MANKIAH Vs. HANUMANTHU

JUDGEMENT

(1.) The Appellants in C. C. C. Appeal No. 9/60 are the Respondents in C. C. C. Appeal No. 12/60, while the Respondent in the first Appeal is the appellant in the second appeal. The appellants in C.C.C.A. 9/60 filed the suit for recovery of the amounts due on twe mortgages executed by the respondent in that appeal. One of the mortgages was for Rs 5000-while the other was for Rs. 3000/-. It was averred in the plaint that the appellants' father Annam Ratniah had advanced a sun of Rs. 5000/-to the defendant on 17-7-1946 on the latter executing a mortgage of his properties On 5-2-49, another mortgage was executed by the defendant in favour of the appellants for Rs. 3000/-. It may be stated that Ratniah died on 6-9-1946 and the appellants are his three sons. The total amount due on beth the mortgages is Rs. 10,714-4-9. This amount was not paid. So, the suit was filed against the respondent. It may also be stated that there were two prior mortgages which were taken on 24th Furwardi 1345 Fasli and 27th. November, 1935 These mortgages were cancelled at the request of the respondent and a fresh mortgage Ex. A-1 was executed by the respondent. The respondent took several pleas such as, that the suit is not maintainable inasmuch as the plaintiffs should obtain Succession Cetificate; mat though the mortgages recite 6% interest, the ireipondent was paying more than the statutory rate; that the payments made by the respondent from time to time were entered by the plaintiffs 1 and 2 in a bound note-book maintained by the defendant which book was taken and retained by the plaintiffs in 1949 on the pretext that they had to verify these amounts with their accounts,; that the defendant paid amounts in xcess of the amounts due to the plaintiffs; that the amount due on the second mortgage was not Rs. 4017-13-9; (but he was unable to say what the amount was due under it), that the provisions of the Hyderabad Money-Lenders Act would apply to this case as the plaintiffs are money-lenders, that they are not posessed of a valid money-lending license at all material times, namely at the tiem of the grant of the loans, and they cannot therefore claim any exemption form the operation of the provisions of the Hyderbad Money-Lenders Act on the ground that the defendant is a contractor. On these pleadings, several issues were framed. But. in these appeals, the questions as to whether the Money- Lenders Act would apply to the appellants (in C.C.C.A. 9/60; and whether the appellants can claim exemption under any of the provisions of the said Act only have been raised So far as the loan is concerned, it is not disputed that these loans were made on the security of the mortgaged properties by registered documents. While no doubt the plea of discharge was taken by the respondent; but the finding of the learned Judge against that has not been canvassed in these appeals because as the learned Advocate for the respondent quite rightly pointed out there was no material for him to urge that contention. So, the only questions, therefore, as we pointed out, relate to the validity of the transaction and with respect to the recovery of these loans in view of the provisions of the Hyderabad Money-Lenders Act. Issues 3 (a) and 3 (b) are: 3(a). Do the provisions of the Money Lenders Act apply to this suit; (b) If jso, what is its effect; It is not denied that the appellants are money-lenders beside6 doing business in purchase and sale of gold. It is also not denied that the respondent, who is a washerman, was doing military contracts at the relevant time. The Addi. Judge City Civil Court, held that the appellants are money-lenders, that the subsequent mortgages were fresh transactions and are hit by S.9 of the Hyderabad Money Lender, Act and that therefore no suit could be laid to recover monies there on.

(2.) So far as the second mortgage Ex. A-5 Dt. 5th. Furwardi 1358 F corresponding to 5-2-1949, is concerned, he held that it came within the exempt on provided under S. 2(4) (g) which exempts trom the operation of the definition of Loan a loan advanced by one trader who gives monies to another trader in the ordinary course of business and. in accordance with trade practice. In this view he dismissed the suit of the plaintiffs with respect to Ex. A-1 dt 12th. Sharewar, 1355 F. and decreed the suit in respect of Ex.A-5 dt. 5th. Furwardi 335 as against this judgment and decree, the appellants-plaintiff failed appeal C.C.C.A 9/60 while the defendant respondent filed C.C.C.A. 12/60 In the first appeal, the question is whether Ex. A-1 is a fresh loan or a renewd of the previous loan and whether the exemption from the operation of the Hyderabad Money-Lenders Act envisaged under S. 11 would apply to this transaction and whether the attestation of the son of Ratniah, the mortgagee, makes the document invalid, it may be stated that Annam Viswanadha Rao had attested Ex. A-1 and it was contended that that is fatal to the validity of the mortgage document. Taking the last point first, it is now authoritatively laid down by their Lordship of the Supreme Court in an unreported judgment in Civil Appeal 304 of 1963 decided on 5th. day of May, 1965 (Kumar Harish Chandra Singh Deo and Another v. Bansidhar Modhanty and other) that such an attestation does not make the document invalid. Mudholkar, J. speaking for the court observed:

(3.) In arriving at this conclusion Their Lordships relied on two cases, particularly that of the Bombay High Court in Balu Ravji Char at v. Gopal Gangadhar Dhabu #1 and also the judgment of the Chief Court of Oudh in Durga Din and Others v. Suraj Baksh #2 which was referred to. It was pointed out by the Supreme Court that distinction is drawn in the Bombay case between a person who is a party to a deed and a person though not a party to the deed is a party to the transaction and it is said that the latter is not incompetent to attest the deed. This decision (the decision of the Bombay High Court) was followed by the Chief Court of Oudh. Their. Lordships of the Supreme Court, expressed agreement with the view taken by the "Bombay High Court. It is indisputable that Annam V' waaadha Rao, the third appellant in C.C.C A.. No 9/60, was not a party to the document though he has a beneficial interest therein. The mere fact that he was beneficially interested, as has been seen, is not a bar from his being an attesting witness. On that ground the document Ex. A-1 cannot be challenged. The finding of the lower court that Ex. A-1. is invalid cannot be sustained.