Judgment

VENKATARAMA AYYAR, J. : These appeals arise out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A dated 4-5-1923, executed by the defendant in favour of one Radha Prasad Bhagat. The subject-matter of the mortgage is an estate called the Bodogodo Zemin situated in what was the District of Ganjam in the Province of Madras and now comprised in the State of Orissa, and governed by the provisions of the Madras Impartible Estates Act, 2 of 1904. The Mortgage is for Rs. 1,25,000 and the deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a promissory note executed on 30-3-1923, that the balance of Rs. 1,12,500 was paid to him in cash, and that the entire amount was borrowed for meeting the expenses of the marriage of his second daughter with the eldest son of the Rajah of Talcher.

The marriage, in fact, took place on 27-4-1923. Though the deed recites that Rs. 1,12,500 was paid in cash, the case of the plaintiffs is that it was, in fact, paid on 14-4-1923 on the authority of the defendant to his manager, one Mr. Henry Tapp after the mortgage bond was registered, which was on 10-4-1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000. The mortgagee died on 18-11-1933, and thereafter his legal representatives filed the suit out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property.

2. The defendant resisted the suit on several grounds. He pleaded that the mortgage was supported by consideration only to the extent of Rs. 25,000 and that it had become discharged by the payments made in 1926 and 1927. He also contended that the mortgage bond was not duly attested or validly registered and that it was therefore void and unenforceable.

3. The subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for Rs. 12,500 dated 30-3-1923, Exhibit J, and that it was really a salami , but that the balance of Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant. He also held that the mortgage bond was duly attested and validly registered, and a decree was passed in accordance with these findings.

4. Bot the parties took up the matter in appeal to the High Court of Patna. The plaintiffs filed A. S. No. 10 of 1937 claiming that Exhibit J was supported by consideration, and the defendant filed A. S. No. 11 of 1937 pleading that the alleged payment of Rs. 1,12,500 to Mr. Tapp was unauthorised, and that the mortgage bond was void as it was neither duly attested nor properly registered.

The High Court concurred with the Subordinate Judge in finding that that Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant, and that the bond was duly attested and registered. But as regards the promissory note. Exhibit J, it held differing from the Subordinate Judge that it was also supported by consideration. Against this decision, the defendant appeals, and repeats all the contentions urged by him in the Courts below.

5. On the question of consideration for Exhibit A, it was not disputed before us that the mortgagee paid Rs. 1,12,500 to Mr. Tapp under the receipt, Exhibit D dated 14-4-1923. The contention was limited to the question whether such payment was made under the authority of the defendant. The plaintiffs rely on Exhibits C and H-1 as containing that authority. Exhibit C is a letter dated 9-4-1923 purporting to be signed by the defendant and addressed to Radha Prasad and is as follows:

"Sir,

I have sent the registered mortgage bond executed by me through Mr. Henry Tapp. You will please keep (accept) the aforesaid bond and send rupees one lakh, twelve thousand and five hundred (1,12,500) through our Dewan, Mr. Henry Tapp.

This is all.

Yours

Sd. K. Ch. S. Deo

Zamindar of Bodagada".

Exhibit H-1 is a telegram sent in the name of the defendant to Radha Prasad on 14-4-1923 and runs as follows:

"Read your wire. Please p