LODD GOVINDOSS KRISHNADAS VARU Vs. PMARMMUTHIAH CHETTY

JUDGEMENT

(1.) Two main questions, one of law and one of fact, are raised in the issues framed in this suit. The question of fact can be determined only on oral evidence being admitted with regard to certain allegations made by the defendant and the question of law relates to the admissibility of that oral evidence. The question of law raised is therefore really in the nature of a preliminary issue. At one stage I thought whether it would not really be wiser to allow also oral evidence to be adduced and to record a finding thereon for the contingency of a higher tribunal taking a different view, but Mr. Radhakrishniah, the learned vakil for the plaintiff, intimated to me that his client was willing to take the risk and cost of the Court of Appeal remanding the case in the event of my decision on the question of law being in his favour and the same being set aside in appeal.

(2.) The facts so far as they are necessary for the determination of the main question of law may be set forth very briefly. The suit was originally instituted only against P. M. A. R. M. Muthiah Chetty and on his death his sons have been brought on the record as his legal representatives. The plaintiff who succeeded his father as the holder of a mortgage decree for a large amount in the District Court of Chittore assigned pursuant to an agreement with respect thereto an eighth share under the decree to the 1 defendant for an alleged consideration of Rs. 2,89,000. The deed of assignment, which has been marked as Ex. A in this case, bore the date the 1 day of October, 1917, and the material recitals in the deed were, that the plaintiff had agreed to assign to the 1 defendant the eighth share of the decree for a consideration of Rs. 2,89,000 to be paid by the 1 defendant to the plaintiff, whereof Rs. 89,000 was paid in advance on the day of the execution of the deed of assignment, and that, as regards the balance of consideration, namely, Rs. 2,00,000, other arrangements set out therein had been made for the payment thereof by the 1 defendant to the plaintiff and the operative portion of the deed proceeds to witness that the eighth share in the decree was thereby assigned by the plaintiff to the 1 defendant in pursuance of the said agreement and in consideration of the said sum of Rs. 2,89,000 paid and payable as aforesaid.

(3.) The plaintiff's case is, that though in the said deed it was recited that the sum of Rs. 89,000 payable under the agreement on or before the execution of the assignment had been paid up, only a sum of Rs. 60,000 had been so paid and that the balance of Rs. 29,000 had not been paid and that therefore, he was entitled to a decree for that amount with interest thereon at 12 per cent. per annum.