KARUPPAYEE AMMAL Vs. KARUPPIAH PILLAI

JUDGEMENT

(1.) THIS is an appeal arising out of the Judgment that had been delivered by the learned District Judge, Pudukkottai in O.S.No.5 of 1975 on 24.2.1979, dismissing the suit with costs for the recovery of Rs.20,840 due under a mortgage and also directing lawyer's fee one set.

(2.) THE case of the plaintiff is that the first defendant executed the suit mortgage on 10.4.1974 for Rs.20,000 agreeing to pay interest at 6% per annum payable in two years, that if there was default in the repayment of the amount within the period prescribed, the first defendant should pay compound interest at the same rate with yearly rests, that on the evil advice of the first defendant he had issued a notice as if the mortgage was obtained by fraud and undue influence without any consideration passed, that because of the issue of the notice by the 1st defendant this suit had been filed even though two years' time had not elapsed, that the first defendant was a major, that the first defendant appeared to have executed a release deed on 14.10.1974 in favour of his father, the second defendant and hence he had been added as a party and that the suit amount of Rs.20,840 was due and payable with subsequent interest.

(3.) THE lower court under issues Nos.1 to 3 held that the means of the plaintiff to advance large amounts had not been established, that a perusal of Ex.B2 shows that the first defendant should have been cheated by persons at that time and so steps would have been taken for safeguarding the properties and that the mortgage Ex.A1 was not supported by consideration. THE issues were found against the plaintiff and in favour of the first defendant. According to the lower court, as the release deed had come into existence after the suit mortgage, it would not affect the right of the plaintiff if any, under Ex.A1 Even if the mortgage is held to be true and valid, it would be binding only on the 1st defendant and his share of the properties and not the 2nd defendant, the father of the 1st defendant. In the result, the suit was dismissed with costs with lawyer's fees one set as mentioned above. Aggrieved by the above decision of the lower court, the plaintiff Karuppayee Ammal has come forward with this appeal before this court.