(VADREVU) VISWASUNDARA RAO BAHADUR Vs. BALANTRAPU PALLAMARAJU

JUDGEMENT

(1.) The appellant got a decree against the father of the respondent. During execution proceedings the father died and the respondent was brought on record as his legal representative. He is his undivided son. When the appellant sought to bring certain properties to sale the son claimed that they were his self-acquired properties and so not liable. The executing Court dismissed the claim, but it was allowed in appeal and this second appeal is preferred against that decision.

(2.) Although the appellant asserted that the property was ancestral the evidence shows, and it is not disputed before me, that it originally belonged to the maternal grandmother of the respondent who assigned it by Ex. A in 1914 to the respondent then a minor, with his father as guardian. But the appellant asserts that the property was thrown into the common stock by the respondent. The onus of proving this is, of course, on the appellant and he relies mainly on the mortgage, Ex. 1, dated 5 August 1921. By this mortgage the land in question together with ancestral property was jointly mortgaged to a third party by the respondent and his father. The respondent executed the deed as a major. He describes himself as the undivided son of his father and says that on account of our necessity" We have borrowed of you a sum of Rupees 2400. We shall pay interest thereon at As. 12 per cent per mensem and we shall pay the annual interest on this date every year etc.

(3.) Then we come to the most important part, the description of the property mortgaged. First the ancestral property is described: We have mortgaged to you under this deed the inam land acquired by our ancestors and which is in our possession and enjoyment as of right.