Mortgage done by father if binding on son’s interest in the property.

This appeal is against the decree and judgment in O.S. No. 14 of 1950 on the file of the Sub-Court, Pudukottai. The second plaintiff is the appellant. The suit was laid for recovery of a sum of Rs. 30,236-2-0 on the foot of a mortgage executed by the first respondent in favour of Lakshmanan Chettiar the husband of the appellant, for a sum of Rs. 10,750 with subsequent interest at 9 per cent. per annum compoundable every 12 months. It was stated that Lakshmanan Chettiar was a benamidar for the appellant. . Both Lakshmanan Chettiar and the appellant filed the suit, impleading the mortgagor as well as his two sons as parties thereto. Respondents 2 and 3 are the sons of the mortgagor. Respondents 4 and 5 are the subsequent encumbrancer and purchaser. The first plaintiff Lakshmanan Chettiar, died, pending the suit.

At the time of the mortgage the 1st respondent was a member of a Hindu joint family consisting of himself and his younger brother. The mortgage, Exhibit A-1 created a security over three items of properties:

(1) a half share in a house in Pudukottai, (2) lands in the village of Rangiyam and (3) a half share in certain lands situated in Ammampatti village. Subsequent to the mortgage, there were disputes between the mortgagor and his brother, which resulted in the filing of C.S. No. 816 of 1938, on the file of the then Chief Court, Pudukottai, for partition of the joint family properties. The mortgagee, Lakshmanan Chettiar, was also made a party to the action. In the final decree, the first respondent did not get items 1 and 2 mentioned above for his share but was allotted the whole of item 3, besides certain other properties.

In the mortgage suit, out of which this appeal arises the appellant and her husband claimed that the amount due should be made recoverable on the security of the other items that fell to the share of the 1st respondent under the partition decree, as they should properly be held to be a substituted security. The defence to the suit was substantially threefold ; (1) that the mortgage was not binding on the interests of the 2nd and 3rd respondents, as the money was advanced neither for the necessities of the family nor for the actual discharge of any antecedent debt of the 1st respondent, (2) that the mortgagor was entitled to reliefs under the Madras Agriculturists’ Relief Act (IV of 1938), and (3) that the mortgagee would not be entitled to a charge on the other properties allotted to the 1st respondent’s branch in the partition except to an half share of the lands in Ammampatti village which was secured to him under the mortgage.

The learned Subordinate Judge found that the amount advanced under Exhibit A-1 was utilised in discharge of the antecedent debt of the first respondent only to the extent of Rs. 3,750, and that the balance was utilised in connection with the expenses of a bus service, a new business started by the first respondent. On that finding, he held (1) that the mortgage would be binding on respondents 2 and 3 only to the extent of Rs. 3,750; (2) that having regard to the value of the properties mortgaged, the ends of justice and equities of the case would be sufficiently met if a charge were created over the other half share in the Ammampatti lands, that is, the entire lands in Ammampatti village which fell to the share of the 1st respondent; and (3) hat the respondents were entitled to relief under the Madras Agriculturists’ Relief Act and that after applying the provisions of the Act, the amount due under the mortgage would be only Rs. 18,600-7-9. On those findings, he passed a preliminary mortgage decree against the 1st respondent for Rs. 18,600-7-9, and respondents 2 and 3 were declared liable for a sum of Rs. 3,750 therein with subsequent interest according to the provisions of Madras Act (IV of 1938). The second plaintiff has preferred this appeal in so far as the decision of the lower Court went against her, namely, (i) in regard to the liability of responde