(1.) This appeal is against the decree and judgment in O. S. No. 14 of 1950 on the file of the Sub Court, Pudukottai. The second plaintiff is the appellant. The suit was laid for recovery of a sum of Rs. 30,236-2-0 on the foot of a mortgage executed by the first respondent in favour of Lakshmanan Chettiar, the husband of the appellant, for a sum of Rs. 10750 with subsequent interest at 9 per cent per annum compoundable every 12 months. It was stated that Lakshmanan Chettiar was a benamidar for the appellant. Both Lakshmana Chettiar and the appellant filed the suit impleading the mortgagor as well as his two sons as parties thereto. Respondents 2 and 3 are the sons of the mortgagor. Respondents 4 and 5 are the subsequent encumbrancer and purchaser. The first plaintiff, Lakshmanan Chettiar died, pending the suit.
(2.) At the time of the mortgage the first respondent was a member of a Hindu joint family consisting of himself and his younger brother. The mortgage, Ex. A. 1, created a security over three items of properties: (1) a half share in a house on Pudukottai, (2) lands in the village of Rangiyam and (3) a half share in the certain lands situated in Ammampatti village. Subsequent to the mortgage, there were disputes between the mortgagor and his brother, which resulted in the filing of O. S. No. 816 of 1938 on the file of the then Chief Court of Pudukottai, for partition of the joint family properties. The mortgagee, Lakshmanan Chettiar, was also made a party to the action. In the final decree, the first respondent did not get items 1 and 2 mentioned above for his share but was allotted the whole of item 3, besides certain other properties.
(3.) In the mortgage suit, out of which this appeal arises the appellant and her husband claimed that the amount due should be made recoverable on the security of the other items that fell to the share of the first respondent under the partition decree, as they should be properly held to be a substituted security. The defence to the suit was substantially threefold: (1) that the mortgage was not binding on the interests of the second and third respondents, as the money was advanced neither for the necessities of the family nor for the actual discharge of any antecedent debt of the first respondent, (2) that the mortgagor was entitled to reliefs under the Madras Agriculturists Relief Act, IV of 1938, and (3) that the mortgagee would not be entitled to a charge on the other properties allotted to the first respondent's branch in the partition except to an half share of the lands in Ammampatti village which was secured to him under the mortgage.