RAMANATHAN CHETTIAR Vs. VRYSETHURAMA MADIGE RAO SAHEB

JUDGEMENT

(1.) This appeal is against an order passed by the Subordinate Judge of Tanjore in A.S. 13 of 1926 remanding O.S. 238 of 1924 to the District Munsif, Tiruvadi, for disposal according te law.

(2.) Defendant 4 is the appellant. The plaintiffs-respondents are the owners of properties described in Schedules A and B of the plaint. On 19 October 1917 they leased the properties in Schedule A to defendant 1 for seven years from 7 July 1918 on a rent of Rs. 600 per annum (see Ex. D) and also executed a mortgage to him for Rs. 1,525, hypothecating the Schedule B properties (see Ex. B, dated 21 November 1918). Ex. B contained the following recital: Unless credit entry is made herein in respect of payments of amounts which may be made on account of this bond, a statement (Plea) that they have been made otherwise is not sustainable.

(3.) On the same date as Ex. B defendant executed a varthamanam (Ex. C) to the plaintiffs agreeing to pay Rs. 200 out of the rents for a certain charity, to pay also the cist and to credit the balance of the rents towards the hypothecation bond. The plaintiffs alleged that defendant 1 failed to pay Rs. 200 for the conduct of the charity and the assessment due in respect of the lands and that by crediting the rents as provided for in Ex. C towards the mortgage bond, the bond was fully discharged. On these grounds they instituted O.S. 238 of 1924 for taking accounts in respect of the lease and the mortgage bond, for the recovery of the bond duly cancelled as having been discharged, and also for the balance of rent that may be found by defendant 1 after setting off the amount of the mortgage bond towards the rents. Defendants 2 to 4 were added as parties as they had got a sub-mortgage over the properties. Without going into the merits of the case, the learned District Munsif held that the varthamanam, Ex. C, is inadmissible in evidence, that it is not binding on defendants 2 to 4, and that the suit as framed was not sustainable in law. He therefore dismissed the plaintiff's suit. On all these points the learned Subordinate Judge differed from the District Munsif and, in the result, remanded the suit for disposal according to law.