C S VADAMALAI PILLAI Vs. PSUBRAMANIA CHETTIAR

JUDGEMENT

(1.) This suit was brought on the strength of an equitable mortgage made by 1 defendant in favour of the plaintiff. Defendants Nos. 2 to 6 axe the sons of first defendant. Defendants Nos. 7 and 8 are puisne mortgagees. Defendants Nos. 1, 2 and 5 are now dead and defendants Nos. 3, 4 and 6 prefer this appeal.

(2.) The evidence on record shows that the plaintiff was lending money to the 1 defendant in a series, of transactions commencing from the 24 of August 1907. Every time that accounts were settled between he parties a promissory note was executed. On the 13 of October 1913 the 1 defendant deposited title-deeds of landed property to secure a debt of Sections 10,900 carrying interest at 12 per cent due on the 12 October 1913. On the 1 of October 1912 there was a consolidation of intermediate loans and on the 4 October 1913 there was a fresh consolidation for which a promissory-note, Exhibit C, for Rs. 13,900 was executed. This was followed, on the 7 of October 1913 by a letter, Exhibit E, giving particulars of the title- deeds deposited for the debt of Rs. 13,900 Exhibits C(1) and C(2) are promissory-notes for the interest that subsequently accrued. They are dated 17 February 1915 and 20th September 1915 respectively. Finally, Exhibit E(2), a letter dated the 20 September 1915, was written by the 1 defendant to the plaintiff stating that he consented to the title-deeds and other documents already deposited being held as security for interest amounting to Rs. 812 and odd lent upon a promissory-note of the same date, viz., Exhibit C(2). The deposit of title-deeds having been made in the Presidency Town of Madras was quite regular and valid according to Section 59 of the Transfer of Property Act.

(3.) In appeal the following contentions have been raised. First, that the loan is not true, that the transactions between the plaintiff and the 1 defendant were brought about in order to shield the property from his unsecured creditors and that being pressed by them he filed a petition to be declared an insolvent on the 23 of March 1916. Secondly, the son's interest is not affected by this equitable mortgage, as the father did not contract it for an antecedent debt in the sense that these words have been used in recent Privy Council decisions. Thirdly, as the father purported to be dealing with his own property, he did not make the mortgage in his capacity of manager of the joint family and, therefore, it cannot bind the son's share. Fourthly, if the mortgage is partially effective over the father's interests, the plaintiff can only proceed against the son's shares after exhausting his remedies against the father's share. Fifthly, Exhibits E and E(2), which are letters referring to the deposit of title-deeds, are invalid for the purpose of creating a mortgage as they have not been registered. In the lower Court an attempt was made to prove that the debts were incurred for illegal and immoral purposes. Mr. A. Krishnaswami Aiyar for the appellant frankly stated that he could show that the 1st defendant was leading an immoral life, but he admitted that he could not connect any particular debt with immorality. Therefore, the defence which formed the subject of the 4th issue in the lower Court has not been pressed in appeal.