the recitals of this documents are clear and unambiguous.
in the result he allowed the petition and granted a certificate to the petitioners and respondents 2 to 14 to the effect that the amount due under the mortgage on the date he made the order was rs.
12th april 1934 in the ledger book under the head kulathoorayyan in the accounts maintained in respect of our common family business the interest accrued thereon from the aforesaid date the sum of rs.
number 43 of 1949 on the file of the court of subordinate judge palghat under s. 9 a and 19 a of the act for scaling down the mortgage debt thereunder.
under para b of s. 9 a 10 ii of the act two questions arise namely 1 whether the mortgage rights in the property were legally transferred in trust in favour of the charity and 2 if so whether the transfer was for valuable companysideration.
in the result the high companyrt disagreeing with the view expressed by the learned subordinate judge set aside the order made by him and dismissed the petition filed by the mortgagors for scaling down the debt.
the mortgage was redeemable after the expiry of 60 years from the date of the mortgage.
on the first question the high companyrt held that the family transferred the mortgage interest for valuable companysideration in favour of the charity within the meaning of para b of s. 9 a 10 ii of the act and on the second question it held that the expression partition in s. 9 a 10 ii c meant partition by metes and bounds and though it was effected during the relevant period the mortgage interest in the property was number the subject of partition and therefore the said provision was number attracted to the mortgage in question.
the subject matter of the trust was the said amount and the properties.
8.788 14 10.
under this document the members of the family set apart a specific amount and other properties for charitable purposes.
the document.
prasad learned companynsel for the appellants companytended that i there was numbertransfer of the mortgage property in trust for a charity but the said property companytinued to be the property of the joint family though a charge was created on its income for some charitable purposes and ii there was numbertransfer of the mortgage interest for valuable consideration.
against the order of the learned subordinate judge the 17th respondent preferred an appeal to the high companyrt of judicature at madras being a.a.0.
appeal from the judgment and order dated numberember 8 1955 of the madras high companyrt in a.a.0.
all the necessary ingredients of a trust are present in.
1490 found entered in the ledger under the head patasala other properties are mentioned for charitable purposes for the welfare and prosperity of our family.
as the first respondent died pending the proceedings in the court of the subordinate judge the 17th respondent his younger brother was brought on record in his place.
numberinterest was stipulated in the document but the mortgagee was put in possession of the mortgage property.
ganapathy iyer s. n. prasad and j. b. dadachanji for the appellants.
against the said order the mortgagors have preferred on a certificate issued by the high companyrt the present appeal to this companyrt.
the judgment of the companyrt was delivered by subba rao j. this appeal by certificate raises the question of the applicability of s. 9 a 10 ii b of the madras agriculturists relief act madras act iv of 1938 hereinafter called the act as amended by act xv of 1943 and act xxiii of 1943 to a mortgagee in respect whereof a petition for scaling down the said mortgage debt under the provisions of the act was filed.
to that appeal the petitioners and other respondents were made respondents.
number 557 of 1952.
civil appellate jurisdiction civil appeal number 200 of 1963.
and it is stipulated that the undermentioned ceremonies shall be performed with the income derived from the aforesaid properties.
on august 18 1930 the predecessors in interest of the appellants executed a registered deed of usufructuary mortgage in favour of the family of samu pattar for rs.
on the first question the learned subordinate judge held that the transferee viz.
the companytesting respondents inter alia raised two pleas namely 1 the mortgage property was transferred in trust to the charity for valuable companysideration and therefore s. 9 a 10 ii b of the act was attracted and hence the mortgage was number liable to be scaled down under the act and 2 the said mortgage right was the subject matter of a partition amongst the several members of the joint family consisting of respondents 1 15 16 and others and therefore the said mortgage was exempted under s. 9 a 1 0 ii c of the act from its operation.
as the said first respondent mortgagee raised the plea that the mortgage interest had been set apart by the members of his family to a charity respondents 15 and 16 who were the seniormost male members of their respective branches of the mortgageefamily were also impleaded as respondents to the said petition.
the mortgagee had to enjoy the income from the said property and after appropriating interest due on the mortgage and after paying the revenue and the jenmis purappad he was to pay to the mortgagors one edangali of paddy every year within the 30th of makarom.
number 577 of 1952.
n. rajagopala sastri m. r. krishna pillai and m. s. k. aiyangar for respondent number 1.
the 11th appellant and his deceased father narayana lyer filed o.p.
17th september 1934 and the accounts shall be rendered to the satisfaction of the members of the rest of the branches at the end of the year.
the charity number being a transferee for valuable companysideration the proviso to s. 9 a 10 ii b did number apply and on the second question he held that the partition of the family in the sense of division in status was effected before the relevant period and that apart as the mortgage interest of the family was number allotted to some or one of the members of the family but a trust was created in respect thereof in favour of a charity s. 9 a 10 ii c had numberapplication.
to that petition appellants 1 to 10 and other mortgagers were impleaded as respondents 2 to 14 and the mortgagee as the first respondent.
