RAMASWAMI PILLAI Vs. SANKARA MUDALIAR

JUDGEMENT

(1.) THIS appeal raises some interesting points of law under the Madras Agriculturists' Relief Act, 1938 as amended by the Madras Act XXIII [23] of 1948. The facts are fully and accurately stated by the learned Subordinate Judge of Salem in his judgment and it is not necessary to restate them. It is enough if the material facts sufficient to appreciate, the contentions of the parties are briefly stated.

(2.) DEFENDANT 1, Arumugam Pillai, for himself and as guardian of his then minor son defendant 2 executed a mortgage deed in respect of the properties situate in Pandamangalam and Vangarai in favour of the plaintiff for a sum of Rs. 5000 carrying interest at ten per cent. per annum. Defendant 3 is defendant 1's after -born son. In I. P. no. 80 of 1933 on the file of the District Court of Salem defendant 1 was adjudged an insolvent and so the Official Receiver of Salem in whom his interest vested was added as defendant 4. The plaintiff instituted O. S. no. 50 of 1944 on the file of the Court of the Subordinate Judge of Salem on the foot of the mortgage deed impleading theaforesaid four defendants. On the same properties there was a prior mortgage executed by defendant 1. On 10 -11 -1926 defendants 1 and 2 executed another mortgage in respect of Pandamangalam lands in favour of one Poosari Sellaperumal Pillai. Periasami Pillai, the son of the said Sellaperumal Pillai, instituted O. S. No. 50 of 1934 on the file of the Court of the Subordinate Judge of Salem to enforce the said mortgage and obtained a decree. To that suit the plaintiff, the puisne mortgagee, was added as defendant 4. Under the said decree a sum of Rs. 4620 -4 -0 due to Periasami under his prior mortgage was directed to be paid to him and also a sum of Rs. 6933 -6 -0 due to defendant 4 (the present plaintiff) under the mortgage deed dated 10 -8 -1931 was directed to be paid to him. Under Clause 4 of the decree the mortgaged properties, i. e., Pandamangalam lands had to be sold and the proceeds realised had to be paid to Periaswami in the first instance and the balance to defendant 4 (the present plaintiff) towards his mortgage. The properties were sold on 18 -11 -1935 and after paying the prior mortgagee the surplus amount of Rs. 3477 -13 -8 was paid to the plaintiff. An endorsement dated 25 -11 -1935 was made on the mortgage deed dated 10 -8 -1931 to the effect that a sum of Rs. 3477 -13 -8 had been paid towards the suit mortgage. Out of the said amount the plaintiff credited in his account books Rs. 2135 -6 -8 towards interest and Rs. 1342 -7 -0 for principal. He filed the present suit on the footing of the mortgage dated 10 -8 -1931 for the balance of the amount due thereunder after giving credit to the said amount of Rs. 3477 -13 -8 in the manner stated above. Defendant 2 was the only contesting defendant. Various contentions were raised by defendant 2 and they are reflected in the following issues :

(3.) THE said dictum of Lindley L. J. was accepted and followed by Wadaworth and Patanjali Sastri JJ. in Neelappa Reddiar v. Solaimuthu Udayan : AIR1941Mad58 . In the words of Wadsworth J.