Defendants guilty of prevarication because mortgage deed is true and valid.

Defendants in O.S.No.1/1997 on the file of the Subordinate Judge, Thanjavur, are the appellants in the second appeal. The respondent herein filed the suit for a preliminary decree, directing the defendants to pay a sum of Rs.2,18,250/- with subsequent interest thereon at 6% per annum, and for a final decree for the sale of the mortgage property in default of payment on the following averments:

2. The defendants borrowed a sum of Rs.2,25,000/- from the plaintiff through one Mohan, their sister's son, agreeing to repay the said sum with 6% interest per annum within a period of six months and executed a simple mortgage. Towards the amount due they paid a sum of Rs.15,000/- and as they attempted to sell the mortgaged property without paying the amount due, it became necessary to file the suit.

3. The defendants resisted the suit inter alia on the following contentions:

It was false to say that they borrowed a sum of Rs.2,25,000/- from the plaintiff. Their sister's son Mohan had borrowed moneys on promissory notes from the plaintiff. The defendants were asked to execute the suit mortgage deed as security. No consideration passed to the defendants under the mortgage deed. The mortgage at best was only a collateral security. Without proceeding against the principal debtor and without exhausting the remedies against him the suit as framed, was not maintainable. Even assuming without admitting that the plaintiff could proceed against the defendants on the mortgage, in law, he ought to have discharged all the promissory notes or ought to have assigned the promissory notes in their favour. The suit filed was clearly not maintainable and was liable to be dismissed.

4. On the above pleadings, the learned Subordinate Judge framed the following issues:

(1) Whether the mortgage deed is not supported by consideration?

(2) Whether the endorsement of Rs.15,000/- made on the mortgage deed is not true?

(3) Whether the suit is bad for non-joinder of necessary parties?

(4) To what relief the plaintiff is entitled to?

5. On the side of the plaintiffs Exs.A.1 to A.8 were marked. The plaintiff besides examining himself as P.W.1, examined one Mohammed Farooq as P.W.2. On the side of the defendants there was no document marked. The third defendant examined himself as D.W.1 and Mohan was examined as D.W.2

6. The trial Court held as follows:

The suit mortgage is supported by consideration. The suit is not bad for non-joinder of Mohan as a party in as much as it has been accepted that Mohan had received the money. In as much as the plaintiff himself has accepted receipt of Rs.15,000/-, the endorsement is true. So holding, by judgment and decree, dt.6.4.2000, the trial Court decreed the suit as prayed for.

7. The defendants filed appeal in A.S.No.50/2000 before the Principal District Judge, Thanjavur. The learned Principal District Judge, by judgment and decree, dt.21.8.2000 dismissed the appeal confirming the decision of the trial Court. It is as against that the present second appeal has been filed.

8. Mr. T.R.Mani, learned Senior Counsel, made the following submissions:

The Courts below ought to have seen that no consideration passed to the defendants under the suit mortgage, either directly or through Mohan. If really moneys were paid to the defendants through Mohan, they would have been required to sign the promissory notes. The plaintiff had been shifting his case contrary to the pleadings. There is inconsistency in the pleading vis-a-vis the oral evidence on the side of the plaintiff. In his deposition, the plaintiff had said that he paid amount for the suit mortgage/Ex.A.1 and the defendants received the same, and that Ex.A.1 was executed for discharge of promissory notes executed by Mohan. The promissory notes were executed six months prior to Ex.A.1, and that Mohan gave the amounts borrowed on the promissory notes to the defendants. Thus, there was conflict regarding passing of consideration for Ex.A.1. In any event it was not established that money