GOPALASWAMI RAJAPIRIYAR Vs. DNARAYANASWAMI UDAYAR

JUDGEMENT

(1.) Three questions of law arise in this appeal, but before stating them we will set out the material facts. On the 15 April, 1912, the appellant's father mortgaged immovable properties belonging to the joint family of which he was the head in favour of the father of the first respondent to secure the repayment of a loan of Rs. 3,500. The deed stipulated that repayment should be made at the end of three years from the date Of the deed. On the 26th December, 1912, the mortgagor died and was survived by his two sons, Namasivaya and the appellant, who remained joint in estate: Namasivaya died in the month of January, 1919. On the 5 November, 1923, the mortgagee filed a suit (O.S. No. 72 of 1923) in the Court of the Subordinate Judge of Kumbakonam to enforce" repayment of the amount due under the mortgage. He died during the pendency of the suit, and his son, the first respondent was substituted as the plaintff.

(2.) The mortgagee did not specifically ask for a personal decree against the appellant in the event of the mortgaged properties failing to realise sufficient to discharge the dept in full, but the plaint was very widely drawn. In paragraph 6, the mortgagee averred that the appellant and his son, the second respondent, were in enjoyment of the properties in suit and here added the following statement: Even though they have an interest in the plaint properties, they are bound to discharge the plaint amount, etc., from out of the mortgaged properties and other properties belonging to the family inasmuch as the plaint mortgage bond has been executed by Palaniyandi Rajapiriyar, father of the first defendant and grandfather of the second defendant, for paying off prior debts which had been contracted for the purposes of the family and for meeting the necessary expenses of the family. The plaint concluded with four prayers, namely, (1) that the amount due oh the mortgage should be determined and the defendants directed to pay it on or before a date to be fixed by the Court; (2) that in default, the mortgaged properties should be sold and the proceeds paid to the plaintiff; (3) that the costs should be paid by the defendants; and (4) that the plaintiff should be awarded " such other reliefs as may be deemed proper in the nature of this suit."

(3.) On the 21 December, 1927, a preliminary mortgage decree was passed for a sum of Rs. 11,491-0-6. The appellant and the second respondent appealed to this Court, which varied the decree of the Subordinate Judge. this Court held that there was due on the mortgage the sum of Rs. 13,396-4-0 and that the appellant and the second respondent, his son, were liable for Rs. 3,356-3-10 to the extent of their interest in the properties mortgaged. On the 12th December, 1934, the Subordinate Judge passed a final decree in accordance with this Court's judgment and eventually the properties were brought to sale. The sale did not, however, realize sufficient to discharge the debt in full. On the 12 August, 1937, the first respondent, as the decree-holder, applied for a personal decree for Rs. 10,512-1-6 against the appellant and the second respondent. This claim was subsequently reduced to Rs. 1,500 and on the 31st March, 1942, a personal decree for this amount was passed against the appellant. In his application for a personal decree the first respondent averred that the claim for the personal decree was in time, inasmuch as Namasiyaya with full authority from the appellant and the second respondent had acknowledged that the mortgage debt was due.