CHEKKU Vs. PULIYASERI PARVATHI ALIAS AMMA AMMAL

JUDGEMENT

(1.) THE suit out of which this second appeal arises was for recovery of a sum of money by sale of the plaint items on the strength of a mortgage deed, Exhibit A -1, dated 2nd May, 1934, for a sum of Rs. 750 executed by one Krishna Menon, Karnavan of the tarwad of defendants 1 to 4 in favour of the plaintiff. The fifth defendant is the purchaser of the jenm right, etc., in some of the mortgaged items in Court auction under Exhibit B -10. The other defendants were impleaded ither as persons in possession or as mortgagees.

(2.) THE main contest by the fifth defendant was that the hypothecation deed was not valid and binding on the tarwad of defendants 1 to 4 and as such the plaint items could not be sold in enforcement of that document. There were other pleas raised by her with which at this juncture we are not concerned. The trial Court found that to the extent of Rs. 635 -7 -11 the mortgage was binding on the tarwad and decreed the suit for sale of the properties to that extent.

(3.) THOUGH the trial Court found that the fifth defendant as purchaser of the jenm rights, etc., over some of the mortgaged items has got herself substituted to all the rights and liabilities of the mortgagor's tarwad with regard to these items, and therefore, could justifiably object to the validity of the mortgage, on the finding that to the extent of Rs. 635 -7 -11 it was binding, that Court gave the decree. Before the learned Subordinate Judge one of the main points urged was that being a stranger to the tarwad, the fifth defendant cannot attack the validity of the mortgage, which could be done only by a member of the family and by none else. The learned Suborinate Judge, following the decision in Cherutty v. Saraswathi Ammal : AIR1945Mad457 , held that as at least one member of the tarwad, namely the fourth defendant had impugned the validity of Exhibit A -1 it is open to the fifth defendant to contest the binding nature of that document. The learned Judge held also that no portion of the consideration was binding on the tarwad.