PISIPATI PUNNAKOTIAH DIED Vs. KALLEAILLI KAKITAMBA

JUDGEMENT

(1.) This is an appeal against the judgment of the Subordinate Judge, Vijayawada., in O. S. 69 of 1956 by which he dimissed the suit on a mortgage executed by the 1st defendant in favour of the plaintiff, Ex. A-5 dated 27-1-1955, for Rs. 7,500/- The plaintiff is the appellant.

(2.) The plaintiff filed the suit claiming interest at 12% per annum simple, though it was provided under the mortgage dead that the amount was payable with compound interest at 1% per mensem with annual rests. The plaintiff impleaded the prior mortgagee as the 5th defendant. The said mortgagee had obtained a preliminary decree on 30-1-1956 on his mortgage dated 14-3-1952. The plaintiff also im pleaded the 3rd defendant in the suit as a purchaser in execution of the money decree obtained against the 1st defendant-mortgagor in S.C. 417 of 1953 on the file of the District Munsif's Court, Viiayawnda. He had purchased the property subject to the first mortgage in favour of the 5th defendant and the plaintiff's mortgage, Ex. A-5. The 2nd defendant in the suit is the married, daughter of the 1st defendant. The tenants of the mortgage property were also impleaded. It may at once be stated that Ex. A-5 was executed for the money advanced by the plaintiff under an earlier mortgage Ex. A-1 dated 12-7-1953 under which he advanced a sum of Rs. 6,000/-. The earlier mortgage was cancelled by Ex. A-5 and it was stated so expressly. It was recited in Ex. A-5 that a sum of Rs. 7,162-13-0 was received by the executant from the mortgagee adjusting the same towards the amount of principal and interest accrued under; the mortgage deed dated 12-7-1953 and a sum of Rs. 337-3-0 received in cash on the day of the execution of Ex. A-5 for stamp duty and other expenses relating to the mortgage.

(3.) The suit was resisted mainly on two pleas: firstly that no consideration passed under Ex.A-1 (the earlier mortgage) as the amount was taken away by the plaintiff-mortgagee after the registration of the mortgage deed before the SubRegistrar and that the executant received only Rs. 3,000 from the mortgagee some time after 10-3-1955, and secondly that the mortgage could not be enforced, as the lending was for the purpose of marrying away the 2nd defendant (daughter of the 1st defendant; who was below 15 years of age against the provisions of the Child Marriage Restraint Act, 1929 (XIX of 1929). It may be appropriately noticed here that the purpose of the enactment was to restrain the solemnisation of child marriages, 'child' having been defined to be a person who, if a female, was under 15 years of age. The learned Subordinate Judge accepted both these pleas and dismissed the suit. It is now contended before me that the learned Subordinate Judge went wrong in accepting both these pleas.