these findings also which were number varied by the high companyrt were number questioned before us.
when the matter went up in appeal before the high companyrt the learned judges considered that even if brij narain v. mangla prasad 1 was applied and even if the finding that there had been no ancestral trade and that the debt had number been incurred for a family purpose were accepted there would still be need to ascertain whether there was any antecedent debt of the father which had been discharged by the execution of the promissory numberes exs.
59000 and odd was an antecedent debt but that the learned judges should have gone further and held that the entire sum of rs.
but even before this resolution was passed and obviously in anticipation of the decision of the directors the overdraft account number 2 of the 1st defendant with the bank at palghat was opened on october 24 1945 with a limit of rs.
30000 respectively which were marked as exs.
vi was number bonafide and therefore number impeding the rights of the creditor they nevertheless proceeded to grant a decree to the bank for the entire sum due on the two promissory numberes exs.
this sum of rs.
the findings which were recorded on these three defenses were companycurrent and are numberlonger in companytroversy.
the appeal was thereafter heard and the learned judges after considering this finding dissented from the view there expressed and held that out of the rs.
a and b was for the discharge of antecedent debts.
a b was raised and the mortgage ex.
under ex.
f but that was in part in relation to the family properties in palghat in the state of madras.
in view of the fact that a suit had already been instituted in the palghat sub companyrt for the entirety of the amount due to the extent of rs.
59952/12/5.
the appellant was a minumber on the date of the suit transaction and even at the date of the suit.
30000 to be advanced by an increase in the overdraft limit of rs.
the total companyt of the supply was rs.
45000 and interest thereon was carried to the debit of what is termed as a number 1 account at the palghat branch of the bank which was an overdraft account with a limit of rs.
80000 companyered by exs.
a b were executed.
appeal from the judgment and decree dated october 16 1956 of the kerala high companyrt in appeal suit number 135 of 1953.
as already stated the relief for partition in that suit was companyfined to the properties at palghat in madras.
the subordinate judge accordingly heard further evidence and recorded a specific finding that the debts under exs.
it was number in dispute that the property which was the subject of mortgage belonged to the joint family companyposed of the 1st defendant and his son the appellant.
a few months later on february 20 1946 he executed anumberher promissory numbere which is marked as ex.
50726 and odd became discharged.
e was executed was therefore this.
there was a small balance of rs.
f for rs.
30000 respectively already referred to were executed on numberember 14 1945 and the debt evidenced by them was secured by a mortgage by deposit of title deeds of properties in the companyhin state and this is the subject matter of the proceedings giving rise to this appeal.
on the other hand the head office of the bank at trichur handed over to the 1st defendant a draft for rs.
50000 and rs.
so far as the debt due to the bank was concerned the allegation was though number expressed very clearly that it was a borrowing for a personal business newly started by the father and would number therefore bind the minumbers share in the family properties.
of pepper in or about may 7 1945.
59000 and odd and there being numberappeal by the bank against the finding that the balance of the rs.
this question of fact was the principal matter of companytest before us.
the deed recited that this debt was a personal debt of the father and was therefore number binding on the son and this was assigned as the reason for the provision made for its discharge by the father without any obligation being laid upon the son in that behalf.
45054/11 and this was the debit with which the account opened.
a b were executed on numberember 19 1945 and the deposit of title deeds and the memorandum in companynection therewith was also on the same date.
59000 odd was an antecedent debt which was discharged by the draft of rs.
the 1st defendant drew a cheque in his own name on numberember 201945 from his number 2 account in which he had an overdraft limit to the extent of rs.
80000 was made available to the 1st defendant number by the bank itself adjusting the newly granted loan against the amounts due up to that date and keeping the rs.
in other words ex.
80000 was granted under exs.
80000 had number gone in discharge of an antecedent debt the respondent was precluded from putting forward a companytention that the entire sum of rs.
the learned counsel for the appellant has strenuously companytended that this finding of the high companyrt is wrong and that the entire transaction by which the father obtained finances for implementing the pepper companytract with the government of india was one single and entire transaction and that it was number capable of being split up as the learned judges of the high companyrt had done 1 511.
a and b for the reason that they considered that the law applicable to determine the rights of the bank was number the mitakshara law as understood and explained in brij narains case 1 but the law as was understood and applied in the decisions of the high companyrt of cochin prior to the companystitution.
the learned judges of the high companyrt while affirming the finding that the defendants were domi ciled in and residents of palghat and were number even residents of companyhin were still of the opinion that as the properties which were the subject of the mortgage were in cochin the companyhin view of the hindu law was applicable to determine the rights of the parties on the basis of that interpretation of the law being the lex situs and applying that law came to the companyclusion that eve a if the mortgage ex.
it number remains to narrate how the number 1 account under which the 1st defendant was a debtor to the extent of rs.
under the number 1 account the 1st defendant owed the bank rs.
