P SAMI GURUKKAL Vs. THIRUPATHIA PILLAI

JUDGEMENT

(1.) The question argued in this appeal relates to the effect to be given to the decree in Original Suit No. 43 of 1911 on the file of the Court of the Subordinate Judge of Tanjore in so far as the 14 defendant, the appellant before us, is concerned. The plaintiff in the suit claimed under a deed of mortgage dated the 15 November 1907 executed by the first defendant's father, Suryanarayana Pandarathar in his favour in the following circumstances. One Sena Yena Nagappa Chetti obtained a mortgage-decree against the said Suryanarayana in Original Suit No. 54 of 1903 on the file of the Sub-Court, Tanjore. When the decree-holder brought the mortgaged property, the village of Kovilur, to sale, it was arranged that the judgment-debtor should deposit in Court a sum of Rs. 35,000 towards the said decree and he, for the purpose of raising funds, disposed of the kudiwamm right in various plots iv the village and realised a sum of Rs. 20,000 and deposited the same in Court, and he borrowed the balance of Rs. 15,000 from the plaintiff executing in his favour the mortgage-deed referred to above. The 14 defendant was the alienee of the kudiwamm right of Items Nos. 123, 118 and 126 in the village of Kovilur. The right was conveyed by a deed bearing date the 13th November 1907, that is, two days previous to the mortgage in favour of the plaintiff. The deed of mortgage recites the facts relating to the decree of Nagappa Chetty, the realization of Rs. 20,000 by sale to tenants of the kudiwaram, right belonging to the Zemindar in several plots, and the deposit of the said amount in Court. The deed further mentions that the balance of Rs. 15,000 was borrowed from the plaintiff on the security of the village of Kovilur. In regard to the extent of the right conveyed to the mortgagee, the following passage in the document is very material:--"Not only shall the sale of kudikaniaehi (occupancy rights) and the grant of permanent lease for the fixed assessment for melvaram already made by us until now in Kovilur village which is mortgaged under this document in order to discharge the said Nagappa Chettiar's debts be binding on you but any sale of kudikaniaehi and the right of melvaram thirwa not less than those now fixed in the said village and the grant of permanent lease made by us in future for payment of this mortgage amount shall be binding on you. "The rights of the mortgagee are, therefore, expressly made subject to the alienations of the kudiwaram right effected previous to the date of the mortgage, namely, 15 November 1907. The 14th defendant claims that both under the general law as well as under the special terms of the mortgage-deed, his rights in virtue of the alienations in his favour are paramount to the claim of the mortgagee in the suit. So far, the case presents no difficulty and the rights of the plaintiff would be undoubtedly subject to those of the 14 defendant and the claim of the plaintiff to priority would be clearly untenable. But some complication is introduced by the manner in which the pleadings were prepared and the trial was allowed to proceed.

(2.) Paragraph 4 of the plaint refers to the mortgage in favour of Sena Yena Nagappa Chettiar dated 7 May 1898, the decree obtained by him in Original Suit No. 54 of 1903 and the bringing to sale of the village of Kovilur in execution of the decree.

(3.) Paragraph 5 states that the first defendant's father applied to the plaintiff for a loan of Rs. 15,000 for payment to the decree-holder in Original Suit No. 54 of 1903 and that the plaintiff paid the amount into Court on 4 November 1907 on the understanding that a mortgage should be executed in his favour in respect of the village of Kovilur.