PERIYATHAYEE Vs. PONNAMMAL

JUDGEMENT

(1.) THIS appeal is focused as against the judgment and decree dated 29. 11. 1991, in O. S. No. 121 of 1989, which is a suit based on mortgage passed by the learned Subordinate Judge, Dharapuram. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

(2.) THE portrayal and parodying of the case of the plaintiffs, quintessentially and precisely as stood exposited from the plaint, would run thus: one Kaliappa Gounder borrowed a sum of Rs. 5,000/- and Rs. 15,000/- on 11. 09. 1971 and 30. 10. 1971 from the plaintiff and executed two promissory notes on those respective dates undertaking to repay the principal amounts with interest on demand. On 31. 10. 1971, at Coimbatore, the said Kaliappa Gounder deposited his title deeds relating to the properties described in the schedule of the plaint with the plaintiff, so as to create a mortgage by deposit of title deeds, so as to cover his past and the future debts. The said Kaliappa Gounder borrowed another sum of Rs. 5,000/- on 05. 09. 1974 and executed a promissory note for Rs. 5,000/- subject to the same terms and conditions set out supra. Earlier creation of the mortgage referred to supra covers the third debt also. On 22. 07. 1977, the promisor paid a sum of Rs. 100/- each towards interest concerning the aforesaid three pronotes and made endorsements respectively thereon. For the purpose of creating such mortgage by deposit of title deeds, Kaliappa Gounder deposited a registered copy of the partition deed, since the original was with his eldest brother Kuppusami Gounder. The mortgage deeds in favour of Kaliappa Gounder were also deposited with the plaintiff so as to enable the plaintiff to claim right as sub-mortgagee, but the plaintiff did not want to claim such right as sub-mortgage. Three other documents of sale deeds in favour of Kaliappa Gounder were also deposited with the plaintiff by way of creating such equitable mortgage over those properties.

(3.) KALIAPPA Gounder died leaving behind his widow the first defendant, D2 to D5 his sons and D6 to D9 his daughters. It appears that Kaliappa Gounder and his sons got a partition effected among themselves and the plaintiff is in no way concerned with that as the right of the plaintiff as mortgagee over the suit properties subsists. The other defendants are the alienees of the mortgaged properties subsequent to the creating of mortgage and they are also bound by the mortgage to the extent of the property purchased by them. Accordingly, the plaintiff prayed for the following main relief: