RAJAMMA Vs. MAHANT P KRISHNANANDAGIRI GOSWAMY

JUDGEMENT

(1.) This appeal is filed against the decree passed in the suit O.S.No.27 of 1957 on the file of the Civil Judge, Mysore. The said suit was filed for the recovery of Rs. 50,000 and interest due thereon which had been advanced under an equitable mortgage created by defendant 1 on 12-11-1965, by sale of the suit property which had been offered as security thereunder, and if necessary by making a personal decree against the other assets of defendant 1. Since the suit property had been subsequently sold by defendant 1 in favour of defendant 2, defendant 2 was also impleaded as a party to the suit. Defendant 1 died during the pendency of the suit and his legal representatves have been brought on record.

(2.) The case of the plaintiff can be briefly summarised as follows. That on 5-11-1965 defendant-1 approached the plaintiff with a request for a loan of Rs. 50,000 on the security of his property which had been mortgaged in favour of a third party earlier and promised to effect an equitable mortgage on the said property after securing the title deeds from the earlier mortgagee. The request was contained in a letter dated 5-11-1965 {Ex. P-1) . Accordingly on 10-11-1965 the plaintiff advanced a sum of Rs. 50,000 under two promissory notes (Exs. P-2 and P-3) . That with intent to create an equitable mortgage in favour of the plaintiff in respect of the suit property for securing the said loan of Rs. 50,000, defendant-1 deposited the title deeds of the suit property with the plaintiff as stated in his letter dated 12-11- 1965 (Ex. P-11) . The plaintiff alleged that defendant-1 had paid interest at fifteen per cent per annum till 10-12-66 although the stipulated interest was eighteen per cent per annum. The plaintiff, therefore, filed the suit for recovery of Rs. 50,000 and interest at fifteen per cent per annum from 10-12- 1966 till date of suit. Defendants i (a) and 1 (b) who were brought on record as the legal representatives of defendant-1 merely denied the contents of the plaint and put the plaintiff to proof of the same.

(3.) Defendant-2 raised two principal objections in the written statement, namely, that the mortgage was not supported by consideration and that it was not enforceable for want of registration. The lower Court passed a preliminary decree as prayed for. Aggrieved by the said decree, defendant-2 has filed this appeal. In this appeal Sri B. S. Keshava lyengar, learned counsel for defendant-2, urged that the plaintiff had not proved that the mortgage was supported by consideration and that the mortgage was unenforceable as. Ext. P-11 the letter dated 12-11-65 relied on by the plaintiff had not been registered. We shall deal with the contentions in the order in which they were urged. The plaintiff has examined in all three witnesses including himself in support of his case. The defendants have not examined any witnesses on their behalf.