CHINNATHAMBI CHETTI Vs. APPAVOO CHETTY ALIAS ARDHANARI CHETTY

JUDGEMENT

(1.) The facts of this case are as follows: One Ponnappa Chetty and his brother Periyanna Chetty executed a promissory note. After Periyanna Chetty's death, a decree was obtained against Ponnappa Chetty and Periyanna Chetty's sons, defendants Nos, 1, 4 and 5. In execution of this decree Ponnappa, Chetty was arrested. He borrowed money from another brother, the present plaintiff, to pay off the amount, undertaking to execute a mortgage in his favour; shortly afterwards he executed the plaint mortgage-deed, Ex. A, in which he mortgaged the property of defendants Nos. 1, 4 and 5 as their guardian. The present suit has been brought upon this mortgage-deed and it is sought to recover the whole amount lent thereunder from the property of the minors, defendants Nos. 1, 4 and 5, The consideration was Rs. 1,468 paid towards a decree debt and Rs. 532 paid for cultivation expenses, etc., the lower Courts have found that this amount of Rs. 532 is not binding upon the minors and have given a decree for the other item after deducting a small amount therefrom. Defendants Nos. 4 and 5 now appeal and contend that their properties are only liable for half of the amount of the decree-debt discharged by Ponnappa Chetty out of the mortgage-money. The decree was originally passed against them and Ponnappa Chetty jointly and severally; but in the absence of any evidence to the contrary, each would be liable to pay half the amount, subject to the decree-holder's rights to execute the decree against any one of the judgment-debtors. The District Judge has held that under this decree the minor defendants were liable to the decree-holder for the whole amount, and, therefore, as the decree could have been executed against them for the whole amount, their property is liable for that sum. In coming to this conclusion he has omitted to notice that the ultimate liability of the minors is only half of the decree amount, for even if they were compelled to pay the whole by the decree-holder they could recover half from their co-judgment-debtor, and consequently their real liability is only one-half. In support of this view I may refer to a case reported as Kali Rai V/s. Karu Singh 42 Ind. Cas. 462 : 3 P.L.J. 78 : 3 P.L.W. 210. In that case, which goes further than is necessary for the present case, it was held that even when the property of a minor was about to be sold in execution of a decree in which he and another co-tenant were judgment-debtors, yet the, mortgage was only binding to the extent of the minor's liability for that decree, namely, one-half of the amount. In the present case we have not got the additional circumstance that the minor's property was going to be sold, for when the mortgage was actually executed the decree had been satisfied, and it can make no difference that Ponnappa Chetty, the guardian of the minors, is the mortgagor. It cannot be said that the minors were liable for the whole decree amount. If the decree had been looked at, it would have been at once apparent that the liability was joint, the minors liability being only the half share for which their father was liable. It must also be remembered that the mortgagee is the brother of Ponnappa Chetty and the uncle of the minors, and he was in a position to know all these facts. In these circumstances it certainly cannot be said that the mortgage amount was borrowed wholly for the benefit of the minors; for they are only liable for one half of the decree-debt and only received benefit to that extent.

(2.) A contention is raised on behalf of the respondent that really the property, mortgaged belonged i jointly to the minors and to their uncle, Ponnappa Chetty, it being alleged that they formed members of an undivided family. The plaintiff himself; admits that Ponnappa Chetty and his brother, Periyanna Chetty, and three other brothers were all divided; and, although he says that Ponnappa and his nephews were living as one family, he does not allege that there was any re- union. In fact it is clear from the plaint that it was not part of the plaintiff's case that Ponnappa had mortgaged his own property, as is apparent from paras. 3 and 3 (a). The question was not raised in the lower Court because the plaintiff proceeded on the assumption that Ponnappa Chetty had no interest. That being so, this argument is of no avail. The appeal must, therefore, be allowed and the decree modified by altering the amount recoverable to Rs. 734, being half of the decree amount and proportionate costs. Time for payment three months.

(3.) The other points raised in the memorandum of appeal have not been argued and consequently, in so far as the appellants have failed, they are liable to pay the proportionate costs of the respondents. Parties will, therefore, pay and receive proportionate costs in this appeal.