RAMAYYA Vs. SUBBAIAH

JUDGEMENT

(1.) This appeal raises a difficult question of law. The plaintiffs are the appellants. They filed a suit for recovery of Rs. 993-12-0 on foot of a mortgage executed by R. Tippanna, the father of the 1st defendant and the husband of the,2nd defendant in favour of the plaintiff,' father on 18-4-1925. The 3rd defendant was impleaded as the purchaser of the mortgaged properties. The plaintiffs scaled down the amount under the provisions of Madras Act IV of 1938 and claimed that Tippanna was liable to pay a sum of Rs. 600/- being the cash borrowed under the promissory notes preceding the mortgage. He also claimed interest thereon at Rs. 0-0-1 per rupee per mensem from 1-10-1937. Defendants 1 and 2 contended that they were not liable as the personal liability under the morlgage document was barred by limitation, and as the mortgaged propeties had been purchased by the ?rd defendant. The 3rd defendant pleaded that if the mortgage debt was properly scaled down no amount would be due by him.

(2.) The District Munsif of Anantapur upheld the contention of defendants 1 and 2 that they were not liable to pay any amount. He followed the decision in Nachiyappa Chettiar v. Marappa Goundan and held that the 3rd defendant was liable to pay the principal amount due under the mortgage bond and was not entitled to trace back the debt to the amount borrowed under the promissory notes. As the plaintiffs had claimed only a sum of Rs. 600/- and not the full principal amount due under the mortgage bond, he restricted the decree to the sum prayed for.

(3.) On appeal, the Subordinate Judge of Anantapur held that the 3rd defendant was entitled to trace back the debt to the amounts lent under the orginal promissory notes, that as the plaintiffs had not produced their account books and had failed to prove what amounts were originally lent, "the presumption that double the amount of the original debt has been paid by the mortgagor to the mortgagee has to be drawn against the plaintiffs". In the result, he dismissed the suit. The plaintiffs have consequently filed the Second Appeal.