Y.A.A.V.R. SETHURAMAN CHETTIAR Vs. K.K.R.M.R.M. RAMANATHAN CHETTIAR (DIED) REPRESENTED BY HIS LEGAL REPRESENTATIVES MUTHIAH ACHI AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of a suit to enforce a mortgage bond executed on 30th March, 1937, by one Y.A. RM. Veerappa Chetti in favour of the plaintiff -respondent.

(2.) ONE Y.A.A.R. Veerappa Chetti (who will be referred to as the deceased Veerappa Chetti) died without issue on the 12th March, 1937. Y.A. RM. Veerappa Chetti who was a near pangali of the deceased Veerappa Chetti instituted a suit for recovery of the properties pertaining to the estate of the deceased Veerappa from the defendant, appellant herein, who claimed to be the adopted son of the deceased Veerappa. The suit was filed soon after the death of the deceased Veerappa, but as the claimant Veerappa did not have sufficient funds for the conduct of the litigation he sought to assistance of the respondent who agreed to advance Rs. 10,000 in the first instance and further sums later on if required and in pursuance of that agreement the claimant Veerappa executed the suit mortgage Ex. P -I in favour of the respondent for Rs. 10,000 mortgaging all the properties pertaining to the estate of the deceased Veerappa, though the title thereto was then under dispute. Ex. P -I provided that if any amount over and above the sum of Rs. 10,000 for which it was executed was required for the litigation and if Veerappa made a request for such further advance, the properties mortgaged shall be a security for the amounts thus additionally advanced and the interest thereon. The suit (O.S. No. 67 of 1937 on the file of the Subordinate Judge of Devakottai) in which the respondent also joined as a co -plaintiff was dismissed by the trial Court which found the adoption to be true. The plaintiff thereupon preferred an appeal to this Court (A.S. No. 83 of 1940). The claimant Veerappa, however, died before the appeal was heard leaving the respondent on record as the sole appellant. When that appeal was part heard, the parties, that is, the present respondent and the appellant, compromised the matter, the appellant admitting the liability of the estate of the deceased Veerappa Chetti under the mortgage of 30th March, 1937 and the respondent for his part admitting the appellant's title to that estate on the footing of a valid adoption. There was a stipulation that in any suit that might be instituted " the only plea open to the respondent (that is present appellant) is to be about the amount due under the mortgage, no other plea being open to him." (Ex. P -20). A decree was passed in terms of the compromise on the 15th December, 1942, (Ex. P -23). As the amount was not paid in accordance with the terms decreed, the respondent brought the present suit on 21st October, 1943, to enforce the mortgage Ex. P -I, claiming that in addition to the Rs. 10,000 specified in the deed, he had advanced from time to time Rs. 75107 -13 -3 and that both these sums with interest amounted to Rs. 29,541 -7 -3 as on the date of the plaint. The sum of Rs. 7,107 -13 -3 though alleged to have been advanced before the compromise Ex. P -20 was not then agreed upon as payable to the respondent under the mortgage and the appellant, acting on the reservation, in the compromise, of disputes regarding the amount due under the bond, denied his liability to pay the amount and the interest thereon.

(3.) VARIOUS pleas were raised in defence but it is not necessary for the purpose of this appeal to refer to all of them as only three points have been argued, by the appellant's learned Counsel, Mr. Sampath Aiyangar. He contended firstly, that under Section 26 of the Indian Stamp Act, 1899, the respondent is precluded from claiming under Ex. P -I any sum beyond the amount for which the stamp duty paid on the bond would, at the date of the execution, have been sufficient, that is, beyond Rs. 10,000, as Rs. 75 -12 -0 would be sufficient to cover a mortgage for that amount only; secondly, that the Court below was wrong in holding that the appellant was not an agriculturist entitled to the benefits of the Madras Agriculturists Relief Act, 1938; and lastly that the appellant was entitled to relief under the Usurious Loans Act as amended in Madras. We will deal with these points in the same order.