A DHANAPALA CHETTY Vs. DGOVERCHAND SOWCAR

JUDGEMENT

(1.) This appeal arises out of a mortgage suit filed by the 1 respondent against the appellant. There were two mortgages, one dated the 2nd April, 1921, for Rs. 600 and the other dated the 25 April, 1921, for Rs. 400. The first mortgage carried interest at 24 per cent, per annum and the second mortgage interest at 30 percent, per annum. The property charged in each case was the appellant's half share in a house. The second respondent is a subsequent mortgagee, but he took no part in the case and he is not concerned with the questions raised in this appeal. The appellant contested both the mortgages on these grounds: (i) that he was a minor at the time they were entered into; (ii) that this question of minority had already been decided in his favour in a previous litigation, and therefore the doctrine of res judicata operated; and (iii) that no consideration passed for either mortgage. He raised a further contention with regard to the second mortgage to the effect that it was not valid because it had not been attested in accordance with the provisions of Section 59 of the Transfer of Property Act. The learned Judge decided against the appellant on all these questions and decreed the suit, but he reduced the rate of interest to one per cent, per annum in each case. This reduction of the interest has not been challenged in this appeal.

(2.) I will first deal with the argument on the second point, namely, that of res judicata. It appears that on the 3 February, 1921, the appellant executed in favour of one P. Ratnavelu Achari another mortgage of the same property. Ratnavelu instituted Suit No. 545 of 1922 in the City Civil Court to recover the mortgage debt. The 1 respondent was made a party to that suit on the ground that he had a second charge over the property and had therefore a right to redeem Ratnavelu's mortgage. The 1 respondent did not appear and so far as he was concerned the case was decided ex parte. The trial Court held that the mortgagor was a major at the time of the execution of the mortgage in favour of Ratnavelu, but on appeal to this Court that decision was reversed and the mortgage was held to have no validity, having been executed during the minority of the appellant. Ratnavelu's suit was accordingly dismissed and the 1st respondent became the 1 mortgagee. The plea of res judicata is merely based on the fact that the 1 respondent was a party to the previous suit in which the question of the appellant's minority was decided. But this question was not a question between himself and the 1 mortgagee or between himself and the mortgagor. It was a question which concerned only Ratnavelu Achari and the present appellant. In Munni Bibi V/s. Tirloki Nath (1931) 61 M.L.J. 196 : L.R. 58 I.A. 158 : I.L.R. 53 All. 103 (P.C.), their Lordships of the Privy Council pointed out that in a case of this nature there are three conditions requisite before it can be held that the doctrine of res judicata has operation: (i) there must be a conflict of interests between those concerned; (ii) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (iii) the question between the co-defendants must have been finally decided. This decision was re-affirmed by their Lordships in Maung Sein Done V/s. Ma Pan Nyun (1932) 63 M.L.J. 64 L.R. 59 I.A. 247 : I.L.R. 10 Rang. 322 (P.C.). In Suit No. 545 of 1922 there was no conflict between the two defendants and therefore no question to be decided so far as the 1 respondent was concerned in order to give the plaintiff relief. The doctrine of res judicata could not, in these circumstances, apply.

(3.) [Their Lordships then discussed the evidence as to the minority of the appellant and came to the conclusion that the appellant had failed entirely to discharge the burden of proof resulting in the rejection of the plea of minority.]