NAGALINGA NADAR Vs. K. MEHRUNISA BEGUM AND ANR.

JUDGEMENT

(1.) THE 2nd defendant in O.S. No. 116 of 1973, Sub Court, Vellore, is the appellant in this Appeal. The 1st respondent, figuring as the plaintiff, sued the appellant and the 2nd respondent for the recovery of a sum of Rs. 24,228 on a simple mortgage, dated 17th January, 1966 with subsequent interest or in the alternative for a money decree for a like sum against the 2nd respondent herein. According to the case of the plaintiff, she and the 1st defendant in the suit are related as brother and sister and in a partition suit, regarding the estate of their father, in O.S. No. 99 of 1953, Sub Court, Vellore, the suit property, among other items, was allotted to the share of her brother in 1. A. No. 1313 of 1954 in O.S. No. 99 of 1953. Having thus obtained the property, the 1st defendant, according to the plaintiff borrowed a sum of Rs. 13,000 on the security of the suit property and executed a registered mortgage deed dated 17th January, 1966. The consideration of Rs. 13,000 was paid by Anwar Sanib on behalf of the plaintiff and received by the 1st defendant in the presence of the Sub Registrar at the time of the registration of the document on 20th January, 1966. The plaintiff claimed that though the 1st defendant executed the mortgage deed on 17th January, 1966, agreeing to repay the sum of Rs. 13,000 with interest thereon at 12 per cent per annum on the security of the property, he had not paid any amount either towards principal or interest in spite of repeated demands. The 1st defendant, according to the plaintiff was not entitled to the benefits of the Agriculturists Relief Act and therefore, the plaintiff is entitled to claim the stipulated interest of 12 par cent per annum. The plaintiff further averred that the total amount thus due will be Rs. 24,228. The 2nd defendant in the suit, according to the plaintiff, is a purchaser of the mortgaged property under the sale deed, dated 10th January, 1973, and was impleaded as the purchaser of the hypotheca as he is bound to discharge the mortgage debt from out of the property purchased by him The plaintiff issued a notice on 18th February, 1973, calling upon defendants 1 and 2 to pay the mortgage amount to which a reply was sent by the 1st defendant on 9th March, 1973 denying the mortgage and stating that he has been tricked into putting his signature in the document and that the mortgage deed was neither executed nor attested nor did any consideration pass thereunder. A reply, dated 26th March, 1973, was sent on behalf of the 2nd defendant stating that there was no mortgage over the suit property and his purchase was free from mortgage. The plaintiff characterised the stand taken by the defendants 1 and 2 as fraudulent and mischievous and reiterated in a rejoinder the execution of the mortgage by the 1st defendant and the passing of consideration thereunder as well as the liability of the 2nd defendant as a purchaser to clear off the mortgage liability. The further case of the plaintiff was that only that property which was given to the 1st defendant as per the allotment in I. A No. 1313 of 1954 in O.S. No. 92 of 1953, Sub Court, Vellore, in Arcot Road was mortgaged and it was clearly intended both by the plaintiff and the 1st defendant that the property described by the boundaries was intended to be mortgaged as the security for the loan of Rs. 13,000 and the interest thereon The plaintiff averred that after the receipt of the reply notice it was found out that the municipal door number of the hypotheca had been given by mistake as door No 72, Arcot Road, when the correct door No. is 73, and the said mistake in the doorway will not affect the mortgage in favour of the plaintiff as the boundaries of the hypotheca will take only the property bearing door No. 73 and the door No. 72 was the property of the plaintiff herself. This error in the description of the door number, according to the plaintiff, will not matter and that she is, therefore, entitled to have a mortgage decree over the suit pro -party whose correct and real door No is 73, Arcot Road Alternatively, the plaintiff also prayed that if for some reason the Court were to hold that the door No. 73, Arcot Road is not the subject -matter of the mortgage, then she will be entitled to a money decree as against the 1st defendant since the door No. 72 had been written in the deed owing to mistake. Under the aforesaid circumstances, the plaintiff prayed for a decree directing the defendants to pay the plaintiff the sum of Rs. 24, 228 and future interest and in default of such payment, directing the sale of the suit property for the suit amount and further that in case the sale proceeds are not sufficient to satisfy the suit claim, then to proceed against the first defendant personally for the balance or in the alternative directing the 1st defendant to pay the suit amount with costs to the plaintiff and granting such other reliefs as may be necessary.

(2.) THE 1st defendant in the suit filed a written statement admitting the relationship between the plaintiff and himself and the Court proceedings in I. A No. 1313 of 1954 in O.S. No 99 of 19.53 and the allotment of the properties in the said suit. The borrowing by him from the plaintiff and the execution of the mortgage deed on 17th January, 1966, was denied by him. He claimed that he was tricked into putting his signature in the document and therefore, no liability would arise under the mortgage document. It was also the case of the 1st defendant that no payment was also made before the Sub -Registrar as claimed by the plaintiff. The 1st defendant pleaded that the property alleged to have been mortgaged is not the mortgaged property and that there is no valid and enforceable mortgage and the claim for the recovery of money is not sustainable. A plea of limitation with reference to the money decree claimed by the plaintiff was also raised.

(3.) THE second defendant in his written statement stated that the property purchased by him was allotted to the 1st defendant in the Court proceedings and not the property described in the plaint schedule. He claimed to have obtained an encumbrance certificate with reference to the property purchased by him and that he was not in a position to see any encumbrance in favour of the plaintiff The mortgage sued upon, according to the 2nd defendant, was a fabricated one and that he is a bona fide purchaser for value in good faith and therefore, he is not in any manner concerned with any debt and that the property purchased by him cannot be made liable for the claim of the plaintiff as against the 1st defendant. On these grounds, defendants 1 and 2 prayed for the dismissal of the suit.