MARINA AMMAYI Vs. (CHANGANTI) SUNDAYYA

JUDGEMENT

(1.) This appeal arises out of a suit brought on the foot of a mortgage bond dated 5th December 1906 (Ex. A) executed by defendant in favour of the plaintiff. The plaintiff is a Kamma woman aged 55. According to the terms of the mortgage bond Rs. 6,000 were borrowed and they were to be repaid in six annual instalments of Rs. 1,000 each on the first April of each year beginning with 1908 and ending with 1913. The rate of interest in the first instance is 12 per cent per annum but the deed provides that if two consecutive instalments remained unpaid the entire principal and interest outstanding due at the time shall, without reference to future instalments, be recoverable together with interest thereon at 15 per cent per annum from the date of default till the date of payment. The mortgaged property comprises 763 acres in different villages in the East Godaveri District. By a sale-deed dated 17 March 1908 (Ex. B) the mortgagor sold the equity of redemption in 757 acres and one cent in five of the villages of the mortgaged property to five persons;. (1) Falloori Sathayya, (2) Marina Sooranna, (3) Marina Veeranna, (4) Pathoori Kannamma and (5) Yeriagadda Manikyam. Of these 5 persons the second and the third are the sons of the mortgagee under Ex. A., the fourth and the fifth are the daughters of that mortgagee; and the first is the father- in-law of the third, that is Marina Veeranna. These five entered into a kind of agricultural partnership. They purchased the 757 acres and after carrying on some agricultural operations they settled their accounts and sometime in 1909 and 1910,. divided the purchased properties between themselves and also settled their accounts in connexion with their liabilities relating to the purchase and the subsequent agricultural operations. The sale-deed was for Rs. 28,000 which consisted of Rs. 6,918, the mortgage amount due to the plaintiff under Ex. A, Rs. 13,082, paid before the Sub-Registrar and Rs. 8,000 represented by a promissory-note Ex. B (1) of the same date. The evidence of P. Ws. 2 and 3 shows there was a division of the lands in 1909 and 1910 and lists of shares (vatala jabitalu) were drawn up in connexion with the said divisions but apart from the division of the lands, it appears there was a settlement of their accounts showing how much each had to contribute originally, how much has been already contributed and for how much more each sharer remained liable. The main liability was in equal shares. Where the contributions made by each person are unequal, the balance which would still remain due will also be unequal. That some such settlement took place prior to 1911 is the case of both parties. The plaintiff's case on this matter was not expressly set forth in the plaint but was developed in the course of the trial, but defendants 2, 4 and 5 pleaded it in their written statement. Para. 5 of their written statement runs thus: The vendees agreed at the time of their sale to discharge the mortgage bond in accordance with their specific shares. The plaintiff also consented to the same; and subsequently each of the sharers paid off their share of the mortgage debt from time to time and the suit bond is fully discharged.... The accounts were looked into and the bonds were treated as fully discharged and was so entered in plaintiff's accounts.

(2.) It is clear that this paragraph in the written statement shows that the partners settled their accounts inter se. No date is given in the written statement as to when this took place or what the result of the settlement was. The paragraph only alleges: These defendants are informed and submit that a sum of Rs. 2,000 was paid in full discharge on or about 21 April 1911 to the plaintiff by the late Valloori Sathayya.

(3.) This sentence implies that sometime prior to 21 April 1911 the share of Valloori Sathayya, one of the vendees also was determined and that amounted to Rs. 200 by 21st April 1911 and that was paid at or about that time. The plaintiff's case is that the amounts due from the various sharers as settled in 1910 were unequal, that the amount due from Valloori Sathayya was about Rs. 3,759, that the amounts allotted to the other sharers were all paid off to the plaintiff and that after giving credit to those various amounts paid by the other sharers she brings the present suit to recover the amount remaining due.