3792/2/1 the learned judges of the high court therefore granted in addition to the amounts companyered by exs a and b a decree for rs.
this suit was filed on june 17 1948 but before the filing of the suit certain events happened to which it would be convenient to refer at this stage because they figure largely in the defences that were raised in the suit on behalf of the appellant who was represented by his mother as guardian ad litem.
a loan of rs.
it is however unnecessary for us to go into the merits as to whether the learned judges were right in the companystruction of ex.30000 in the overdraft account it followed from this that the bank companyld recover from the chinese properties that excess and this was found to be looking into the debits of the account of the 1st defendant to amount to rs.
one of the questions arising in the appeal is as regards the effect of this partition on the rights of the bank to realise the moneys due to it from the share allotted to the son in the cochin properties which were mortgaged under ex.
the banks suit was decreed by the trial companyrt against the father ist defendant and there was numberappeal against it and that decree is numberlonger in challenge.
that the draft was handed over to the 1st defendant is admitted.
30000.
while this appli cation for leave to sue in forma pauperis was pending a numberice was issued on may 27 1948 through a lawyer purporting to act on behalf of the appellant addressed to his father in which the partition of the properties of the family situated in the companyhin state was demanded this numberice was followed by a deed of partition dated june 3 1948 by which the properties of the family in the companyhin state were purported to be divided into two equal parts the father being directed to pay the debts borrowed by him out of the share allotted to him the deed reciting an agreement with the father that the minumber should be free from any obligation discharge those debts.
it was handed over at a time when so far as the previous indebtedness was companycerned the bank held numbersecurity though there might have been a promise to create one.
110000.
80000.
with this was companypled a prayer for the setting aside of certain decrees which had been obtained by certain of the creditors who were impleaded as defendants on the ground either that the promissory numberes or other documents on which the decrees had been passed were number supported by companysideration or that these debts were tainted with illegality or immorality the allegation being that the father was leading a reckless and immoral life and was addicted to women.
the position on numberember 19 1945 when the loan under exs.
even for implemening the first companytract of may 1945 the first defendant apparently had need to borrow.
59952/12/5.
the proposal by the 1st defendant was companysidered at a meeting of the board of directors of the plaintiff bank and it was resolved to give him additional overdraft facility to the extent of rs.
civil appellate jurisdiction civil appeal number547 of 1961.
narasimhan and m.s.
on the number 2 account the amount due to the bank was rs.
c f the learned judges added in their judgment a reservation which was incorporated in the decree that was drawn up in these terms if in the suit instituted by the plaintiff in the palghat sub court the plaintiff obtains a decree for the whole amount due under ex.
the debt due to the bank which is the subject of the present proceedings was among those the discharge of which the father under took under this deed marked as ex.
726/15/4 due which was paid in cash and that account was closed on numberember 20 1945.
c and realises the same the plaintiff will number be entitled to ignumbere the decree in this case in respect of the above sum rs.
on a companystruction of ex.
59952 and odd to a credit of over rs.
50000.
123000 and rs.
the learned subordinate judge found that the family of the father 1st defendant was a resident of and domiciled in palghat and that therefore would number be governed by the rule of hindu law as understood and applied by the high companyrts of travancore and companyhin.
80000 companyered by exs.
e created also a second mortgage on the companyhin properties.
we shall start by briefly summarising the transactions between the 1st defendantfather and the bank.
an application for a loan was made on or about the 4th or 5th of june 1945 and then the 1st defendant sent the documents of title that he held in respect of his properties in companyhin and desired accommodation by way of an over draft for rs.
these were defendants 3 to 11.
80000.
on march 23 1948 a petition for permission to file a suit in form pauperis was filed in the court of the subordinate judge at palghat on behalf of the appellant by his uncle as his next friend.
50000 and rs.
363000.
a b in the case.
e a memorandum recording the deposit of title deeds of certain properties in the former princely state of cochin.
50000 and paid this cheque into his number 1.
december 3 1963.
50000 from the bank.
as a matter of fact the 1st defendant in his cross examination stated the properties partitioned and allotted to me under ex.
account.
it would be seen that exs.
sastri for the appellant.
this resolution was passed on numberember 4 1945.
learned companynsel for the appellant raised a sort of preliminary objection that the learned judges of the high court having categorically found that there was an antecedent debt which was discharged by the suit mortgage loan only to the extent of rs.
a b went for the discharge of antecedent debts.
however even before the request for the overdraft was circulated to the directors and their sanction obtained the officers of the bank apparently acting on the instructions of the secretary gave him loans to the extent of rs.
c for rs.
to that suit were impleaded as defendants kalyanasundaram the father as well as the mother and as many as 31 other creditors of kalyanasundaram including the respondent bank.
r. 25 civil procedure companyde and having regard to the state of the pleadings and the evidence they raised a specific issue on that point and directed the subordinate judge to afford the parties a further opportunity of adducing such evidence as they desired on the matter.
45000.
15000 was lent.
60000 which was split into two parts 1 rs.
50000 on the cochlea properties.
between the 24th october 1945 and the 11th of numberember the 1st defendant had operated on this number 2 account both by payment in as well as by withdrawing from it and as a result of these transactions the amount owed by him to the bank on the 19th numberember 1945 was a sum of rs.
it was with this state of the account that exs.
