgage deed of 1917, which was for Rs. 1,000, and which subsequently became apportioned among the four members of the joint family on partition. The learned District Judge was of the opinion that the contention of the appellant was well -founded and that it was covered by the decision in Tirupathirayalu v. : (1949)2MLJ768 . He further opined that the debt of 1917 was split up at the time of execution of Exhibit A -1, the suit mortgage, in 1927 and consequently the continuity of the debt was lost and the principal due under Exhibit A -1 should be considered to be only Rs. 445 -8 -0 and not Rs. 250. Therefore he found that the plaintiff was entitled to recover a sum of Rs. 891 minus Rs. 544 together with interest at 6 1/4 per cent, from 1st October, 1937 to 29th July, 1947 and at 5 1/2 per cent, thereafter. He, therefore, allowed the appeal giving three months time for payment of the decree amount. The first and second defendants have therefore preferred this appeal. The first defendant died during the pendency of the proceedings, and the second defendant is recognised as his legal representative.