MALAYANDI GOUNDAN Vs. SUBBARAYA VANAVARAYA GOUNDAN

JUDGEMENT

(1.) This is a suit on a mortgage executed by the 1 defendant. The 2nd defendant is the undivided son of the 1 defendant. The plaintiffs allege that the mortgage is enforceable against the son's interest in the family property. The 1 defendant did not defend the suit. APPEAL NO. 115 of 1906.

(2.) The mortgage sued on, Exhibit A, recites the receipt of Rs. 3,000. It contains no reference to any earlier transaction, but the judge finds, and this apparently was not contested at the hearing of the appeal, that this mortgage was given in renewal of an earlier mortgage, Exhibit IX, for Rs. 1,500. It is not contended that the Rs. 3,000 referred to in Exhibit A was advanced when that document was executed. The plaintiff's case is that Rs. 2,200 was due from the father under Exhibit IX and a further advance of Rs. 800 was made at the time of the execution of Exhibit A. The 1 defendant admitted in his evidence the advance of Rs. 500 on that date. The written statement does net afford us much assistance as to the defence on which the 2nd defendant relies, but the defence put forward on his behalf in the hearing of the appeal was that the original debt under Exhibit IX was contracted for immoral purposes, and the original mortgage and the renewal thereof were consequently not binding on the family property; that the further advance made at the time Exhibit A was executed was for the expenses of the marriage of the 1 defendant's daughter and that this was a purpose not binding on the family. The District Judge gave a mortgage decree for the amount claimed less the Rs. 300, the alleged further advance under Exhibit A. The 2nd defendant appeals against the decree and the plaintiffs appeal against so much of the decree as disallowed the Rs. 300.

(3.) There was a good deal of argument with reference to the question whether the admissions made by the 1 defendant, Exhibit G, in a proceeding in an earlier suit in which the mortgage sued on was one of the items of property in question, were evidence against the son, and as to whether the recital in Exhibit B A was evidence against him. We do not think it necessary to's discuss these questions since it seems to us that the decree in favour of the plaintiffs must be upheld on the ground that it was for the 2nd defendant to make out that (1) the moneys were not in fact advanced, or, (2) if they were, that he was not liable for the original mortagage-debt under the pious obligation doctrine and that there was no family necessity for the further advance.