RAPOLU VITTAL Vs. NAGELLI DURGAIAH

JUDGEMENT

(1.) O.S. No. 64 of 1958, out of which this appeal on behalf of defendants i, 5 and 6 arises, was instituted by the respondent herein for recovery of the mortgage amount and interest thereon. The respondent's case is that defendants 1, 5 and 6 and their late father Venkayya executed a mortgage deed without possession after obtaining the sum of Rs. 20,000 (O.S.) from him, agreeing to pay interest thereon ; but in spite of repeated demands have failed to repay the amount. Defendants 1, 5 and 6, while admitting their relationship with the late Venkayya and the execution of the mortgage deed in question, denied that they were his legal heirs and representatives and that they received the mortgage amount and pleaded that one Rapole Narayana advanced a sum of (H.S.) Rs. 17,300 for enabling the first defendant to pay a sum of Rs. 17,000 to Maripalli Anantham in full settlement of his claim against the first defendant in connection with their partnership business and that as the said Rapole Narayana was the paternal uncle of the first defendant and was a member of the joint Hindu family consisting of his branch and that of late Rapole Venkanna including the defendants, and also because he had no money-lending licence on that date, he did not think it advisable to take a mortgage deed in his own name, and therefore he got the mortgage deed executed in the name of the plaintiff who was an ex-partner and a very intimate friend of his. In other words, it was pleaded that the plaintiff was only a benamidar and a nominal mortgagee.

(2.) Legal objection was also raised that as the plaintiff was a money-lender and had not complied with the provisions of the Hyderabad Money-lenders Act, he was not entitled to claim any sum towards interest and costs. Another legal objection taken was that Rapole Narayana was a necessary party and the suit could not proceed without impleading him. Defendants 2, 3 and 4, minors represented by their guardian, denied in their written statement having any knowledge of the suit transaction and stated that they were living separately with their mother since the past four years and had nothing to do with the suit transaction. The respondent-plaintiff filed a rejoinder denying the allegations of defendants 1, 5 and 6. On these averments in the pleadings, the following six issues were framed :-

(3.) On the evidence produced, the learned Judge held that the plaintiff was not a benamidar, but was a real mortgagee, having advanced money to the mortgagors. On issue No. 2 he held that Rapole Narayana and his sons were not necessary parties to the suit. On issue 3 he found that since the transaction was between two traders, the Hyderabad Money-lenders Act was not applicable and there was no prohibition for the plaintiff to claim interest. On issue 4 he found that the entire sum of Rs. 20,000 was paid to the mortgagors. On issue 5 he found that defendant 1, 5 and 6 were not entitled to question the ownership of defendant-1 and defendants 2 to 4 had no interest in the mortgage property. In the result, the trial Court decreed the suit passing a preliminary decree in favour of the plaintiff. It is against that judgment and decree that defendants 1, 5 and 6 have now come up in appeal.