Unnamalai Ammal and Another vs Abboy Chetty and Another

This suit has been brought to enforce three mortgages evidenced by Exs. A, B and D. Audi and Ramaswami were father and son. Exs. A & B

were executed by Ramaswami and D was executed after Ramaswami''s death by Audi and Ramaswami''s widows, the 1st defendant and another.

Subsequent to the execution of these mortgages, the 1st defendant obtained a decree for maintenance against Audi and in execution of it she and

her father, the 10th defendant, became the purchasers of the properties which had been previously mortgaged.

In regard to the first two deeds the question is, did the interest of Audi pass to the plaintiffs, the mortgagees. They were executed by

Ramaswami, the son, but the Lower Court has found, and we agree with the finding, that he was the manager of the family. As regards the

question whether the moneys were borrowed for family purposes, the learned Judge relying mainly on oral evidence and probabilities has come to

the conclusion that they were not so borrowed. He, however, has failed to give effect to the admission contained in the later document,Ex.D. It is

very clearly stated in it that the moneys under Exs. A & B were borrowed by Ramaswami for purposes binding on the family and as we have said

it was executed not only by Audi but also by the 1st defendant. No reason has been shown why this admission should not be acted on. It must be

remembered that evidence in the suit was given long after the transaction, whereas the interval of time between Exs. A and B on the one hand and

D on the other was only four years. The Lower Court has, however, come to the conclusion that A & B are binding upon the share of Audi but for

a different reason. It has been held that by Ex. D Audi ratified the mortgages A and B. This view may be open to question but we agree with the

conclusion of the Lower Court.

Next we have to deal with Ex. D It was executed shortly after the death of Ramaswami. The consideration, namely, Rs. 4,000 was made up

thus:

(1) Balance of interest due under Exs. A and B ... 382

(2) Balance due by Ramaswami for goods supplied ... 130

(3) Cost of Stamp for Ex. D ... 20

(4) Amount received in cash ... 3,468

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Total Rupees ... 4,000

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The plaintiffs admitted that the fourth item was not due as they had not paid it and so no question arises in regard to it. Regarding the other three

items, the Lower Court has held against the plaintiffs. This finding cannot be supported. There is clear admission of Audi (Ex. E) which the Lower

Court has somehow overlooked. According to that, all the sums excepting the last were received by the executants. The first item of D is the

balance of interest due under A and B. This item having been disallowed, the learned Judge directed that interest upon A and B should be

calculated as if credit for interest in D had not been given. As we are holding that the first item in D is due, it will not be necessary to adopt this

course. In calculating interest under A and B credit must be given for the amount of interest included in D. As regards D, our conclusion is, that the

first three sums are due and they will carry interest at the rate provided in the document.

There remains lastly the question of law raised by Mr. Srinivasagopalachari, the earned Counsel for the appellants. He has contended that in

Exs. A and B Ramaswami described the properties as absolutely belonging to him but, as in fact he was entitled only to a half-share, the mortgages

must operate only on that share. We cannot accept this contention. The properties that were mortgaged were the entire properties and not

Ramaswami''s share in them. The description given shows that it was the entire property that was intended to be mortgaged. The recital that the

executant was the owner may be treated as surplusage. Not only did he purport to mortgage the entire property, but on our finding he possessed

the legal capacity to do so. As the manager of the family he was competent to enter into a transaction binding on the whole property. There were

thus three elements present. First, he purported to mortgage the whole property; secondly, he was legally competent to do so; and, thirdly, there is

nothing in the document to repel the natural inference that what was intended to be conveyed was the whole property. Saukaranurayana Pillai v.

Rajamani (1923) 46 M.L.J. 314 and Sabapathy Chetty v. Ponnuswami Chetty (1914) 28 IC 365 are clear authorities for the position that in the

circumstances the interest conveyed should be held to be that which the executant was capable of conveying. Bal-want Singh v. R. Clancy ILR 34

(1912) A. 296, strongly relied on by the learned counsel, was distinguished in those two cases, and we adopt the observations on this matter in the

judgments in those cases. We may observe that Sabapathy Chatty v. Ponnuswami Chetty (1914) 28 IC 365 is almost on all fours with the present.

The decree of the Lower Court is modified and the following decree is substituted. There will be a mortgage decree for the amounts due under

A and B. There will similarly be a mortgage decree for the amount due under D. The plaintiffs will first bring to sale the properties in A and B for

the amounts due under them. If after satisfaction of those mortgages there is any balance, that will be applied towards the debt due under D. The

properties mentioned in D will be sold only in the event of any balance remaining even after the moneys have been so applied.

The appellants will pay the respondents the costs of the appeal. There will be no order as to costs in the memorandum of objections.