KOTHAKAPA CHINA KONDA REDDY Vs. R VENKATA RAO

JUDGEMENT

(1.) In this second appeal the point that is urged and argued is whether the suit, the subject-matter of this appeal, which is filed on a subsequent mortgage, is tenable having regard to Section 67-A of the Transfer of Property Act. In order to determine this question a few facts maybe briefly stated. The 1st defendant executed a prior mortgage deed dated 18-10-1940 in favour of Kurnool Co-operative Urban Bank for Rs. 1,500.00. He later executed a second simple mortgage dated 28-4-1945, in favour of Sampathi Maldl Reddi for Its. 3,000/-.Out of the proceeds of the mortgage amount he discharged the first mortgage by paying Rs. 1,467-7-0. On 18-1-1947 he created a third mortgage in favour of the plaintiff for Rs. 5,000.00undertaking to pay Rs. 3,440.00 in discharge of the second mortgage but he only paid a sum of Rs. l,460.00. A fourth mortgage was executed by him in favour of the plaintiff, the third mortgagee, for a sum of Rs. 3,000.00 on 12-5-1947.The first usufructuary mortgage was created in favour of the second defendant-appellant, on 17-2-1949 for Rs. 4,000.00 redeemable on 18-2-1952. It may be stated that the third and the fourth mortgages in favour of the third mortgagee were payable on 15-2-1949, but it is contended that when notice was given to the defendant by the plaintiff, the 1st defendant approached the plaintiff and asked for time with respect to the fourth mortgage. Time was given by executing Ex. A-5, a letter dated 1-11-1949 which reads as follows:-

(2.) Both the courts have held that this document was not a forgery and was a genuine document executed before the sale. After the purchase of the property subject to the second and fourth mortgages by the 2nd defendant, the plaintiff filed a suit with respect to the fourth mortgage. The second defendant objected to its maintainability on the ground that Section 67-A of the Transfer of Property Act was a bar to it. Both the Courts have negatived that contention and hence this appeal.

(3.) Section 67-A of the Transfer of Property Act is in the following terms:-