Y A A V R SETHURAMAN CHETTIAR Vs. KKRMRMRAMANATHAN CHETTIAR (DIED) REPRESENTED BY HIS LEGAL REPRESENTATIVES MUTHIAH ACHI

JUDGEMENT

(1.) This appeal arises out of a suit to enforce a mortgage bond executed on 30 March, 1937, by one Y.A. RM. Veerappa Chetti in favour of the plaintiff-respondent.

(2.) One Y.A.A.R. Veerappa Chetti (who will be referred to as the deceased Veerappa Chetti) died without issue on the 12 March, 1937. Y.A. RM. Veerappa Chetti who was a near pangali of the deceased Veerappa Chetti instituted a suit for recovery of the properties pertaining to the estate of the deceased Veerappa from the defendant, appellant herein, who claimed to be the adopted son of the deceased Veerappa. The suit was filed soon after the death of the deceased Veerappa, but as the claimant Veerappa did not have sufficient funds for the conduct of the litigation he sought to assistance of the respondent who agreed to advance Rs. 10,000 in the first instance and further sums later on if required and in pursuance of that agreement the claimant Veerappa executed the suit mortgage Ex. P-I in favour of the respondent for Rs. 10,000 mortgaging all the properties pertaining to the estate of the deceased Veerappa, though the title thereto was then under dispute. Ex. P-I provided that if any amount over and above the sum of Rs. 10,000 for which it was executed was required for the litigation and if Veerappa made a request for such further advance, the properties mortgaged shall be a security for the amounts thus additionally advanced and the interest thereon. The suit (O.S. No. 67 of 1937 on the file of the Subordinate Judge of Devakottai) in which the respondent also joined as a co-plaintiff was dismissed by the trial Court which found the adoption to be true. The plaintiff thereupon preferred an appeal to this Court (A.S. No. 83 of 1940). The claimant Veerappa, however, died before the appeal was heard leaving the respondent on record as the sole appellant. When that appeal was part heard, the parties, that is, the present respondent and the appellant, compromised the matter, the appellant admitting the liability of the estate of the deceased Veerappa Chetti under the mortgage of 30 March, 1937 and the respondent for his part admitting the appellant's title to that estate on the footing of a valid adoption. There was a stipulation that in any suit that might be instituted " the only plea open to the respondent (that is present appellant) is to be about the amount due under the mortgage, no other plea being open to him." (Ex. P-20). A decree was passed in terms of the compromise on the 15 December, 1942, (Ex. P-23). As the amount was not paid in accordance with the terms decreed, the respondent brought the present suit on 21 October, 1943, to enforce the mortgage Ex. P-I, claiming that in addition to the Rs. 10,000 specified in the deed, he had advanced from time to time Rs. 75107-13-3 and that both these sums with interest amounted to Rs. 29,541-7-3 as on the date of the plaint. The sum of Rs. 7,107-13-3 though alleged to have been advanced before the compromise Ex. P-20 was not then agreed upon as payable to the respondent under the mortgage and the appellant, acting on the reservation, in the compromise, of disputes regarding the amount due under the bond, denied his liability to pay the amount and the interest thereon.

(3.) As the stipulation in the mortgage deed regarding further advances did not specify any amount, the respondent, before instituting the suit, applied to the Revenue Divisional Officer, Devakottai, empowered to act as Gollector, on 31 July, 1943, for adjudication as to the proper stamp duty payable on the instrument as a whole. The application has not been exhibited in the case, but there is no serious dispute that the additional amount for which the mortgage was sought to be enforced was mentioned before the Collector. On 13 August, 1943, the Collector adjudged that the document was chargeable with a duty of Rs. 75-12-0 under Articles 33 and 4 (c) of Schedule i-A of the Stamp Act as amended in Madras. The document having already borne stamps of the value of Rs. 75 which is the proper duty chargeable on Rs. 10 000, the Collector levied the deficit duty of As. 12 with a penalty of Rs. 7-8-0 from the respondent and a certificate to that effect was endorsed on the bond Ex. P-I. It was on the bond thus certified that the suit has been brought.