KORU ISSAKU Vs. GOTTUMUKKALA SEETHARAMARAJU

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the learned Subordinate Judge of Narasapur confirming the decree and the judgment of the learned District Munsiff of Bhimavaram in a suit instituted by the first respondent. The first and second defendants are the sons of One Swami by his first wife ; the third defendant is the son by his second wife. At all material times defendants 1 and 2 were undivided, but the third defendant was divided from them. By a sale deed dated 22nd November, 1929, (Ex. P-1) the first and second defendants sold to the plaintiff for Rs. 6,000, the lands in two survey numbers of the extent of 8 acres 44 cents in R.S. No. 815 and one acre 34 cents in R.S. No. 817/1, in the village of Srungavruksham in West Godavari district. On the date of sale R.S. No. 817/1 was subject to a mortgage dated 1 December, 1924 executed by the first defendant in favour of one Bhaskara Rao. On the same date as Ex. P-1, i.e., 22nd November, 1929, defendants 1 and 3 purchased R.S. No. 683/1 in the same village which was 4 acres 8 cents in extent. It is not disputed that the interest which the first defendant acquired under this purchase was for the benefit of himself and his undivided brother, the second defendant. To indemnify the plaintiff against any loss that he may sustain on account of the mortgage subsisting on one of the items sold to him, viz., R.S. No. 817/1, defendants 1 and 2 gave as security a defined plot of two acres on the eastern side of R.S. No No. 683/1, which, as already mentioned, was of a total extent of 4 acres 8 cents. It has been found by both the Courts below that on the date of these transactions, i.e., 22nd November, 1929, there was no division" by metes and bounds of the said R.S. No. 683/1 between defendants 1 and 2 on the one hand and the third defendant on the other. It was sometime after January, 1930 that there was a partition according to which the western half of the survey number fell to the share of defendants 1 and 2 and the eastern half to the share of the third defendant. It was suggested by the plaintiff that this partition was fraudulent, but his plea was not substantiated.

(2.) On the 1 January, 1930, defendants 1 to 3 executed a mortgage over R.S. No. 683/1 in favour of one Narasaraju. In the deed of mortgage (Ex. D-2) it is recited that a half share in the property belonged to the first and second defendants and the other half share belonged to the third defendant. On the 4th November, 1930, the first and second defendant sold the western half of the survey number which had fallen to their share, to the father of defendants 6 to 8 after obtaining a release from the mortgagee under Ex. D-2 in respect of that half. On the 25 July, 1934, the third defendant sold the eastern half of the survey number which fell to his share to defendants 4 and 5. Defendants 1 and 2 did not discharge the mortgage in favour of Bhaskara Rao on R.S. No. 817/1 and in execution of a decree obtained by the mortgagee the plaintiff lost the property covered by that survey number. Thereupon he instituted the suit out of which the present second appeal arises, to recover the amount of loss sustained by him by a sale of the property given as security in his sale deed. In his plaint he referred to the partition between defendants 1, 2 and 3 at which the western half of R.S, No. 683/1 fell to the share of defendants 1 and 2. He attacked the partition as fraudulent, but in the alternative he alleged that assuming that the partition was valid, even then the half share of two acres 4 cents on the west alleged to have fallen to the share of defendants 1 and 2, is, both according to law and equity, liable as substituted security with respect to the plaintiff's loss. The main contesting defendants were defendants 6 to 8, their father who was the purchaser under Ex. D-5 having died. Inter alia they pleaded that their father had no notice of the hypothecation in favour of the plaintiff and that he was a bona fide purchaser for proper consideration and that the plaintiff was not entitled to proceed against their property and the plaintiff could not rely on any rule of substituted security. The learned District Munsiff held that the plaintiff was entitled to recover a sum of Rs. 969, being the amount of loss sustained by him with subsequent interest by the sale of the western half share in R.S; No. 683/1 in the hands of defendants 6 to 8 and granted a decree accordingly. This decree as already mentioned was confirmed on appeal by the learned Subordinate Judge. Hence this second appeal by defendants 6 to 8.

(3.) On the findings of the lower Court which must be accepted as final in second appeal, the position is as follows: