THIRUVENGADAM PILLAI Vs. PGNANASAMBANDAM PILLAI

JUDGEMENT

(1.) The plaintiffs are the appellants. They sued for a declaration that a mortgage (Ex. 1) executed by defendant 3, a Hindu widow, of her husband's lands in favour of defendant 1 was void as against the n, the husband's reversionary heirs. The husband died in 1896. In 1897 the widow executed a mortgage Ex. 6-f in favour of one Rangasami who was the father-in-law of defendant 2. This was for securing a loan of Rs. 2,000 and the instrument recites that the money was required to discharge debts due by her deceased husband. It appears that the widow later sold some plots of land from time to time and that the sale proceeds were used to reduce the amount of the mortgage debt due to Rangasami. Subsequently, the mortgagee's rights became vested in defendant 2, who brought a suit upon the mortgage against the widow. On 17 January 1913 defendant 2 obtained ex parte a preliminary decree for the recovery of Rs. 2,373-12-0 then due, together with interest at 9% per annum on Rs. 1,300, the balance of principal due from date of plaint to 17 July 1913, the date fixed for payment, and with further interest at 6% on the whole amount from 17 July 1913 until payment. It was for the purpose of discharging the decree amount, which by that time had swollen to Rs. 2,845, that on 9 September 1914 the widow executed Ex. 1, the suit mortgage in favour of defendent 3

(2.) The plaintiffs impeach this mortgage upon two grounds. First, they say it is a fictitious transaction, part of a scheme of the widow and her mother-in-law to transfer the husband's lands to the family of defendant 2 in fraud of the reversionary heirs. We do not think that the evidence sustains this allegation. The plaint avers nothing more in support of it than that defendant 1 is a cousin of defendant 2's husband and was under obligations to Rangasami, defendant 2's father-in-law, who had looked after defendant 1 during his minority. The defendant 1 gave evidence at the trial and he has deposed that, in pursuance of his contract under Ex. 1 he did pay off the decree debt due to defendant 2; that he did not do this by a cash payment, but by adjusting this debt against a debt due by defendant 2 to him and his family. His story is corroborated by documentary evidence. Ex. 2 is a pro-note dated 8 April 1916 given by defendant 1 to defendant 2 for a loan of Rs. 8,600. Ex. 3 is a receipt, given on the same date by defendant 2 to defendant 1 for payment of Rs. 3,263-13-0, which is stated to be the principal and interest up to date in respect of the amount due by defendant 3 under the mortgage decree. Defendant 2 has accepted the genuineness of her signature to this document, but she has no recollection of the circumstances in which she signed it, as she says her husband managed all business and money transactions. Ex. 2 bears an endorsement (Ex. 2-a) dated 11 February 1918 that the note had been discharged. A number of other documents Exs. 4, 5 and 8 support defendant 1's story that the mutual debts of defendant 1's and defendant 2's family were adjusted. The learned Subordinate Judge has discovered no reason for doubting the genuineness of these documents or of the transactions which they evidence. None is apparent to us. In fact, the evidence with regard to them is all one way.

(3.) The plaintiffs second ground is that the mortgage Ex. 1 stands in no better position than the mortgage Ex. 6-f and that if it can be shown that the earlier mortgage and the decree upon it were attributable to the widow's improvidence in alienating property to pay debts which could and ought to have been discharged, from income in her hands, at least with regard to the interest, the reversioners would not be bound thereby. Two issues were framed in the lower Court, viz.: (1) Was the mortgage, Ex. 6-f binding upon the husband's estate and (2) were the plaintiffs entitled to question the validity of the decree in respect of that mortgage.