BHOGARAJU VENKATRAMA JOGIRAJU Vs. ADDEPALLI SESHAYYA

JUDGEMENT

(1.) The plaintiffs who have preferred this appeal against the decision of the Subordinate Judge s Court of Ellore, are the sons of the sixth defendant who inherited the lands in suit and other property from her father Ramjogi, after the death of her mother Seshatmma, in 1883, Ramjogi himself having died in 1873. The suit is for a declaration that the decree in Original Suit No. 540 of 1903 on the file of the District Munsif of Ellore was not binding on the first plaintiff who was the second defendant in that suit, and for a declaration that in any event, the decree and the Court sale in execution thereof of the land in suit could not affect the reversionary right of the plaintiffs after the death of the sixth defendant. Original Suit No. 540 was instituted by the first defendant against the sixth defendant, her husband Venkiah and her elder son the present first plaintiff on a bond (Exhibit II, dated 6th October 1902) which was itself a renewal of an earlier bond (Exhibit III, dated 3rd April 1894). Exhibit III was executed by the sixth defendant for Rs. 1,200 mortgaging about 98 acres of land as security for its repayment with interest at 1 1/8 per cent, per mensem, in eight instalments before 10th March 1902, The purpose of the loan was stated to be for erecting a house (Rs. 1,035) and the discharge of sundry email debts. Exhibit IE was executed by the sixth defendant and by the first plaintiff who was then a minor and was represented by his father. The rate of interest provided was seven-eighths per cant, per mensem, and repayment was to be made within a year after the date of the bond. Default having been made in payment, the first defendant sued both these executants. An ex parte decree was first passed in first defendant s favour, but it was subsequently set aside and finally the case was compromised between the parties. Exhibit B was the razi petition put in by all the parties to that suit. Although the amount claimed in the suit was only Rs. 2,098-1-7 the compromise provided for the payment of Rs. 3,600, but it was to be made in 18 years in equal instalments without interest, on the 15th February of: each year, it contained, however, a provision that "in case of default of payment of any one or two of the instalments the plaintiffs should recover the whole amount remaining due at the time through Court irrespective of the insfealmerits that have yet to expire, by means of sale of the said mortgage properties, by means of other property belonging to the defendants and on their own personal liability, together with costs of sale." None of the instalments was paid and the first defendant brought part of the mortgaged property to sale, 26 1/2 acres out of it realised Rs. 1,635, the first defendant himself being the purchaser. The remainder of the mortgage property had not been sold at the date of this suit.

(2.) The plaint alleges that the compromise and the decree in pursuance of it were the result of collusion between the first defendant and one Venkataramiah, the plaintiff s third witness, who noted as first plaintiff s next friend in that suit.

(3.) Defendants Nos. 2 to 5 are impleaded as the undivided brothers of the first defendant. The first defendant contended that there was no collusion between him and Venkataramiah, that the compromise was a fair settlement of the suit and beneficial to the first plaintiff and was sanctioned by the Court. He alleged that the debt itself was binding on the estate represented by the sixth defendant as it was borrowed for the payment of Rs. 200 kist due on the suit lands and for the reconstruction of a house which belonged to the plaintiff s maternal grandfather, and in which the plaintiffs were residing.