T K BALASUBRAMANIA CHETTIAR Vs. AMMANICKAM CHETTIAR

JUDGEMENT

(1.) In this suit the plaintiff is seeking a decree for some Rs. 16,000 odd against two defendants. The two defendants are father and son and are a joint family. Mr. Rajagopalan has appeared for defendant 1, the father, and, if I may say so, has most ably argued all matters arising on behalf of his client and with refreshing brevity. The defence is now so far as both defendants are concerned one of limitation and limitation only. At one time it was on behalf of defendant 2 suggested that debt was incurred by his father, defendant 1, in matters arising out of speculation and wagering. That was dissipated very quickly when the evidence which was called on behalf of defendant 2 was given from the witness box.

(2.) It is necessary for me to refer to a number of dates and circumstances going back prior to the year 1917. Defendant 1 carried on business as a yarn merchant and the plaintiff had an interest in that business of four annas. The profits there from at one period were very large amounting to, I was told, some lakh or more rupees a year although the amount invested to commence the business was small but by the year 1917 apparently the business was not as flourishing as before. There was a suit, C.S. No. 95 of 1917, brought by the present plaintiff against defendant 1 for taking of partnership accounts, the result of which was a decree in favour of the plaintiff for approximately Rupees 1,10,000. By the year 1925 there had been paid something over Rs. 80,000 in respect of that decree and there was then remaining due Rs. 42,000 odd.

(3.) This decree was against defendant 1 alone. Defendant 2 was of very tender years in 1917 and at the time of the circumstances I am about to refer to, namely 1925, he was still a minor. On 23 December 1925, there was executed by defendant 1 for himself and on behalf of his infant son, defendant 2 an indenture of mortgage. In this deed there are a number of recitals to which I propose not to refer in detail but the effect is that the plaintiff forewent over Rs. 17,000 and thereby the debt due amounted to the round figure of Rs. 25,000. In the above mentioned deed it is recited that this was at the instigation and through the intercession of mutual friends. It must be remembered that at this time the plaintiff was possessed of a decree which he could execute in any way available to him, to reap the fruits of the decree. The indenture of mortgage provides that defendants 1 and 2, defendant 2 becoming a party to this deed, Undertook and agreed to pay to the plaintiff on demand the sum of Rs. 25,000 and the mortgage deed charged in favour of the plaintiff four immovable properties and certain moveable properties mentioned in the schedule.