A RAJAGOPALA AIYAR Vs. SRAMACHANDRA AIYAR

JUDGEMENT

(1.) This appeal arises out of a suit filed on. the original side of this Court by the respondent for the redemption of a mortgage. The case presents some unusual features and it is necessary in order to appreciate the questions involved in the appeal to state in detail the history of the case. The respondent's father, S. Subramania Aiyar, was indebted to the appellants father, Ayyaswami Aiyar, on two promissory notes. Ayyaswami Aiyar, died on the 14 September, 1919 and Subramania Aiyar on the 15 October, 1919. In 1920 the appellants instituted a suit against the widow of Subramania Aiyar and D. Venkatarama Aiyar and M. Gopala Aiyar, who had been nominated by him as the executrix and the executors of his will. On the 4 March, 1921, a decree was passed in favour of the appellants for Rs. 2,939-11-0. In execution of that decree the appellants attached the property now in suit and bought it at the sale held in pursuance of an order of the Court passed in the execution proceedings. The sale certificate was issued to them on the 22nd January, 1925 and the appellants obtained possession on the 14 May, 1925. The present suit was instituted by the respondent on the 14 April, 1937.

(2.) The respondent's father had insured his life with the Gresham Life Assurance Society, Limited, and with the Oriental Government Security Life Assurance Company, Limited. The assured assigned to his wife and the respondent, who is his eldest son, the policy issued by the former company and the policy issued by the latter company to them and to his three other sons. In the Court below it was taken that the assignment of the second policy was only to the sons of the assured, but we have allowed the appellants to put in an extract of the Assignment Register and this establishes that the widow was also one of the assignees. Subramania Aiyar was indebted to a person named Johnstone and to a Mrs. Booth. To Johnstone he owed Rs. 5,145-13-4 and to Mrs. Booth Rs. 7,000. To secure the debt to Mrs. Booth he mortgaged to her the property now in suit. On the 25 October, 1920, when the debt due to Mrs. Booth was discharged, there was owing Rs. 7,204-2-8. It is the respondent's case that the debt was repaid to the extent of Rs. 4,000 out of the moneys received from the Gresham Life Assurance Society, Limited and the balance of Rs. 3,204-2-8 out of the moneys received from the Oriental Government Security Life Assurance Company, Limited. The moneys obtained from the two Insurance Companies did not form part of the deceased's estate. The policies having been assigned by the testator during his lifetime, on his death the assignees became entitled to receive payment by reason of the assignments, not by reason of his will. On the ground that the mortgage in favour of Mrs. Booth was discharged out of the moneys received from these insurance companies in which he had an interest, the respondent claims that he is entitled to the benefit of the security held by her and to consequential relief.

(3.) Somayya, J., who tried the suit held that of the Rs. 4,000, which was paid out of the money received from the Gresham Life Assurance Society, Limited, Rs. 2,000 came from the respondent. Of the Rs. 3,204-2-8, which was paid out of the money received from the Oriental Government Security Life Assurance Company, Limited, the learned Judge held that one- fourth, namely Rs. 801-0-8 was the respondent's money. As the respondent had only a one- fifth share, the figure should have been Rs. 640-12-11. Having found that the respondent had paid Rs. 2,801-0-8 towards the discharge of Mrs. Booth's mortgage, Somayya, J., gave him a decree for this sum with interest at seven per cent. per annum, and directed that the property be sold in default of payment. The sale was however avoided as the appellants paid the money into Court.