KARAN RAJ Vs. CHUNNILAL

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendants against the judgment and decree of the District Judge, Balotra, dated the 21st December, 1957, in a suit for mortgage money and arises under circumstances presently to be mentioned. The plaintiffs have also filed a cross-objection. I propose to dispose of both these matters by a single judgment. The appellant Udaichand having died during the pendency of this appeal is represented by the other defendant Nath-mal who was already on the record and by Karan-raj, a minor son of Nathmal under the latter's guardianship.

(2.) THE case of the plaintiffs was that on the 17th May, 1949, defendant No. 1 udaichand as manager of the joint Hindu family consisting of himself and his son nathmal had found a sum of Rs. 5500/- to be due to the plaintiffs and as a security for the repayment of this debt made a possessory mortgage of the suit house in favour of the plaintiffs by a mortgage-deed Ex. 5. It was agreed between the parties that the said defendant would pay interest at the rate of eight annas per cent. per mensem on the aforesaid sum and, that whatever rent is realised from the house by the plaintiffs will be credited towards the interest on the mortgage money. It was further agreed that the mortgage was to be redeemed after a period of four years. By a rent-note of the same date, that is, the 17th may, 1949, the said defendant took the suit house on rent from the plaintiffs and agreed to pay a rent of Rs. 27/8/- per mensem for the same. The plaintiffs' case further was that the defendant did not repay the mortgage money as promised at the end of the term of four years and that they had been able to realise a sum of Rs. 935/- only towards interest upto Smt. 2008 Falgun vadi 5th, and, consequently, a sum of Rs. 5500/- as principal plus a further sum of rs. 107/2/8/- as interest at the stipulated rate was due to them from the defendants. It was further alleged by the plaintiffs that defendant No. 2 had executed an agreement on Jeth Vadi 7 Smt. 2005 accepting the responsibility for this mortgage and consequently he was also personally responsible for the return of the mortgage-money together with interest. According to the plaintiffs, the value of the mortgaged house had fallen considerably and therefore it did not constitute adequate security for the loan outstanding against the defendants, and, therefore, they had given a notice to the defendants on the 24th November, 1953, for furnishing additional security or for the return of the entire amount outstanding against them but without, any result. Consequently, the plaintiffs instituted the suit, out of which this appeal arises, on the 17th May, 1955, for the return of the mortgage-money with interest amounting to Rs. 6572/8/- or in default for sale of the house in suit, and in case the proceeds of sale were found to be insufficient, for the amount of the decree, then a personal decree was prayed for. In the alternative, the plaintiffs also prayed that they be put in possession of the suit house and such possession be ordered to continue until the defendant should pay the entire mortgage money together with the interest such as may be payable by them in accordance with the terms agreed between the parties.

(3.) THE defendants resisted the suit on all possible grounds including the invalidity of the registration of the mortgage and the want and the fictitiousness of the consideration. Both these pleas were upheld by the trial Judge with the result that the plaintiffs' suit was thrown out. The plaintiffs then went up in appeal to the learned District Judge, Balotra, who upheld the objection as to the invalidity of the registration. The learned Judge, however, held that the finding of the trial Court that the transaction between the parties as evidenced by the deed of mortgage was bad for lack or sham nature of the consideration was entirely erroneous and his conclusion on this aspect of the case was that the defendant upon whom the burden of proving want of consideration lay had failed to prove that the mortgage deed was without consideration and that it had been executed by them fictitiously in order to save the house from the clutches of their creditors and that on the contrary the evidence produced in the case was good enough to establish that the deed was executed in lieu of the consideration mentioned therein. Having so found, the learned Judge went on to hold that though the mortgage-deed failed for defective registration, there was no legal bar against the plaintiffs to recover the debt advanced on the basis of this deed as if it was a simple money bond on the principle that a loan prima facie involved a personal liability to repay, and in this view of the matter, the learned Judge decreed the plaintiffs' suit for Rs. 6572/8/- in favour of them with costs of both the Courts. The learned Judge, however, did not allow any interest pendente lite or future on the principal sum. Consequently, the defendants have come up in second appeal against this decree, and their prayer is that the plaintiffs' suit should have been dismissed. On the other hand, the plaintiffs have filed a cross-objection, and their prayer is that the learned Judge should have allowed pendente lite and future interest to the plaintiffs. I shall take up the defendants' appeal first.