(BASAVA) SIMON Vs. (MYLAVARAPU) RANGAYYA NAIDU

JUDGEMENT

(1.) This is an appeal under, Clause 15, Letters Patent, against the judgment of Spencer, J., in Rangayya Naidu V/s. Rasava Simon , dismissing the plaintiff's suit for redemption.

(2.) The facts are briefly these: The suit property belonged to one Anga Narasimhalu who died leaving a widow Rangamma and two daughters. The widow put forward Anga Ramaswamy as having been adopted to her deceased husband. On 6 April 1902, the suit property was mortgaged in favour of defendant 1 by the adopted son represented by his guardian, the adoptive mother. On 2 May, 1906. another mortgage, Ex. B, was executed by the widow as the guardian of the adopted son, in which the prior mortgage was merged. The plaintiff's suit out of which this Letters Patent Appeal arises was instituted for the redemption of this mortgage, Ex. B. After executing the said mortgage the widow Rangamma sold the suit property to the plaintiff's father on 2 July, 1910. On 6 July 1910, the adopted son who had attained majority sold the property to one Vaddadi Ramaswami who in his turn sold it to one Venkata Rao. In O.S. No. 51 of 1910 on the file of the Subordinate Judge's Court of Vizagapatam the plaintiff's lather sought to eject the present defendants after declaring the suit mortgage to be invalid. That suit was dismissed but the plaintiff's right to redeem the mortgage was left open and he was given liberty to institute another suit. In O.S. No. 18 of 1912 on the file of the Subordinate Judge's Court of Vizagapatam the two daughters of the widow Rangamma obtained a declaration that the adoption of Ramaswamy was invalid, and the Subordinate Judge's decision was confirmed by the High Court on appeal.

(3.) The plaintiff's suit was resisted by the defendants mainly on two grounds: (1) that the plaintiffs are estopped from questioning the validity of the mortgage as their father's vendor, the widow Ban-am ma would be estopped from disputing that the adopted son had no right to convey the suit property and (2) that the suit is premature inasmuch as it has been brought before the expiry of 15 years, the period alleged to be fixed in the mortgage. Both these grounds were overruled by the District Munsif and the Subordinate Judge who gave a decree for redemption in favour of the plaintiffs. In second appeal preferred by defendant 1 Spencer, J., overruling the plea of estoppel, upheld the plea that the suit was premature and in consequence dismissed the plaintiff's suit for redemption.