GOWRI SHANKER Vs. JAGANNATH DARAK (CROSS OBJECTOR)

JUDGEMENT

(1.) Now that the Appellant 2nd Defendant withdraws his appeal CCCA No. 68/1963, we have to concern ourselves in this proceeding only with the cross-objections filed by the Plaintiff, who is respondent No. 1 in the appeal the other respondent being defendant No. 1, the father of defendant 2. As the Plaintiff-respondent's right to file Memorandum of Cross objections in the appeal preferred by the 2nd defendant is strenuously disputed by the 1st defendant it is necessary to set out in some detail the facts leading to the appeal itself.

(2.) The plaintiff is the mortgagee with possession of a house together with shops, compound, buildings, etc., situated at Chaman Gowliguda, Hyderabad. He brought his action for recovery of this mortgage amount by sale of the hypotheca against the Ist defendant mortgagor. The case of the plaintiff was that the mortgagor had borrowed a sum of Rs. 50,000/- with a stipulation to pay interest at the rate of 6 percent per annum. The period of redemption was fixed as 5 years. He paid a sum of Rs. 2,500/- in all on three occasions, which was adjusted towards interest. As the balance of interest and the principal amount still remain unpaid though the period of redemption expired by 15th October, 1953, he brought the present action.

(3.) The defendant in his written statement dated 24-9-1956 denied the execution of the mortgage deed and his right to mortgage the said property. He contended that the alleged mortgaged properties were purchased in his name with the joint family funds of Gopilal and Ganpathlal and in this way he was a benamidar, and not an absolute owner. As all the members of the Hindu Joint family are interested as Joint owners therein he averred that they are necessary parties to the action. He admitted that he had borrowed in the past some money from the plaintiff but it was only by executing a pronote dated 7-3-1953 therefor. The alleged payments were made only in relation thereto. He did not borrow any amount by executing a mortgage deed nor was there any necessity for borrowing such a huge amount. The mortgage deed is therefore untrue and unsupported by consideration and unenforceable in law. His further contention was that the plaintiff is a member of an unregistered firm of money-lenders doing money-lending business in the name and style of Ramsukh Dass and Chaithandas. He is indeed a money-lender within the meaning of the Hyderabad Money Lender's Act. As he is not a licence-holder nor has he maintained any accounts as contemplated by that Act, the suit is liable to be dismissed.