KOTTAPALLI SUBBAMMA Vs. JATAVALLABHULA SUBRAMANYAM

JUDGEMENT

(1.) The defendants 1 and 3 are the appellants. The suit was brought on a mortgage bond executed to the plaintiff by a Hindu widow (the 1st defendant). The bond is dated 15th May 1902. On the 16th February 1913 the 1st defendant executed the surrender deed Ex. I in favour of her husband s reversionary heir (the 3rd defendant). This suit was brought on the 20th September 1911 and it was during the pendency of the suit that this relinquishment deed Ex. I was executed. The suit was posted for trial for the 16th February 1912. Then there were five more adjournments and the 6th adjourned hearing date was 7th February 1913. Then the defendants made a request for another adjournment to 7th March 1913 and between these two dates (7-2-13 and 7-3-13) the surrender deed was executed in favour of the next male reversioner the 3rd defendant by the widow the 1st defendant on the 16th February 1913. In the written statement dated 25th October 1911 however, paragraph 5, there is an allusion to a surrender by the first defendant to the minor 3rd defendant. The surrender mentioned in the written statement must therefore relate to an alleged prior oral surrender. The date of that oral surrender is not mentioned in the written statement which was filed more than a month after the suit was filed. That the surrender whether oral or written was deliberately intended in order to defeat the plaintiff s claim to bring the life interest of the 1st defendant in the property to sale for recovery of the plaintiff s mortgage amount cannot in my opinion be disputed and was seriously disputed by the appellant s learned Counsel. The Lower Courts held that the surrender could not defeat the right of the plaintiff to get a mortgage decree for sale of the 1st defendant s life interest as the transfer of that interest by way of security to the plaintiff had taken place in 1902 while the alleged oral surrender was at the end of 1911 and the written surrender deed, Ex. I was in 1913.

(2.) Mr. B. Narasimha Rao, the earned Counsel for the appellants has raised two contentions in the memorandum of second appeal. The first contention is that the mortgage document itself was invalid as it had not been proved that it was attested by two persons who saw the executant execute it. This contention however was not pressed at the arguments before us and there is nothing in it as the writer who is also an attestor see Radhakishen v. Fateh Ali Ram (1898) I.L.R. 20 A. 532 as to the treating the writer as an attestor for the purpose of Section 59 of the Transfer of Property Act and another attestor have proved the actual execution of Ex. A.

(3.) The remaining contention might be stated in the words of the 6th to 9th grounds of the appeal memo, as follows: 6. The Lower Courts were wrong in holding that the plaintiff could have a decree against the life estate of the 1st defendant notwithstanding relinquishment in favour of the next reversioner, the 3rd defendant, which has the effect of extinguishing her estate in the eye of Hindu Law. 7. The Lower Courts erred in holding that the relinquishment conveyed only the 1st defendant s equity of redemption. 8. The Lower Courts should have held that relinquishment is equivalent to civil death and that under Hindu Law the next reversioner takes the entire estate unfettered by any invalid alienations made by the widow. 9. The mortgage having been found to be not binding on the reversioners and the relinquishment having been found to be valid, the Lower Courts have held that the 3rd defendant was entitled to the estate in his own right as if the widow had died and the plaintiff s suit should have been dismissed.