RAMACHANDRA NAIDU Vs. PAVALAYAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit filed on foot of a mortgage, dated 7 April, 1923 executed in favour of the plaintiff by Sengoda Goundan, father of defendants 1 to 3. The fourth defendant was impleaded as he purchased the mortgage properties in an auction sale held in execution of a money decree obtained against the mortgagor and is in possession. Defendants 1 to 3 did not contest the claim. The fourth defendant raised various defences. First, he pleaded that the suit mortgage bond was not supported by consideration and that it was a collusive transaction between the mortgagor and the plaintiff who was his near relation, intended to screen the properties as the mortgagor was then heavily indebted. Secondly he pleaded that besides the plaintiffs mortgage there were two prior mortgages which were paid off by him and that he is entitled to priority by reason of such payment over the suit mortgage. These two contentions are made the subject of two issues. The first issue was found in favour of the plaintiff but the second issue was found in favour of the fourth defendant and a decree was accordingly passed, providing for the priority in respect of the payments made by the fourth defendant towards the earlier mortgages. The fourth defendant has filed this appeal. In appeal he repeats his contention that the suit mortgage bond was nominal and was not supported by consideration. He raised certain questions of detail in the working out of the priorities which will be referred to later on.

(2.) Taking up the first question, vis., whether the suit bond was supported by consideration we see no reason to differ from the conclusion of the learned trial Judge. [His Lordship dealt with the evidence and concluded :] The result is that the first contention in appeal fails.

(3.) Coming to the second contention, the first point argued is that the fourth defendant is entitled not merely to the amount paid in respect of the prior mortgages but is also entitled to the sums due on the original mortgages which were discharged by him though by payment of a smaller amount; in other words that he is entitled to the benefit of any remission given by the two mortgagees. It is unnecessary to discuss this question at any great length because no such point seems to have been raised in the lower court. The learned Advocate for the appellant now refers to a registered receipt which shows that so far as the first mortgage was concerned, viz., Ex. Ill, the actual sum due at the time was more than Rs. 900 but that a portion was given up and the mortgagee gave a full discharge on receipt of Rs. 900 only as shown by the endorsement in Ex. III. But this receipt was never proved in the lower court and never exhibited. It was not before the learned trial Judge and no complaint is made in the grounds of appeal in connection with its not being exhibited. That being so, we must disallow this ground.