Marshaling-Scope of.

Rangan Chetti the owner of two items of properties mortgaged them under a mortgage deed, Exhibit A-1, dated 27th December, 1950 to secure a debt of Rs. 500 in favour of his sister Thimmakkal. On 4th April, 1951, he sold one of the items mortgaged to Kamakshi under a registered sale deed, Exhibit B-4. Rangan Chetti died sometime in 1951 or 1952 leaving behind him as his heirs his two sisters Thimmakkal the mortgagee under Exhibit A-1 and another Lakshmi Ammal. Thimmakkal filed O.S. No. 264 of 1955 on the file of the District Munsif’s Court, Kallakurichi, seeking to enforce the mortgage in her favour, Exhibit A-1, by bringing to sale the hypotheca. The first defendant in the suit is her sister, Lakshmi Ammal who is jointly entitled along with her to succeed to the estate of Rangan Chetti. The second defendant in the suit was impleaded on the footing that he was a purchaser under the registered sale deed, Exhibit B-3, dated 19th February, 1951 of another item of hypotheca from Rangan Chetti, The third defendant was the purchaser under Exhibit B-4, Kamakshi, referred to above. The first defendant remained ex parte and defendants 2 and 3 contested the suit. The plaintiff subsequently gave up the second defendant and the third defendant therefore became the only contestant. She contended that the mortgage sued upon was not supported by consideration, and that in any event the plaintiff was disentitled to sue, as her rights as a mortgagee became merged with the rights of the mortgagor inherited by her along with her sister the first defendant.

The learned District Munsif of Kallakurichi who tried the suit found that the mortgage was fully supported by consideration and that the plaintiff was entitled to sue upon the mortgage, and accordingly granted a preliminary mortgage decree in favour of the plaintiff as prayed for.

The third defendant preferred an appeal, A.S. No. 92 of 1956 on the file of the Court of the Subordinate Judge of Cuddalore against the said Judgment and Decree of the learned District Munsif, and the learned Subordinate Judge reversed the decree and judgment of the trial Court, and non-suited the plaintiff. He found that the suit mortgage was supported by consideration only to the extent of Rs. 250 and that the plaintiff was disentitled to sue by reason of the merger of the rights of mortgagee and mortgagor in herself.

This Second Appeal has been preferred by the plaintiff. When the Second Appeal was heard by me in the first instance I called for a finding from the trial Court on the following two questions:-(i) Whether item 1 of the suit mortgage was sold by Rangan Chetti to the second defendant in the suit under Exhibit B-3 and if not who was in possession of that item on the date of the suit and (ii) what was the market value of items 1 and 2 of the suit properties on the date of the suit and on the date of the mortgage. Parties were given liberty to adduce fresh evidence.

The learned District Munsif of Kallakurichi has now given a finding that item 1 of the suit mortgage was not sold by Rangan Chetti to the second defendant and that it was in the possession of the plaintiff. He has further found the market value of the items 1 and 2 of the suit properties on the date of the suit was Rs. 400 and Rs. 150 and on the date of the mortgage Rs. 350 and Rs. 250 respectively. This finding has not been challenged before me by the parties to the appeal. The learned counsel on both sides were heard after the return of the finding.

On behalf of the appellant it was conceded that the finding of the learned Subordinate Judge holding that the suit mortgage was supported by consideration only to the extent of Rs. 250 was correct. The only question that arises for consideration is whether the appellant is entitled to any relief in this suit and if so to what extent. The learned counsel for the respondent frankly submitted that he could not support the dismissal of the suit by the lower appellate Court. He submitted that he wa