LAKSHUMANAN CHETTIAR Vs. BOMMACHI NAICKER

JUDGEMENT

(1.) The main question argued before us in this appeal is as to whether the deed, Exhibit A, is without consideration in so far as it imposes a personal liability upon the 5th defendant, who was then in the line of succession and subsequently in 1905 succeeded to the zemindari of Ammayanaickanoor. The peculiar tenure of the zemindari was established in Sivasubramania Naicker v. Krishnammal 18 M. 287 and the inability of the reversioners to mortgage their chance of succession in Ramasami Nath v. Ramasami Chetti 30 M. 255; 17 M.L.J. 201; 2 M.L.T. 167, subsequently to the date of the plaint mortgage. Under the decision in Sivasubramania Naicker v. Krishnammal 18 M. 287 each zemindar takes a life-estate and as pointed out in Ramasami Naik v. Ramasami Chetti 30 M. 255; 17 M.L.J. 201; 2 M.L.T. 167, this fact creates considerable difficulties in the way of mortgaging the zemindari. In that case it was held that the mortgage executed by the present 5th defendant and other reversioners was not binding on him after he succeeded to the zemindari but that he was bound by the personal covenant to pay after he succeeded and that the covenant had been specially inserted to meet the difficulties in the way of enforcing creditors claims against the zemindari which arose in consequence of the decision in Sivasubramania Naicker v. Krishnammal 18 M. 287, owing to the fact that at the date of that decision and for some time afterwards the holder of the zemindari was not liable for the debt which it was sought to recover. That case arose out of a consent in Original Suit No. 43 of 1894 which was brought upon another mortgage and to which the present 5th defendant was a party, whereas the present claim arose out of a mortgage of other properties not included in the zemindari which was the subject of Original Suit No. 33 of 1893, in which the present 5th defendant was impleaded as the 6th defendant and in which it was sought to recover the amount due under the mortgage by sale of the mortgaged properties and also on the liability of the zemindari. The defendants Nos. 3 to 6 in that suit were ex parte and the contesting defendants Nos. 1 and 2 entered into a ra inama, by which it was provided that the amount due should be paid by defendants Nos. 1 and 2 in 12 months with compound interest and that the mortgaged properties and the zemindari should be held liable therefor and that if the zemindari should come into the possession of defendants Nos. 1 to 6, each of those defendants should pay this amount on getting possession of the zemindari from out of the income, and that in default the plaintiff should recover the same by means of a precept of the Court. The reason for and effect of similar provisions were considered in Ramasami Naick v. Ramasami Chetti 30 M. 255; 17 M.L.J. 201; 2 M.L.T. 167. The decree which was drawn up on this razinama provided that the mortgage debt should be paid by the defendants Nos. 1 and 2 and that the mortgaged properties and the zemindari and the assets of the fathers of defendants Nos. 1 to 5 should be liable and that if the 1st or 2nd defendant should succeed to the zamindari, he should pay at once the decree-debt from the income of the zemindari and that in default the plaintiff should proceed to recover it by process of Court and that the defendant (the 5th defendant here and the present zemindar) should be exempted from liability for the decree-debt. Thus effect was not given in the decree to the provisions of the razinama as to defendants Nos. 3 to 6 being liable if the zemindari should come into their possession, probably because they were ex parte and their consent had not been obtained.

(2.) A year later, on 29th January 1895, the plaintiff put in a petition for execution by sale of the mortgaged properties and for the appointment of a Receiver of the zemindari, and on 19th August 1895 the 6th defendant, 5th defendant here, put in a counter-petition pleading that he had been exempted from liability and that he was not a party to the mortgage sued on and opposing the appointment of a Receiver.

(3.) On 27th August 1895 the appointment of a Receiver was postponed by consent until 18th July and when on 9th August 1895 an order was passed appointing a Receiver, it was mentioned in the order that the defendants Nos. 1. and 6 had promised to pay Rs. 5,000 before that date and that the plaintiff had undertaken not to press for the appointment of the Receiver if they did so. At this time the 1st defendant Siva Subramania had succeeded to the zemindari and the present 5th defendant was apparently the next in succession.