Judgement

Law. Rep. 68 Ind. App. 136 ( 1940- 1941)

P. T. Krishnaswami Ayyangar V. C hevula Kamalamma 39

Appeal (No. 28 of 1939) from a decree of the High Court (July 26, 1935) reversing a decree of the High Court on its original (side (September 6, 1932).

The following facts are taken from the judgment of the Judicial Committee.

Chevula Venkatasubbaya Chetti, now deceased [hereinafter referred to as "the testator”], was the owner of two houses in Madras, to be referred to as Nos. 60 and 68 respectively.

On June 2, 1919, the testator executed a promissory note for Rs. 12,000, bearing interest at nine per cent, per annum, in favour of one Rangayya Chetti, and deposited with him the title of deeds of No. 60 as security. At the same time the testator executed a document, headed "Collateral Security "Bond,” which recorded the fact of the deposit of the title deeds as collateral security in respect of the promissory note, and then proceeded as follows "I shall therefore pay you the "principal and interest accruing due on the said promissory "note, from this date, in full, and redeem the said title deeds. "To this effect is the collateral security bond executed by "me with consent." That document was never registered.

The testator died in 1920, having by his will appointed four executors, of whom the respondents 1 and 2, Chevula Kamalamma and Yekulur Sriramulu Chetti, and one Chevula Subrahmanyam Chetti, appeared to be alone surviving. It should be mentioned that the will contained an express provision that the two houses should not be sold.

Rangayya Chetti died in 1921, and on October 13, 1930, his junior widow, Gouriamma, who was his sole legal personal representative, instituted the proceedings out of which this appeal arose for the purpose of enforcing the equitable mortgage purporting to have been created in favour of Rangayya by the deposit of the title deeds of No. 60.

The first three defendants to the suit were the surviving executors of the testator. The fourth defendant was the present appellant, P. T. Krishnaswami Ayyangar. The reason for adding him as a party was that on June 26, 1924, the first three defendants, and on November 24 of the same year the first two defendants, as executors of the testator had executed mortgages in favour of the appellant of both the houses to secure various sums of money which they had borrowed from him or which he had paid at their request. He was therefore, assuming those mortgages to have been valid, a necessary party to the proceedings. The relief that Gouriamma asked for by her plaint was the usual relief sought in a suit by a mortgagee to enforce his security.

The first two defendants (being the present respondents 1 and 2) by their written statement impeached the validity of the equitable mortgage in suit on the ground that it was created by the collateral security bond and that the document had never been registered. The third defendant, Subrahmanyam, neither filed a written statement nor took part in any of the subsequent proceedings in the suit. The appellant by his written statement put the plaintiff to proof of the equitable mortgage, but did not in terms impeach its validity.

Of the issues directed to be tried, the only ones now material were to the following effect (2.) Is the mortgage sued upon invalid ? (5.) Are the mortgages in favour of the fourth defendant binding on the estate of the testator? (6.) What is the amount due upon those mortgages ?

On September 6, 1932, the case came on for trial before Beasley C.J. After a consideration of the relevant authorities he came to the conclusion that the collateral security bond did not require

Law. Rep. 68 Ind. App. 136 ( 1940- 1941)

P. T. Krishnaswami Ayyangar V. C hevula Kamalamma

40

registration, and that a valid equitable mortgage upon No. 60 had been created by the deposit of the title deeds. He accordingly pronounced the usual mortgage decree in favour of the plaintiff. The appellant did not at the trial adduce any evidence