S RM M RM RAMANATHAN CHETTIAR LATE A MINOR BY GUARDIAN MUTHAYI ACHI ALIAS CHITTAL ACHI Vs. HIS HIGHNESS MAHARANA SHRI DOWLAT SINGJEE, THAKORE SAHIB OF LIMBDI REPRESENTED BY HIS AGENT MRVCGOPALARATNAM, ADVOCATE, HIGH COURT

JUDGEMENT

(1.) This is an appeal by defendants 1 and 5 against the decree of the Subordinate Judge of Trichinopoly in O.S. No. 1 of 1929.

(2.) The plaintiff in the suit is H.H. The Maharatta Thakore Sahib of Limbdi. In the appeal the question is raised as to whether the plaintiff is entitled to a sale of the suit properties in enforcement of an alleged sub-mortgage of an equitable mortgage by deposit of title-deeds, granted to him by the third defendant of the suit properties. These, called the Vadavoor lands, are situate in the Trichinopoly District. These and various other properties situated in Madras and Bangalore belonged to Messrs. Tawker & Sons, a well-known firm of jewellers in Madras. They mortgaged the title-deeds of all these properties to Messrs. Nagarseth & Sons, the third defendant in the present suit, in 1916 for a sum of over 18 lakhs of rupees borrowed from time to time for carrying on their family business. Exs. M, M-1 and M-2 are the documents which were deposited as the title-deeds of the properties. Of these Ex. M is only a judgment and, strictly speaking, is not a title- deed. In August, 1922, Nagarseth instituted C.S. No. 3772 of 1922 in the Bombay High Court (Ex. D-4 being the plaint) against Messrs. Tawker & Sons(who were defendants 1, 2 and 3), for the enforcement of the equitable mortgage. This suit was not finally decreed till 1928. Meanwhile, on the 17 January, 1925, Messrs. Tawker & Sons were adjudicated insolvents and the Official Assignee of Madras was made a party in that suit as the fourth defendant. In the course of the suit the present plaintiff was also made a party as the fifth defendant at the instance of the plaintiffs in that suit (the present third defendant) - see Ex. J dated 17 April, 1925--on the ground that they had made an "equitable sub-mortgage" in his favour of the title-deeds of the immovable properties situate at Madras, Trichinopoly and Bangalore mortgaged to them. He then lodged what is called a counter-claim against Nagarseth & Sons for Rs. 18,23,517-6-3 which he averred was secured by deposit with him of the title-deeds mentioned in the plaint and he prayed that the properties covered by the title-deeds be sold and the proceeds applied in satisfaction of his debt. See Ex. N. It may be mentioned here that the third defendant used to obtain moneys from the present plaintiff for lending them to the Tawkers. The present defendants 1 and 2, the latter representing the P.M.A. Estate as receivers, claiming right to the Vadavoor properties involved in the present suit as purchasers of the same in the course of execution proceedings in C.S. No. 196 of 1921 on the file of the High Court of Judicature at Madras, applied on the 12 April, 1928, to be made parties in C.S. No. 3772 of 1922. Thereupon the present plaintiff and the third defendant (fifth defendant and plaintiffs in S the Bombay suit) agreed to omit from that suit their claim to I the Vadavoor lands, the present suit properties, and to bring a suit for the same within three months in Madras. In the circumstances, the learned Judge declared that he made no order on the application (see Ex. O, dated the 18 June, 1928); and defendants 1 and 2 were not made parties to the suit. The learned Judge stated in Ex. O that the plaintiff and the fifth defendant (that is, the Nagarseths and the present plaintiff) agreed to omit from their suit their claim as regards theVadavoorvillage and to file a suit within three months inter alia against the applicants) that is, defendants land 2) to enforce their claim against the said Vadavoor village in the Court of local jurisdiction . In July, 1926, shortly after his appearance in the suit, an interim decree was passed by consent as between the Nagarseths and the present plaintiff. That decree (see Ex. L) directed the Nagarseths to pay him the sum of Rs. 19,26,232. No relief was granted with respect to the submortgage, but it was decalred that: This decree is without prejudice to the rights of the 5 defendant (the present plaintiff)to take proceedings on the equitable mortgage of the properties in the Madras Presidency and to prove his claim in the insolvency against the estate of the first, 2nd and 3 defendants (the Tawkers).

(3.) Ex. L-1 is the copy of the amended decree passed in the Bombay suit on the 5 November, 1928 and in it the direction contained in Ex. O was repeated. It declared that for the amount due by Tawker & Sons to the Nagarseths, namely, Rs. 15,37,243, the Nagarseths were entitled to an equitable mortgage and a first charge on the lands comprised in the title-deeds with the exception of the lands in the Vadavoor village (the present suit properties) and it was declared that by virtue of the deposit of the title-deeds by the Nagarseths with the 5 defendant, the Rajah of Limbdi, the properties were validly mortgaged to the latter for the Nagarseths debt to him which had been already fixed at Rs. 19,26,232 by the previous consent decree; and lastly it was declared that in default of payment by the Nagarseths to the Rajah he would be entitled to a decree absolute for sale but without prejudice to his own and Nagarseths rights: To institute a suit (that is, the right of the plaintiffs and the 5th defendant) against S. Rm. M. Rm. Ramanathan Chettiar and Messrs. Fraser & Ross, Receivers of the P.M.A. Estate of Madras (the present 1st and 2nd defendants) to enforce their respective rights under the said mortgage as provided by the previous order of the 18 June. (Ex. O.)