T.S.P.L. Palaniappa Chettiar vs P.N. Subramania Ayyar and Others

Madhavan Nair, J.—The plaintiff is the appellant. The suit is to enforce the mortgage bond, Ex. A executed by defendant 1. Defendants 2

and 3 are his sons. The bond is attested by defendant 2. The defendants'' case is that there was no family necessity to support the bond and

therefore it is not binding on them. The deed provided that the principal amount should be paid with interest at 12 per cent within, six months and in

default interest should be added to the principal and the entire amount paid with interest added to interest at 18 per cent at the end of every six

months. It was also pleaded by the defendants that the interest claimed is penal and should not be allowed. The learned Judge accepted the plea of

defendants 2 and 3 that the mortgage bond is not supported by necessity. In the result he gave a mortgage decree against defendant 1 and passed

a deoree in the event of the amount not being realized from the share of the property belonging to defendant 1, against defendants 2 and 3 also. As

regards interest, he awarded against defendant 1 compound interest at 12 per cent with annual rests. The interest as against defendants 2 and 3

was still further reduced by the learned Judge. In this Court it has been frankly conceded by the respondent''s learned Counsel that there is no

justification if a mortgage decree is to be passed against defendants 2 and 3 to differentiate between them and defendant 1 with regard to interest

awarded by the Judge and that the rate of interest allowed against defendant 1 may well be allowed against defendants 2 and 3 also. So the real

question for us decide is whether the mortgage is binding on defendants 2 and 3 also.

It is argued on behalf of the appellant that not only has defendant 2 attested the mortgage document but by selling the property under two

subsequent documents, defendants 2 and 3 have paid off a portion of the principal and interest due under the document, thereby admitting the

binding character of the mortgage. So far as the attestation is concerned, the learned Judge is of opinion that the attestation of defendant 2 has not

been proved. On examination of the evidence we think that that conclusion is correct. The only question therefore :is whether by being parties to

the subsequent documents Exs. B and C defendants 2 and 3 have admitted the binding nature of the document. In Ex. B, defendant 2 is a party as

agent of defendant 1 and he has signed it for himself and there it is stated:

The sum received by us in our having authorized you to pay the principal and interest remaining due after what has been paid by us under the

hypothecation debt bond which we have executed.

Defendant 3 is also a party to the document. No doubt it is not quite correct to say that the hypothecation bond has been executed by all of

them because defendants 2 and 3 were not parties to it. But there can be no doubt that by asking the vendee to pay for the amount due on the

bond, money from the sale proceeds, they have admitted the binding nature of the debt. To Ex. C also defendants 2 and 3 are parties. The learned

Judge does not give effect to this admission because of the decision of the Privy Council in Bam Bhujawan v. Nathu Bam AIR 1923 PC 37. But it

is clear that having regard to the facts, that decision is inapplicable to the present case. There, the words that the Privy Council had to consider

were:

The bond is allowed to stand good as before i.e., the principal, interest and compound interest will remain due from me.

On a consideration of these words the Privy Council held that it was open to the parties to dispute the binding nature of the bond. The parties

concerned in that case simply said that the bond is allowed to stand good as before without saying anything about its binding character either

expressly or impliedly. Tn the case before us, the parties have gone further than that, because they have sold their family property and from out of

the sale proceeds they arranged to pay off the principal and interest. In Mayne''s Book on Hindu Law (9th Edn.), at p. 473 it is stated:

Any want of capacity on the part of the father to alienate the family property may be supplied by the consent of the coparcaners. Such con-sent

may either be express or implied from their conduct at or after the time of the transaction.

Regard being had to Exs. Band C we think it is not open to defendants 2 and 3 now to say that the debt is not binding. We would therefore

pass a mortgage decree against defendants 2 and 3 also and as we have said, the rate of interest to be awarded will be the same as was awarded

in the decree passed by the Judge against defendant 1. The decree of the lower Court is accordingly modified. The parties will ,pay and receive

proportionate costs in this appeal. (The appeal having been set down to be spoken to on the 16tb day of February 1933, the Court made the

following.

Order

Time for redemption three months from the date of the judgment. The appeal having again been set down to be spoken to this day, the Court

made the following.

Order

The appellant is entitled to the rate of interest allowed by the lower Court till the date fixed for redemption by this Court. This is not objected to

by the respondent.