BALASUNDARA NAICKER Vs. RANGANATHA AIYAR

JUDGEMENT

(1.) The suit out of which this appeal arises was filed on the footing of a mortgage bond, Exhibit A, for Rs. 8,000, dated 11 January, 1903, executed in favour of four persons, namely, (1) father of 3 plaintiff, (2) father of 17 defendant, (3) father of 2nd plaintiff, and (4) the 1 plaintiff, by defendants 1 to 3 and their undivided father. 4 defendant is the son of the 1 defendant. Defendants 5 to 9 are sons of 2nd defendant. Defendants 10 to 16 are subsequent vendees and mortgagees of defendants 1 to 9. The four obligees of the bond belong to one family. The first two belong to one branch of the family. The third and the fourth who are sons of brothers belong to another branch. The two branches were separated even before 1909. Under the terms of the mortgage bond, the interest was to be paid at 9 per cent, per annum on the 11 January of each year, and if it was not so paid the interest should be compounded and bear further interest at 10 1/2 per cent, per annum with annual rests. The whole amount was to be paid on 11 January, 1906. In default, it should carry further compound interest at 10 1/2 per cent, per annum with annual rests. Some amounts were paid on 2nd May, 1905, 31 August, 1905, 21 October, 1905 and 12 November, 1905 and were all endorsed on the bond on the last of these dates. Again some amount was paid on 15 April, 1906 and 19 January, 1907, and these payments were endorsed on the latter date. In the year 1909 there was some litigation between the 3 plaintiff and the 17th defendant. This was O.S. No. 3 of 1909. That was a suit filed by the 17 defendant against the 3 plaintiff for partition of the properties belonging to their branch. Pending the suit two Receivers were appointed in October, 1909, for the purpose of collecting the assets due to the family. The Receivers were vakils of the Sub-Court of Maya-varam at Kumbakonam, where the suit was filed. In 1912, while the suit was pending, the Court was transferred to Mayavaram, but before the transfer the Receivers had collected more than one lakh and fifty thousand rupees and they were discharged in April, 1912. One of the debts which they collected as Receivers was the debt due on the suit mortgage bond. As the debt was due not only to the two parties in that suit but also to two others, namely, plaintiffs 1 and 2, the collection was made with the co-operation of the two persons. The 3 plaintiff is a natural son of the 2nd plaintiff but was adopted into a different branch, and the 2nd plaintiff conducted O. S. No. 3 of 1909 on behalf of the defendant therein, namely, the present 3 plaintiff. In his evidence, he admits that he used to go to the Receivers whenever sent for, and that in respect of the realisation of the common debts the Receivers used to consult him and the 1 plaintiff. There is no doubt, therefore, that the work of collection was made by the Receivers with the co- operation of plaintiffs 1 and 2. The defendants case now is that the Receivers filed some suits and the debtors pleaded in those suits that the provisions regarding interest were penal and unenforceable. The Receivers compromised those suits agreeing to some reasonable rate of compensation and not insisting on the original rate of interest in the bond. This was done with the sanction of the Court. Similarly, in respect of the present suit bond, the Receivers and plaintiffs 1 and 2 agreed to take interest which would roughly work out compound interest at 9 per cent, per annum and did not insist on the higher rate of 10 1/2 per cent, per annum. They calculated the amount due on the bond on that footing and found that nearly a sum of Rs. 12,960 was due up to 20 March, 1911. The amount was to be paid by the various obligors of the bond in proportion to their respective shares, they themselves being divided. Accordingly, the following sums were paid towards the suit mortgage bond, namely, (1) Rs. 4,300 on 29th March, 1911, by the 1 defendant, (2) Rs. 4,300 on the same date by the 3 defendant, (3) Rs. 2,000 by 2nd defendant on the same date, and (4) Rs. 2,000 on 12 April, 1911 by the 2nd -defendant. There still remained due a sum of Rs. 360 which was afterwards paid by the 2nd defendant. These payments were accepted in full discharge of the debt due on the mortgage bond, Therefore the defendants pleaded that there is nothing due on the mortgage. The Subordinate Judge accepted the defendants plea and dismissed the suit. The plaintiffs appeal.

(2.) On behalf of the appellants it was contended that there is really no evidence to support the agreement and the subsequent discharge as pleaded by the defendants.

(3.) [The judgment then discusses the evidence on the point and concludes]