(MARELLA) AKSHAYALINGAM Vs. (DONEPUDI) RAMAYYA

JUDGEMENT

(1.) This is an appeal from the decree of the learned District Judge of Kistna at Masulipatam wherein he reversed the decree of the Subordinate Judge. The suit was by the plaintiffs as mortgagees to recover a certain sum due on a mortgage by way of sale of the mortgage properties. The mortgage was executed in their favour (but as they were minors at the time they were represented by their mother as guardian) by defendant 2 and the late Kondayya, the deceased father of defendant 1 and husband of defendant 2 The plaintiffs now file the suit as mortgagees and the question involved is a certain site in the village of Lakshmipuram which is included in the mortgage-deed. The defendants-mortgagors contended that this site never belonged to themselves or the late Kondayya, but belongs to the family of the plaintiffs themselves and was inserted in the mortgage-deed with the view of perpetrating a fraud on the registration law.

(2.) The finding of the Subordinate Judge is that this is the fact and that this site was included in the mortgage-deed Ex. A with the object of getting the document registered in Challapalli which is only two miles from the residence of the parties in Devarakota. This is said to have been done to avoid the trouble of registering in Voyyur which is 18 miles from Devarakota. The learned Subordinate Judge sets out the authorities on the subject, finds that Ex. A is a mortgage in renewal of a prior mortgage-deed and comes to the conclusion that there was no intention that the title in this plot should pass to the mortgagee or on the part of the late Kondayya to create a title in himself. The plaintiffs set up a case of a gift of this plot to themselves prior to the mortgage. This is disbelieved and the Subordinate Judge finds that this site of 10 yards was in fact got up for the occasion " and was the property of the mortgagees themselves. He points out that this site is added on the third sheet, that in the schedule attached to the plaint the site has been omitted and it was not until the day of argument that the plaintiffs presented a petition for amending the plaint by the inclusion of this site. On these facts he found consciousness on the part of the mortgagees that title to the site was not in the mortgagors, that it was never intended to pass to the mortgagees and was included for the purpose of registration in the Challapalli Sub-Registry. He, therefore, found the document void and dismissed the suit.

(3.) It should be added that the plaintiffs mother who was the guardian during minority was not called and it was not until the case came on for argument on 29 June 1923 that a petition was presented to examine her as a witness. This was rejected by the learned Subordinate Judge. When the case came before the District Judge he agreed with the Subordinate Judge that the site was actually the property of the mortgagees and was included in order to secure registration in Challapalli. He, however, says that it is necessary to find collusion between the mortgagors and the mortgagees and that to that end it is necessary that the mortgagors-defendants should establish that the plaintiffs mother herself was personally aware of the inclusion of the site in the deed and why it was included. The learned District Judge felt there was " a moderately strong presumption " that she possessed this knowledge and considering that it was to the benefit of both parties examined the plaintiffs mother under Order 41, Rule 27.