The mortgage deed was number registered.
He put the plaintiff to strict proof of the fact that the sum claimed in the plaint under several promissory numberes was owing to him and also of the fact that the 1st defendant effected a mortgage of the suit properties by deposit of title deeds in favour of the plaintiff.
7,565 2 0 with further interest at 6 per cent.
As the only companytesting party before us is the 3rd defendant 3rd respondent herein , it is number necessary to numberice the defences raised by defendants other than the 3rd defendant.
B 1, to the Kumbakonam Bank informing it that one S. Narayana Ayyar of Madras would discharge the mortgage amount due to the Bank from the 1st defendant and authorizing the Bank to deliver to the said Narayana Ayyar the cancelled mortgage deed and the relative title deeds.
On April 13, 1947, the plaintiff lent an other sum of Rs.
Pursuant to this agreement, the plaintiff on the same day advanced to the 1st defendant a sum of Rs.
This agreement shows that the 1st defendant was willing to execute a mortgage deed of his properties to the plaintiff and with that object undertook to bring the title deeds and hand them over to the plaintiff for preparing the mortgage deed.
15,000/ to discharge his earlier indebtedness and also his indebtedness to the Kumbakonam Bank and to enable him to do business, the 1st defendant agreed to execute a first mortgage of the Tanjore properties as well as of the properties mortgaged to the Kumbakonam Bank.
The plaintiff has preferred the present appeal against the decree of the High Court.
A 1 8 dated July 4, 1947 are the promissory numberes executed by the 1st defendant in favour of the plaintiff.
B 2 , he authorised the Managing Director of the Kumbakonam Bank to hand over the title deeds and the mortgage deed duly discharged to the plaintiff or his representative on his paying the amount due by him to the Bank.
It is number disputed that the said agreement was executed on July 5, 1947.
The 1st defendant had deposited with the plaintiff the title deeds of his immovable property, for the purpose of enabling him to get a mortgage deed prepared, and had agreed to execute such mortgage deed on payment to him by the plaintiff the balance of the amount of Rs.
On April 7, 1947, the 1st defen dant executed an unregistered agreement in favour of the plaintiff whereunder, as the plaintiff agreed to lend to the 1st defendant a sum of Rs.
The first defendant borrowed from the plaintiff from time to time on seven promissory numberes.
He also undertook to bring all the title deeds from the Kumbakonam Bank and hand them over to the plaintiff for preparing the mortgage deed.
On receiving them the plaintiff told the defendant that he would take them to his attorney, have a deed drawn and then advance the money.
27,000/ more, the whole of Rs.
per annum from July 5, 1947, against the 1st defendant personally.
The facts are as follows.
The defendant applied to the plaintiff for the money before the deed was prepared, but the plaintiff refused, saying, he would number advance the money until he was satisfied by his attorney, and the deed had been prepared.
The said Narayana Ayyar took the letter.
Appeal from the judgment and decree dated January 31, 1957 of the Madras High Court in Appeal No.
The latter deposited with him on April 2, 1883, the title deeds of a certain property.
A 8 and by giving a money decree against the 1st defendant for the entire balance of the decree amount.
A 12 dated March 2, 1947, Ex.
3,000 in respect of two of the plaint schedule items described in Ex.
The plaintiff preferred an appeal against the decree of the Subordinate Judge, insofar as it went against him, and the 3rd defendant filed cross objection in respect of that part of the decree which went against him.
A17 dated May 10, 1947, and Ex.
A 9 dated February 13, 1947, Ex.
3,000/ under a promissory numbere of the same date.
On May 10, 1947, the 1st defendant executed another promissory numbere, Ex.
65,000/ to be secured by a mortgage of the 1st defendants immovable property.
Mamamurthi Aiyar, T. S. Rangaraian and R. Gopala krishnan, for the appellant.
45 of 1951 in the Court of the Subordinate Judge, Tanjore, for enforcing the said mortgage against the said properties.
On January 26, 1947, i.e., a day after the first promissory numbere was executed, a list of tittle deeds of the properties belonging to the 1st defendant in Tanjore was given to the plaintiff as companylateral security and by way of equitable mortgage for the loan of Rs.
On that finding, the High Court modified the judgment and decree of the Subordinate Judge by restricting the mortgage decree given to the plaintiff to the amounts companyered by the first three promissory numberes and interest thereon and to one half of the properties described in Ex.
A Division Bench of the Madras High Court, which heard the appeal and the cross objections, held that the 1st defendant did number effect a mortgage by deposit of title deeds on May 10, 1947, in favour of the plaintiff for the entire suit claim, but that he effected such a mortgage in favour of the plaintiff on January 25, 1947, for a sum of Rs.
Though it was executed on July 5, 1947, it was presented for registration on October 31, 1947 and was eventually registered on June 22, 1948.
On July 4, 1947, the 1st defendant executed another promissory numbere, Ex.
The Judgment of the Court was delivered by SUBBA RAO, J. This appeal on a certificate issued by the High Court of Judicature at Madras is preferred against the judgment and decree of the said High Court modifying those of the Subordinate Judge, Tanjore, in a suit filed by the appellant to enforce a mortgage by deposit of title deeds.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
B 1, to the Bank, paid the amount due to it from the 1st defendant and took the title deeds on behalf of the 1st defendant and sent them on to the plaintiff at Madras by registered post.
The plaintiff, alleging that the first defendant had created a mortgage by deposit of title deeds in his favour in respect of his half share in the properties specified in B Schedule, instituted O.S. No.
The 1st defendant did number bring the title deeds, but by a letter dated April 27, 1947, Ex.
On May 5, 1947, the plaintiff wrote a letter, Ex.
per annum thereon.
A 19 dated July 5, 1947, is a registered memorandum of agreement executed between the plaintiff and the 1st defendant.
The plaintiff also alleged that in a partition ,effected between the 1st defendant and his brother properties described in the C Schedule annexed to the plaint were ,allotted to the 1st defendant.
Exhibit A 1 dated January 25, 1947, Ex.
9,157 5 0 with interest at 6 per cent.
16,500/ .
1,500 borrowed under Ex.
February 11, 1964.
He, therefore, asked in the alternative that the C Schedule properties should be sold for the realization of the amount due to him from the 1st defendant.
A 14 dated April 7, 1947, Ex.
16,500/ .
969/1952.
The suit was for recovery of a sum of Rs.
A 15 dated April 13, 1947, Ex.
To that suit six persons were made defendants defendant I was the mortgagor defendant 2 was the subsequent purchaser of several of the items of the suit properties subject to plaintiffs mortgage defendant 3 was the subsequent morgagee defendant 4 was the subsequent purchaser of one of the plaint schedule properties and defendant 5 and 6 were sister and brother of the 1st defendant.
S. Venkataraman, M. R. Krishna Pillai and M. S. K. lyengar, for the respondent No.
16,500/ and interest thereon.
It is number disputed that the promissory numberes were genuine and that the said amounts were lent by the plaintiff to the 1st defendant on the dates the promissory numberes bear.
On that finding, he gave a decree in favour of the plaintiff against defendants 1 to 3 for the said amount with a charge over items 1 and 4 of the C Schedule properties, and he also gave a decree in favour of the plaintiff for a sum of Rs.
407 of 1962.
15,0001 on October 10, 1947 and that, being a bona fide purchaser for value, he had priority over the plaintiffs security, even if it were true.
3,000/ under a promissory numbere to the 1st defendant.
The 3rd defendant alleged that the 1st defendant had executed a security bond in his favour for a sum of Rs.
The learned Subordinate Judge held that the suit loans were true, that the mortgage by deposit of title deeds was also true, but the plaintiff had a valid mortgage only of items 1 and 4 of the C Schedule in respect of a sum of Rs.
