T P PETHERPERMAL CHETTY Vs. RMUNIANDY SERVAI

JUDGEMENT

(1.) In this ease an action was originally brought by R. Muniandy Servai, claiming through his deceased brother Chellum Servai, who was himself heir and administrator of one Muniandy Maistry, against T. P Petherpermal Chetty, the uncle and predecessor of the appellant (hereinafter called " Petherpermal the elder") and two formal defendants, R M. A.R. L Muthia Chetty and P. R. M. P. Chinnia Chetty, to recover possession of a certain tract of paddy land about 2,500 acres in extent, known as Government Waste Land No. 1, situate in Tamanaing Circle, Kungyangon Township, Hanthawaddy District, Lower Burma. One Arunachellam Chetty claimed to be an incum-brancer on these lands as equitable mortgagee by deposit of the title deeds for a sum of Rs. 14, 568-12-0,

(2.) On the 11 June 1895, Chellum Servai executed a deed purporting to be a conveyance on sale of the above-mentioned lands to Petherpermal Chetty the elder, a money lender residing in Rangoon, in consideration of the sum of Rs. 30,000, the receipt whereof was thereby acknowledged.

(3.) On the 18 September 1895, Arunachellam Chetty, the equitable mortgagee, instituted a suit in the District Court of Hanthawaddy against Chellum Servai, as administrator of the estate of Muniandy Maistry deceased, and Petherpermal the elder, in which he alleged that at the time of the execution of the above-mentioned conveyance Petherpermal the elder was aware of the existence of his (Arunachellam s) claim as equitable mortgagee, and that the sum of Rs. 30,000, the consideration mentioned in the deed; had never been paid, and claimed that he might be declared entitled to hold his equitable mortgage over these lands in priority to the last-mentioned conveyance, and that the defendant Chellum Servai might be ordered to pay to him the sum of Rs. 14,568-12 with interest, and other relief.