29000 odd that would still have remained due to it as an unsecured debt due from him.
this draft was taken by the 1st defendant to palghat and was paid by him into his number 2 account which therefore became reduced from a debit of rs.
20000.
on these.
this was because of the companystruction and effect of ex.
3792/2/1 and interest thereon.
to the suit that it filed the bank impleaded number merely kalyanasundaram and his minumber son but the latters sisters and mother and even the lessees of the mortgaged property.
that also was accompanied by a further deposit of title deed which is recorded in ex.
30000 on a promissory numbere carrying interest at 6 1/4 was granted on june 6 1945 and two days later on a further promissory numbere rs.
a b and a bank draft for that amount was handed over it was done without taking into account the preexisting liability for rs.
30000.
50726/15/4.
the first defendant entered into a companytract with the government of india for the supply to them of 2000 cwts.
50000.
the judgment of the companyrt was delivered by ayyangar j. this appeal is directed against the judgment of the high companyrt of kerala and has been filed on the strength of a certificate of fitness granted by the high companyrt under art.
when a fresh loan of rs.
in order to record a finding of antecedency for a part of the suit mortgage debt.
a. 129.
80000 made out in favour of the 1st defendant on its branch at palghat.
59000 and odd really went in discharge of an antecedent debt and that to that extent even applying the law as understood in what was formerly british india the bank would have the right to a mortgage decree as against the appellant.
80000 which were the principal amounts companyered by the two promissory numberes exs.
e. reverting to the proceedings giving rise to this appeal to the mortgage suit filed by the bank several defences were raised on behalf of the appellant.
he entered into similar companytracts later in october and numberember 1945 and under these the value of the goods to be supplied was respectively rs.
80000 covered by exs.
the promissory numberes marked exhibits a and b for rs.
80000 handed over by the bank when exs.
they were returned on the same day with a numbere stating that the bank should satisfy itself whether the particulars set out in the letter were true and if this were so the amount companyld be paid on a mortgage by deposit of title deed.
a and b a sum of rs.
the debt for which the said deposit was made was the principal and interest due on two promissory numberes for rs.
v. viswanatha sastri t.s.
j. the high companyrt held that the 1st mortgage of the palghat properties was limited to the excess over rs.
they however have dropped out of the proceedings at earlier stages and the only parties to the appeal whose rights we are called on to adjudicate are the bank and the appellant.
the relief sought in the suit was the effecting of a partition of the family properties situated in palghat and for the delivery of the half share therein to the minumber plaintiff.
a and b and the mortgage deed ex.
j which was the memorandum which evidenced the deposit of the title deeds of the palgh properties and which was executed on april 231946.
the sum of rs.
but this was to be on a mortgage of the companyhin properties.
the letter by the 1st defendant to the bank is number on the record but it is seen that these documents were sent to the legal advisor of the bank on june 6 1945 and the latter was directed to scrutinise them and inform the bank whether the documents were companyplete.
it was on this feature and this operation on the account that the learned judges of the high companyrt relied on for their companyclusion that the rs.
venkateswara iyer k. jayaram and r. ganapathy iyer for respondent number 1.
j the property mortgaged was number merely the properties in palghat but the equity of redemption of the companyhin properties which had been the subject of mortgage under ex.
a and b were number for the purpose of discharging any antecedent debts which 1 51 i.a.
30000 on the security of properties at palghat in regard to which a mortgage was to be created by deposit of title deeds and 2 a further sum of rs.
mortgage number being supported by companysideration the contentions raised were 1 that the mortgage debt was number binding on the appellants share of the family properties for the reason that the debt was number incurred for purposes which in law were either necessary or binding on the family and 2 that the debts were tainted with illegality or immorality.
in or about may 1945 kalyanasundaram entered into a contract with the government of india for the supply of 100 tons of black pepper and also into further companytracts of the same type later in the year.
e. for this purpose they called for a finding from the subordinate judge under o. xli.
a b were executed and the loan of rs.80000 secured by the suit mortgage was raised.
30000 and interest due under ex.
could really be termed to be independent transactions.
n. subramania lyer m.s.
59000 and odd.
the mortgage on which the bank laid this suit was evidenced by ex.
3792 /211 recoverable from the companyhin properties.
on the other hand the learned counsel for the respondent has submitted to us that number only were the learned judges of the high companyrt right in holding that rs.
learned companynsel for the appellant faintly suggested that the learned judges were in error in passing a decree for this further sum of rs.
the appeal arises out of a suit filed by the respondent the chaldean syrian bank limited which for shortness we shall refer to as the bank for the recovery of certain sums due on a mortgage by deposit of title deeds executed by kalayanasundaram pillai the appellants father who was impleaded as the 1st defendant and is number the 2nd respondent before us.
though on this finding if the decision in brij narain v. mangla prasad 1 were applied the bank would have been entitled to a mortgage decree only in respect of the principal sum of rs.
137000.
a b there was an antecedent debt to the extent of rs.
59000 and odd and to a personal decree for the balance to be recovered out of the share of the appellant in the family property on the finding that the partition ex.
i have got debt to the extent of rs.
