SORNAMMAL Vs. THANGAVELU MUDALIAR

JUDGEMENT

(1.) The facts out of which this appeal has arisen are not in dispute and lie in a narrow compass. A mortgage was executed on the 24 April, 1915, by one Kandaswamy, father of defendants 1 and 2 in favour of Muthukumaraswami Pillai who died in 1918 leaving him surviving a widow and two daughters. The widow appears to have died shortly after her husband and we are not concerned with her in the present litigation. The money due under the mortgage was not paid and one of Muthukumaraswami's daughters brought the present suit in June, 1932, for the sale of mortgaged property but she did not implead the other daughter as a party. This led the third defendant, who had purchased the mortgaged property from Kandaswamy and undertaken to discharge the mortgage debt, to raise the objection that the plaintiff was "not entitled solely and exclusively to sue on the mortgage bond." Various other defences were also raised by the third defendant and his minor son the fourth defendant; but they were decided against them. The plea that the plaintiff was not entitled to sue alone was overruled by the trial Court but was upheld in appeal by the learned District Judge of East Tanjore and the suit was ordered to be dismissed. The plaintiff consequently appeals and the only question to be determined is whether the plaintiff was entitled to sue alone on the basis of the mortgage deed executed in her father's favour or rather whether the decree passed in her favour by the trial Court had been wrongly set aside by the lower appellate Court. It might be stated here that the second daughter of Muthukumaraswami died during the pendency of the suit and it was not disputed that the two daughters of Muthukumara-swatny had taken their father's property as joint tenants with rights of survivorship although their interests were limited to their lives only.

(2.) The determination, of the question whether the plaintiff was entitled to sue depends mainly on a compromise arrived between her and her sister on the 8 October, 1930, in a suit for partition instituted by the latter in the Court of the District Munsif of Mayavaram (O.S. No. 5 of 1930) and embodied, in a decree (Exhibit D). The lower appellate Court was of opinion that the decree embodying the compromise was inadmissible in evidence for want of registration as the mortgage in suit had not formed the subject-matter of that litigation and did not therefore fall within the category of decrees which were exempt from registration. This decision has been challenged on three or four grounds: - firstly that the suit (O.S. No. 5 of 1930) was for general partition and the mortgage-deed must be, in the absence of any evidence to the contrary, presumed to have formed the subject-matter of that suit; secondly, because no rights in the mortgage were created in the plaintiff for the first time and the decree or the compromise on which the decree was based only recorded or recited an event which had happened in the past. Mr. Raja Aiyar has, in the alternative, submitted that even if the decree were held to be inadmissible in evidence, the decree passed by the trial Court should not have been set aside as the event of the plaintiff's sister's death which occurred during the pendency of the suit could not have been ignored and the plaintiff's capacity to sue, even if defective at the time when the suit was instituted, could not be held to have remained so at the time when the suit came up for trial. In the end it was urged that the suit could not have been dismissed for non-joinder of the plaintiff's sister and it was incumbent on the lower appellate Court to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Mr. Ramaswami Aiyar on the other hand contends that in the face of a concurrent finding by both the lower Courts to the effect that the mortgage did not form the subject-matter of the suit for partition, it would not be possible for this Court to hold otherwise. He also contended that Clause 7 of the decree could not be construed so as to contain a record merely of a past event. The present suit was not, according to him, dismissed on account of non-joinder but really on a question of limitation as it was instituted shortly before the expiry of the period of limitation provided for such suits and would have met the same fate even if the plaintiff's sister had remained alive. He also submitted that the plaintiff's status on the date of the suit could not be improved by the sister's subsequent death and it is only with the date on which the suit was instituted that we are now concerned.

(3.) In order to appreciate the various contentions raised by the parties it would be better to have a clear idea as to what this clause in the decree actually stated. It reads as follows: As regards the recovery by the deed for Rs. 1,500, executed on 24 April, 1915, by Kandaswami Mudaliar in favour of the said Muthukumaraswami Pillai as aforesaid, the plaintiff has no objection whatsoever.