GODUGULA LAKSHMI NARASIMHAMURTHY Vs. MUTHUKUMALLI VENKATA SUBBARAO

JUDGEMENT

(1.) This appeal is by the plaintiff against the judgment dated 8.9. 1967 of our learned brother Obul Reddi, J., in A. S. No. 291/1963 affirming the judgment dated 31.12. 1959 of the Learned Subordinate Judge, Guntur in O.S. No. 122 of 1958.

(2.) The suit is filed to recover a sum of Rs. 17, 633/-due on three mortgages. The hypotheca which is mentioned in the plaint schedule, is a house comprising of 21 rooms in a site measuring 4096 sq. yrds , in Brodipet, Guntur. This property admittedly is the self acquired property of the first defendant. The second defendant is the father of the first defendant and has a right of residence during his life time under the settlement deed dated 24.10.1931 executed by the first defendant. All the three mortgages were created over the plaint schedule properties. The first is a simple mortgage Ex. A-l dated 21.10.1934 executed by the at defendant in favour of one Venkatakrishniah, the adoptive father of the plaintiff for a sum of Rs. 700/-that it provides for interest at the rate of Re. 0-12-6 per cent per month, that the interest is to be added to the principal once in every three years and the said principal would carry interest at the same rate of 0-12-6 per cent per month. The second is a simple mortgage but executed by both the defendants 1 and 2 as by the aforesaid date, a right of residence was created in favour of the second defendant under the settlement deed dated 24.10.34. The said second mortgage is dated 27-1-1935 and is marked as Ex. A-2 and was for a sum of Rs. 1500/- in favour of Venkatakrishniah. The rate of interest is Re. 0-12-6 p. percent per month and 3 years time was given for payment and that in default of such payment, the same was to be treated as compound interest at the same rate with yearly rests. The 3rd mortgage Ex. A-3 dated 10-8-35 also executed by both the defendants 1 and 2 over the same property in favour of the same Venkatakrishniah for a sum of Rs. 600/- and this provided for interest at the rate of 0-12-6 per rent per month. The unpaid interest was to be added to the principal once in three years and the total was to carry interest at the same rate. The 3rd defendant is a subsequent mortgagee from defendants 1 and 2, under the mortgages dated 2-9-43 and 19-2-44, and the 4th defendant is a sub sequent mortgagee from the first defendant under the mortgage dated 20-10-44. After the death of the plaintiff's adoptive father, the plaintiff became entitled the amounts due under the several mortgage deeds. The plaintiff filed the suite 12-10-58 for recovery of a sum of Rs. 17, 633/-made up of Rs. 5,058/-under Ex. A- 1, Rs. 8500/- (after giving up Rs. 3521-10-0 towards interest) under the second mortgage Ex. A-2 and Rs. 4075/-under the third mortgage Ex. A-3. The 3rd plaintiff alleged that the defendants 1 and 2 were not agriculturists and tea they were not entitled to claim the benefits of the Madras Act IV of 1938. He also stated that the interest charged, was quite reasonable and equitable as all time when the mortgages were executed, the defendants could not obtain credit elsewhere and the money markets were very tight due to world depress in between 1930 and 1936.

(3.) The first defendant remained ex-parte and was subsequently adjudged a insolvent. The Official Receiver, Guntur, was added as the 5th defendant. The 4th defendant also remained ex-parte. The suit was mainly contested by the defendant raising the various pleas that the mortgage deeds were nominal not intended to be acted upon, that the suit was barred by time and that the interest claimed was usurious and penal.