YELAMARTHI JAYA LAKSHMI Vs. DEVILAL JANWAR

JUDGEMENT

(1.) FACTS in brief: the unsuccessful plaintiff in O. S. No. 36/88 on the file of II-Additional District Judge, East Godavari District, Rajahmundry is the appellant. The defendants therein are the respondents in this appeal. The suit was originally instituted as O. S. No. 158/84 on the file of Sub-Court, Rajahmundry and the same was transferred and re-numbered as O. S. No. 36/88 on the file of II-Additional District Judge, East Godavari District, Rajahmundry. The appellant - plaintiff died during the pendency of the appeal and appellant No. 2 was brought on record as the legal representative of the sole appellant by order dated 3. 11. 2003 in CMP No. 26023 / 2003. The appellant-plaintiff filed the suit against the respondents-defendants for recovery of Rs. l,98,215-25ps. , with subsequent interest on the strength of equitable mortgage. The borrowing of the amounts on the strength of promissory note and also creation of the mortgage by deposit of title deeds had been pleaded by appellant - plaintiff. Incidentally, the stand was taken that 1st respondent - 1st defendant borrowed the amount for the purpose and on behalf of the joint family for family business. The 1st respondent - 1st defendant had taken a stand that he borrowed those amounts in individual capacity and also further had taken a stand that the plaintiff just requested the 1st defendant to produce the solvency and thus the title deeds were produced and never there was any intention to create mortgage by deposit of title deeds and further stand had been taken that even otherwise the 1st defendant would be entitled to only l/6th share in the plaint schedule property. In the light of the respective stands taken by the parties, the learned II-Additional District Judge, West Godavari District, Rajahmundry having settled the issues, recorded the evidence of P. W. I, P. W. 2, P. W. 3 and also D. W. I, marked Ex. A. l to Ex. A. 18 and Ex. B. l to Ex. B. 15 and came to the conclusion that the appellant - plaintiff miserably failed in proving the mortgage by deposit of title deeds and ultimately dismissed the suit directing the parties to bear their own costs. Aggrieved by the same, the unsuccessful plaintiff preferred the present appeal and since the plaintiff died, at present the legal representative - 2nd appellant is prosecuting the appeal. Pleadings of the parties:

(2.) AVERMENTS made in the plaint: The plaintiff made the following averments in the plaint : " The first defendant is the father and 2 and 3 defendants are his sons. Defendants 1 to 3 constitute of an undivided Hindu Joint Family. The defendants' family is a business family since the time of their forefathers. The first defendant is the joint family manager and 2 and 3 defendants are the male members in the family. The first defendant for the purpose of the business that he was carrying on borrowed the following amounts from the plaintiff : 4. 11. 1970 Rs. 15,000.00

(3.) AVERMENTS made in the Additional written statement filed by the defendants: