LAKSHMANA NAICKER ALIAS LAKSHMANASWAMI NAICKER Vs. JAYARAM NAICKER

JUDGEMENT

(1.) S.A. No. 887 of 1931. The plaintiff is the appellant. This second appeal arises out of a suit filed by the plaintiff for the recovery of a certain amount alleged to be due under the mortgage bond Ex. A, which was executed by defendants 1 and 2 in favour of the plaintiff and his deceased brother Parthasarathi Naicker, the husband of the 4 defendant. The plaintiff's case is that, though this mortgage bond was taken in the names of himself and his deceased brother, he (the plaintiff) is now entitled to recover the entire amount, as his deceased brother has relinquished his interest in that bond, when a sum of Rs. 1,500, which belonged to him by virtue of the partition arrangement and which was left in the plaintiff's hands, was subsequently taken back by him. In support of this plea, reliance was placed upon a document, Ex. A-2, which purports to be a receipt executed by the 4th defendant's husband in favour of the plaintiff on 26 September, 1923. That document runs thus: Out of the amount got by me for my share in the partition, dated 17 September, 1921, the amount paid to you by me is Rs. 1,500. As I have this day received from you this sum of Rs. 1,500 in cash, you shall yourself recover the sum of Rs. 1,500 advanced by you and me together to R. K. Jayaram Naicker and K. Palanisami Naicker on the mortgage of land. I have no right whatever to the said mortgage deed. To this effect is this receipt written and given by me with consent.

(2.) There is no doubt that the suit mortgage deed is the one referred to in Ex. A- 2. As regards the genuineness of this document, the lower appellate Court has distinctly found in paragraph 4 of its judgment that Ex. A-2 was really executed by the 4 defendant's husband to the plaintiff on 26 September, 1923. This finding is based upon the evidence adduced in this case, which the lower appellate Court saw no reason to disbelieve. This finding of fact has to be accepted in this second appeal.

(3.) The only difficulty is as regards the question whether Ex. A-2 is admissible in evidence in the absence of registration. There is, no doubt, that, so far as it evidences an extinguishment of the 4 defendant's husband's right in the mortgage security, it would be inadmissible in evidence and inoperative as against him. But it does contain a clear admission of the transfer of his interest in the mortgage debt itself, for it specifically says that the plaintiff alone is entitled to collect the full amount of the debt, namely, Rs. 1,500. The lower appellate Court evidently thought that this document could not be acted upon for the purpose of enabling the plaintiff to realise the mortgage amount by applying in his own right for the sale of the mortgaged property by way of enforcement of the security. In this view, it gave a decree for the sale of the mortgaged property in favour of both the plaintiff and the 4 defendant. It is now contended by the learned Advocate for the appellant that in the light of the recent decision of the Privy Council reported in The Imperial Bank of India V/s. The Bengal National Bank, Ltd. (1931) 61 M.L.J. 589 (P.C.) the plaintiff can be given a declaration of his sole right to the mortgage debt itself, apart from his interest in the immoveable property given as security for the debt. The facts of that case appear to be on all fours with the facts of the present case. The observations of their Lordships are to the effect, that the mortgage debt as such can be dissociated from the security for the repayment of the debt; and if there is no bar to the admissibility of a document for the purpose of showing the transfer of the debt itself, apart from the security, the appropriate relief, which ought to be given to the plaintiff, should not be denied to him. At page 594 it is observed thus: The debts may be secured either on immoveable property or on merchandise; they may be wholly secured or partly secured; the security may have been given when the debt was created or later; but in any case, the debts exist as moveable property and do not, if secured, become identified with the security or transformed into land in the one case or merchandise in the other. The separation between debt and security is well established; the creditor is entitled to take a judgment for the debt without having recourse to his security.