JANIKAMMA Vs. JANIKAMMA NUNNA VEERRAJU

JUDGEMENT

(1.) This is an appeal against the judgment of the Subordinate Judge, Kakinada passing a preliminary decree in favour of the plaintiff in O. S. No. 7 of 1960, a suit on the foot of two simple mortgages executed by one Kunapureddi Satyam in favour of the plaintiff. The mortgagor, Satyam, having died, the suit was laid against his L. Rs. defendants 1 and 2, his widow and his daughter respectively. The 3rd defendant is the subsequent purchaser of the hypothecated properties subject to the mortgages under Ex. B-l dated 31-5-1956. The 3rd defendant was the sole contesting defendant. The suit having been decreed rejecting the 3rd defendant's pleas, she is the appellant before me.

(2.) There is no dispute that late Kunapureddi Satyam executed a mortgage over A schedule property under Ex. A-1 dated 21-5-51 for a sum of Rs. 5000/- borrowed from the plaintiff payable with 12% compound interest with yearly rests. The said Satyam also executed a mortagage over A and B schedule properties under Ex. A-2 dated 9-6-1952 borrowing Rs. l4,000/-from the plaintiff payable with 6% simple interest. The mortgagee laid the suit on 2-8-1960 giving credit to a payment of Rs. 600/- made on 21-5-1952 towards the earlier mortgage and a payment of Rs 1.600/- made on 4-6-1956 towards the later mortgage. The mortgagee also gave up a sum of Rs. 12,181-55 P. from the amount due towards the later mortgage For convenience, the earlier mortgage will be referred to as mortgage No 1 and the later mortgage as mortgage No 2 It would appear that under Ex, B-1 the vendee undertook to make payments in discharge of mortgages 1 and 2. The vendee also undertook to discharge other mortgages from out of the consideration payable by her which were detailed in the sale deed but they are not relevant for the purpose of this appeal. Suffice it to say, that under Ex. B-1 a sum of Rs. 7,000/- from out of the consideration was payable in full discharge of Mortgage No 1 and a sura of Rs.6,400/- was payable in full discharge of mortgage No. 2. The mortgagee was one of the attestors of the sale deed in favour of the 3rd defendant. It is also not in dispute that the mortgagee passed a receipt in favour of the vendee, that is to say, the 3rd defendant tor Rs. 1.600/- paid by her on 4-6-1956 to the mortgagee towards the amount of Rs. 13,400/-(Rs. 7.000 + Rs. 6,400) payable to him in full discharge of mortgages 1 and 2. Ex. 8-2, is the receipt passed in 3rd defendant's (Vendee's) favour. It may also be stated in this context that the balance payable i. e,, Rs.13,400-Rs. l,600=Rs. 11,800/- was not paid to the mortgagee and it is the evidence led by the 3rd defendant that the balance was not also remitted by money order or deposited in any bank or in the court and it was said that there was no reason for if, The suit was brought claiming Rs 20.000/- giving credit to payments as stated supra and after giving up a certain amount due towards mortgage No, 2.

(3.) The 3rd defendant contested the mortgagee's claim mainly on two grounds firstly, that the mortgagee could claim only Rs, 13.400/- under mortgages 1and 2 by reason of a settlement agreed to by him at the time of the sale deed Ex. B-1 and that he is estopped from making any claim contrary to that settlement and secondly, that the sum of Rs. 1600/- paid on 4-6-1956 has to be credited towards mortgage No. 1, and not towards mortgage No. 2. The learned Subordinate Judge did not accept the said contentions. He found that the agreement between the parties was that Rs.13.400/- shall be received in lull satistaction ot mortgages Nos. 1 and 2 if paid on the day when Ex. B-l was registered or shortly thereafter and not that it shall be received in full satisfaction of the claim irrespective of the time at which the amount shall be paid and that the payment of Rs.1,600/- could be appropriated by the mortgagee towards either of the mortgages in his discretion. The learned Judge also rejected the contention of the 3rd defendant that tne interest claimed was usurious and penal.