Judgement

Consolidated Cross-Appeals (No. 30 of 1932, and No. 98 of 1933) from a decree of the High Court (May 1, 1930) varying a decree of the Court of the Government Agent, East Godaveri (July 6, 1925).

The plaintiff, who had obtained a decree against the defendant for more than four lakhs of rupees in respect of money lent on the security of certain property, brought the mortgaged property to sale by auction and himself purchased it. The balance of the purchase price, after deducting the sum due to the plaintiff, was claimed by the puisne mortgagees. By arrangement with the defendant, who was then a minor, and his guardian, it was arranged that the plaintiff should re-convey to the minor for Rs. 139,986 (a sum equal to the above mentioned balance of the purchase price) a certain village, part of the property which he (the plaintiff) had bought by auction, in consideration of the sons not taking any proceedings to set aside the auction sale. It was agreed that the minors guardian should pay the Rs. 139,986, and the compromise transaction was duly sanctioned by the Court as beneficial to the minor. Nothing having been paid under that arrangement, the plaintiff sued the minor, who had attained majority, to recover the money, alleging that he had a vendors lien on the village in question for the unpaid purchase price.

The question in this appeal was whether the transaction whereby the village became the property of the defendant did or did not amount to a sale.

The facts appear from the judgment of the Judicial Committee.

The trial judge granted the plaintiff a decree for sale of the village.

On appeal the High Court (Beasley C.J. and Curgenven J.) held that the transfer of the village was not a sale which would create a lien in favour of the plaintiff; but treating the debt as unsecured they directed that it should be realized from the " general assets of the defendant. The appeal is reported at ( 1931) I. L. R. 54 M. 163.

1936. Jan. 30, 31. Sidney Smith for the appellant.

De Gruyther K.C., Subba Row and Sastri for the respondents.

[Reference was made to Waghela Rajsanji v. Shekh Masludin (( 1887) L. R. 14 I.A. 89.), Ramajogayya v. Jagannadhan (( 1918) I. L. R. 42 M. 185, 187.), Hunooman-persaud Panday v.

2 Law. Rep. 63 Ind. App. 304 ( 1935- 1936) Rajah Kocharlakota v. Maharajah Ravu Venkata

84

Musummat Babooee Munraj Koonweree (( 1856) 6 Moo. I. A. 393.), Turner v. Edgell (( 1837) 6 L.

J. Eq. (n. s.) 201.), Kedar Nath Shaha v. Emperor (( 1903) I. L. R. 30 C. 921.), Madam Pillai v. Badrakali Ammal (( 1922) I. L. R. 45 M. 612.), Bhawani Kumar v. Mathura Prasad Singh (( 1912) L.

R. 39 I. A. 228.), and Ariyaputhira v. Muthukomaraswami (( 1912) I. L. R. 37 M. 423.).]

April 28. The judgment of their Lordships was delivered by

SIR SHADI LAL. The circumstances which led to the action giving rise to these consolidated appeals, brought by both the parties, may be shortly stated. One Krishna Rao, the late Zamindar of Polavaram in the Madras Presidency, borrowed, on different dates, from the Maharajah of Pittapur (to be described hereinafter as the plaintiff) large sums of money; and secured the payment thereof by executing three successive mortgages of his estate in favour of the creditor. The last of these mortgages was granted on October 22, 1913, as a security for a loan of more than three lakhs of rupees; and it was on the strength of this mortgage that the plaintiff instituted, after the death of the mortgagor, a suit for the recovery of the debt, impleading as defendant the mortgagors widow. She subsequently adopted a minor boy, Jagannatha Rao, as a son to her deceased husband, and the adopted son was then added as a defendant (to be referred to hereinafter as the defendant). The suit resulted in a decree for more than four lakhs of rupees, to be realized by the sale of the mortgaged property. The decree-holder brought the property to sale, and on October 28, 1920, he himself purchased it, with the leave of the Court, for six lakh