KANCHARI MODHUGARI NARAYANA Vs. NANDIGAM VENKATARAMANNA PATNAIK

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the decree of the Subordinate Judge of Berhampore in O.S. No. 4 of 1926 dismissing their suit. The suit was filed on foot of a simple mortgage bond (Ex. A), dated 1 May 1901,, executed by Nandigam Kamanna Patnaik (father of defendants 1 to 4) for himself and as guardian of defendant 2 who was then a minor, in favour of K.M. Appayya (father of plaintiffs 1 to 3 and grandfather of plaintiff 4) and K.M. Mokhalingam (son of Appayya and father of plaintiff 4). Under Ex. A the mortgagors had obliged themselves to deliver 26 garces of paddy with interest also payable in kind which works at 36 per cent per annum. The document provides that interest should be paid on the 15 of Pusha Sudha of every year and that the principal should be paid in January 1906. But there is a clause which provides that on the failure of payment of any instalment of interest the whole quantity due under the document should be repaid. The document bears endorsements of delivery of a garce of paddy on each of the following dates, viz. 3 January 1904, 14 January 1911 and 12 January 1914. These endorsements have been found to be genuine by the Court below. It has also been found that the attestation to the third endorsement was not true and was added after the endorsement was made. On the ground that this is a material alteration the Subordinate Judge dismissed the suit. The plaintiffs appeal.

(2.) Defendant 5 purchased the equity of redemption under the sale deed Ex. 22 dated 5th January 1908. Defendants 6 to 8 are the undivided sons of defendant 5. The purchaser obtained an encumbrance certificate on 6 January 1908. The property was then subject to three other mortgages besides that of the plaintiff s. These are Exs. 9 and 10, dated 7 April 1897 and 29 June 1897, executed by Kamanna Patnaik in favour of Potnuru Adinarayana for Rs. 1,500 and Rs. 400 respectively, and Ex. 11 dated 6 December 1900 for Rs. 1,500 in favour of defendant 5's father. The former two mortgages were paid off by defendant 5 and registered receipts (Exs. 9(c) and 10(c) were obtained to evidence the payments. Defendants 5 to 8 accordingly claim that in case the plaintiffs get a decree, the decree should be subject to these three mortgages. This is the substantial point in the case. But besides this the defendants have raised other contentions also, viz. that the suit bond was not supported by consideration, that the interest is penal and that the suit is barred by limitation.

(3.) In appeal Mr. Srinivasa Ayyangar, the learned Advocate who appeared for the respondents, does not rely on the alteration to the third endorsement on the mortgage bond. He concedes that the alteration does not matter, but he argues that the endorsements which have been found by the lower Court to be unaccompanied by delivery of paddy and which therefore are mere acknowledgments will not avail to save limitation as against the purchaser, viz. defendant 5. This last point is the point strenuously argued in appeal.