MOLLAYA PADAYACHI Vs. KRISHNASWAMI IYER

JUDGEMENT

(1.) The 4 and 5 defendants are the appellants.

(2.) The plaintiff sued to recover Rs. 6,669- I-O with costs and further interest due on a deed of mortgage dated the 27 of January, 1916 executed by the 1st defendant in his favour for Rs. 5,500 with interest at 9 per cent, per annum. It is alleged that the amount was repayable within the 27 of January, 1917, and that, in default of payment, interest at 12 per cent. was chargeable from the date of the bond and was to be added to the principal with annual rests.

(3.) The 1 defendant is the son of the 2nd defendant. The case for the plaintiff is that the mortgaged properties belong to Murugayee, the mother of the 1st defendant and the wife of the 2nd defendant, that Murugayee who died on the 7th January, 1916, executed a will, dated the 2nd of April, 1914, whereby she bequeathed the properties to the 1 defendant, that the 1 defendant became the exclusive owner of the properties, that in execution of the decree in O.S. No. 55 of 1914 on the file of the Tanjore Additional Sub-Court, which was passed against the 1 and 2nd defendants and the deceased Murugayee in favour of Dandapani Vaithiyan the properties were brought to sale and purchased by the decree-holder on the 20 of January, 1916, that with a view to set aside the sale, the 1 defendant who was the owner of the properties which were sold, executed the plaint mortgage deed, that the amount advanced by the plaintiff was deposited in Court by the 1 defendant towards the amount due under the decree and the Court sale was set aside on the 1 of February, 1916, and that the money advanced on the suit mortgage thus satisfied the decree of Court against the 2nd defendant also and went to set aside the Court sale. The plaintiff states that the 2nd defendant has no interest in the mortgaged properties, that in case the 2nd defendant claims the mortgaged properties as joint properties, the mortgage is binding on him as the 1 defendant was acting as the manager of the family and borrowed the money for preserving the estate and for satisfying the decree against the 2nd defendant, that in any event the 2nd defendant was bound in law to reimburse the plaintiff to the extent to which he, the 2nd defendant was benefited by the amount advanced for the mortgage and that he is liable to pay the plaintiff half the amount deposited in O.S. No. 55 of 1914, as the decree was personally against the 2nd defendant, and his wife Murugayee and against the family properties of the 1 defendant.