KONDURU DASARATHARAMA REDDI Vs. INDOOR NARASA REDDI

JUDGEMENT

(1.) It is to be regretted that having regard to the points that finally emerged and were argued in this second appeal on behalf of the appellants, the only parties interested, namely defendants-respondents 1 and 2, should not have been represented before us and we should have had to hear this second appeal practically ex parte. We are, however, obliged to Mr. T.V. Muthukrishna Aiyar, the learned vakil who appeared for the 16 respondent, for his having as amicus curiae placed before us the arguments on behalf of those parties.

(2.) We have come to the conclusion that the appeal should be allowed and that the dismissal of the plaintiffs suit being set aside, a decree should be passed in favour of the plaintiffs- appellants with regard to part of their claim.

(3.) The plaintiffs suit was on a mortgage for the sale of the mortgage securities. The facts either as admitted or as finally established are these. The mortgage was jointly in favour of the plaintiffs family called in these proceedings the Kondur family and the family of the defendants 3 to 16 called the Bezwada family. The family of defendants 1 and 2 were the mortgagors. About July, 1903, the family of defendants 1 and 2 having been reduced in circumstances executed in favour of the Kondur family of the plaintiffs and the Bezwada family certain sale-deeds. The mortgage amount having been advanced by both the mortgagee families and those families being entitled to proportionate shares in the amount under the deed of mortgage, no question arises in this case with regard to the amount due to the Bezwada family, because it is admitted that the amount due to them had been paid off and discharged. We are, therefore, only concerned with the amount due to the Kondur family of the plaintiffs. The finding of both the Courts below was clearly to the effect that the 1st plaintiff did accept the sale-deed, Ex. G-1, in the case in full satisfaction and discharge of the mortgage. Mr. Varadachariar, the learned vakil for the appellants, did not wish to contest that finding. His argument was merely to the effect that the amount due to the plaintiffs family at the time was considerably over Rs. 5,000 and that Ex. G-1 was merely a deed of conveyance in favour of the plaintiff's family of property worth Rs. 3,000, that the 1 plaintiff was not in law entitled to grant a discharge to the mortgagors accepting only a portion of the amount due and waiving the balance because though as a it was might be binding personally against the 1 plaintiff still as the two other members of the family at that time were minors it was beyond the power of the manager to waive such a large amount without any consideration whatever and that, therefore, the members of the family who were minors at the time were now entitled to seek to recover such balance from the mortgaged properties or such of them as have not been validly disposed of.