M DORAISWAMI AIYANGAR AND BROS Vs. PVARADARAJULU NAIDU

JUDGEMENT

(1.) This is an application made by the plaintiff for permission to amend his plaint. The amendment proposed affects defendant 3, who opposes the application. The question I have to decide is: can the proposed amendment be allowed? I shall refer to such allegations in the plaint as are relevant to the present purpose. The suit is brought to enforce an equitable mortgage created by defendant 1, by his depositing certain title-deeds. There were dealings between the plaintiff's firm and in the course of those dealings the latter executed promissory notes in favour of the former. About the mon December, 1925, there was a sum of little over Rs. 12,000 due to the plaintiffs and it is alleged that defendant 1 then deposited with them title-deeds of properties mentioned in Schedules B, C and D to the plaint with a view to create an equitable mortgage over them. Although the deeds were deposited by defendant 1, it is alleged that he represented that he was making the deposit both on his own behalf and on behalf of defendant 3, who was described as his adoptive mother. The properties mentioned in Schedule B stood in the name of defendant 3, and the plaint alleges that defendant 1 represented at the time that he was duly authorized by defendant 3, to deposit the title-deeds of those properties. There is a further allegation in the plaint that defendant 3, is bound in respect of the last-mentioned properties for the additional reason that she allowed defendant 1 to be in possession of the title-deeds relating to them and is therefore estopped from disputing the plaintiff's right thereto.

(2.) The first point to note is, that the plaintiffs seek to enforce the mortgage both against defendants 1 and 3. Although in this respect the plaint is lacking in clearness, there can be no reasonable doubt, on a reading of the whole plaint, that this is what is intended. In para. 9 it is stated that defendant 1 agreed that when called upon he and defendant 3 would execute a deed of mortgage in due form and get it registered. It is then alleged that the plaintiffs got prepared a draft deed of mortgage, but that neither did defendant 1 nor defendant 3 execute it in spite of demands. Then again the first prayer in the plaint is that a mortgage decree may be passed against both defendants 1 and 3. The suit must be, therefore, regarded as one to enforce a mortgage against both defendants 1 and 3 alike.

(3.) Defendant 3 has filed a written statement denying: (a) that defendant 1 is her adopted son,; (b) that she authorized the mortgage; (c) that she empowered defendant 1, to make the deposit of the title-deeds of the properties in Schedule B; or (d) that she is estopped by her conduct from questioning the plaintiff's right to the last-mentioned properties.