Execution of mortgage admitted but passing of consideration denied.

M.Thanikachalam, J.

The unsuccessful plaintiff before the trial Court is the appellant.

2. The claim of the plaintiff/appellant in brief:

The husband of the first defendant and the father of defendants 2 to 6 had executed a registered mortgage deed dated 5.4.1972, in respect of the suit property, for himself and on behalf of his then minor sons, viz., the defendants 4 & 6 along with the second defendant, in favour of the plaintiff, for a sum of Rs.15,000/-, which was borrowed by the deceased Veerasamy Reddiyar, on a promissory note, for the purchase of the lands from one P.V. Raghava Reddy of Agaram Village. In pursuance of the mortgage deed dated 5.4.1972, pronote debt was discharged on the same day and after its discharge, the pronote was handed over to the deceased Veerasamy Reddiar and the second defendant. Neither the Veerasamy Reddiar, nor the defendants paid any amount, towards the mortgage deed, despite repeated demands made by the plaintiff. Veerasamy Reddiar died leaving the defendants, as his legal heirs, who are entitled to inherit the suit property, which is the subject matter of the mortgage and in this view, they are liable to answer the mortgage debt. The defendants are not entitled to the benefits of the Debt Relief Act. The effort of the plaintiff, to recover the amount, outside the Court, by repeated demands, ended in vain, resulting the suit, for the recovery of a sum of Rs.31,200/-, with subsequent interest.

3. Objections to the plaintiff's claim in brief.

Veerasamy Reddiar had not executed any pronote, as alleged in the plaint. The suit mortgage was executed without consideration and therefore, the defendants are not liable to pay the suit claim. Thiru Raghava Reddy offered to sell his lands, for a stated consideration of Rs.45,000/-. Veerasamy Reddiar paid Rs.10,000/- and Rs.5,000/- on different dates obtaining agreements. For completing the transaction, a further sum of Rs.25,000/- was required urgently and because of this urgency and pressure given by Raghava Reddy, the mortgage deed was executed on the specific understanding, that money should be paid after registration, for procuring the sale deed. As per the undertaking, the husband of the plaintiff failed to pay the amount and the plaintiff is not at all known to the defendants. Since the suit mortgage is not supported by consideration and the defendants are entitled to the benefits of Debt Relief Acts 8/73, 40/79, 40/80 and 13/80 being agriculturists, the plaintiff is not entitled to claim, and recover any amount and the suit deserves to be dismissed.

4. The learned Additional Subordinate Judge, Vellore on the basis of the above pleadings, framing as many as six issues, proceeded with the trial of the suit. The plaintiff and her husband had been examined as P.Ws.1 & 2 and the scribe of the document viz., Ex.A1 had been examined as P.W.3. To claim the benefits of the Debt Relief Acts, producing three documents and to nullify the evidence adduced on behalf of the plaintiff, the first defendant alone had been examined as D.W.1.

5. The learned trial Judge, appreciating the pleadings, as well as scanning the materials, felt that the execution of Ex.A1, as well as the passing of consideration thereunder are not properly proved, since none of the attestors to the document has been examined. Further, the evidence brought to surface, that the defendants are not entitled to the benefits of the Debt Relief Acts1, as claimed. In view of the specific finding, that the plaintiff has miserably failed, to prove the passing of consideration under Ex.A1, the trial Court declined to decree the suit, resulting dismissal of the same, as per the Judgment dated 29.6.1989, which is under challenge in this appeal.

6. Heard the learned counsel for the appellant, Mr.G.K. Selvarayan and the learned counsel for the respondents, Mr. N. Subbarayalu.

7. Mr. G.K. Selvarayan, appearing for the appellant submits,

(i) that the trial Court had committed an error in concluding