RAMANUJULU NAIDU Vs. GAJARAJA AMMAL

JUDGEMENT

(1.) THE plaintiff whose suit on a mortgage dated 17th February 1935 has been dismissed by the Courts below is the appellant in -this second appeal. The defence of the defendant (here respondent) was that the mortgage was a nominal transaction and that in any case there was a want or failure of consideration for the mortgage.

(2.) THE facts are these: One Rangappa Chetty who died in 1915 was the owner of a house in Trichinopoly and an extent of 1 acre 80 cents of cultivable land. He died leaving him surviving a widow Seshammal, his grand -daughter (daughter's daughter) Gajarajammal who is the defendant and Govindaswami, a grandson of his paternal uncle. The widow died on 21st December 1932. By that time the Hindu Law of Inheritance (Amendment) Act, (II [2] of 1929) had come into force. In the year 1933, a Division -Bench of this Court decided in Krishnan Chettiar v. Manikammal, 57 Mad. 718 : A. I. R. I934, Mad. 138 that Act II [2] of 1929 applied only in respect of succession to the property of Hindu males dying intestate after the Act came into force. This decision was overruled by a Pull Bench in Lakshmiammal v. Anantharama Aiyangar, I. L. R. (1937) Mad. 948 : A. I. R. 1937 Mad. 699 where it was held that when a Hindu male died intestate before Act (n [2] of 1929) leaving a limited female heir who was alive after the Act came into force, succession to the deceased male member opened after the passing of the Act. Under the earlier decision of this Court, Govindaswarni would have succeeded and under the later decision Gajarajammal, the defendant would have succeeded as heir to the suit properties. Between the dates of these two decisions Govindaswami sold the suit properties to the defendant for a sum of Rs. 600 the price being paid by the execution of the suit mortgage by the vendee to the vendor for the full amount of the consideration. The sale and mortgage were executed on 17th February 1935 each forming the consideration for the other. Exhibit p -1 is a registration copy of the mortgage. By a series of assignments the mortgage right is now said to be vested in the plaintiff.

(3.) I shall first deal with the second point urged by the learned advocate for the appellant. When the sale deed was executed in 1935, the vendor and vendee both acted on the footing that the former had a good title to convey and should take the price in the shape of a mortgage on the property sold. It is said that the mistake underlying this transaction was only a mistake of law relating to the interpretation of Act II [2] of 1929) the parties having adopted the same erroneous interpretation of Act (II [2] of 1929) as the Bench of this Court which decided Krishnan Chettiar v. Manickammal, 57 Mad. 718 : A.I.R. 1934 Mad. 138.