Decided on August 13,1952



Krishnaswami Nayudu, J. - (1.) Plaintiff is the appellant. As assignee of a mortgage he instituted O.S. No. 50 of 1948 on the file of the Subordinate Judge's court, Chingleput, against defendants 1 and 2 who are the minor sons of one Subbaraya Reddi, for a mortgage decree on a mortgage executed by Subbaraya Reddi in favour of one Munuswami Reddi on 9-7-1925 for Rs. 4000 and assigned by Munuswami Reddi in the plaintiff's favour on 15-4-1943. Subbaraya Reddi had three sons, one Dasu Reddi who is alive and who is not made a party, and defendants 1 and 2 who are minors and are represented by a guardian 'ad litem'. Subbaraya died in 1944. On 29-11-1940 his eldest son Dasu Reddi executed 'a release, Ex. A. 8, taking away his one-fourth share and releasing his rights in the joint family and its properties. Exhibit A. 8 makes it clear that thereafter he shall have only blood relationship and that there shall be no right as regards assets and liabilities.
(2.) It may be necessary to refer to the transactions which led to the mortgage and the assignment. Subbaraya Reddi was possessed of 28 acres 47 cents nanja and punja lands which are stated to be his ancestral properties, and on 24-7-1920 by Ex. A. 3 he executed a usufructuary mortgage in favour of Munuswami Reddi the mortgage in the suit mortgage under Ex. A. 1, for Rs. 4000. On 31st July 1920 under Ex. A. 4 there was a further mortgage for Rs. 250 on 2 acres only, all the 28 acres 47 cents having been mortgaged under the usufructuary mortgage, Ex. A. 3. On 20-7-1921 Subbaraya Reddi sold 7 acres 52 cents out of the properties mortgaged under Exs. A. 3 and A. 4 to the mortgagee Munuswami Reddi for Rs. 2800. The sum of Rs. 2800 was paid by Munuswami Reddi by adjustment of a sum of Rs. 2125 towards the amount due on the mortgages, Exs. A. 3 and A. 4 and the balance of Rs. 675 was appropriated towards the debt due by Subbaraya to Munuswami Roddi on a promissory note dated 5th November 1920. The entire consideration of Rs. 2800 for the sale was thus accounted for. After the lapse of about four years, on the 9th July 1925. Subbaraya Reddi purchased from Munuswami Reddi 6 acres 34 cents out of the 7 acres 52 cents sold by him on 28-7-1921 under Ex. A. 5 for the sum of Rs. 3000 the sale deed being Ex. A. 7. On the same date Subbaraya Reddi executed a simple mortgage in favour of Munuswami Reddi, the vendor under Ex. A. 7, and the mortgagee under Exs. A. 3 and A. 4, mortgaging 25 acres 32 cents including the 6 acres 34 cents purchased by Subbaraya under Ex. A. 7 on that date. The consideration for the sale and the mortgage was provided in the following manner: Rs. 3000 was the sale price for the sale under Ex. A. 7 out of which Rs. 2038 was included as pan of the consideration of Rs. 4000 in the mortgage Ex. A. 1. For the balance Munuswami adjusted a sum of Rs. 880 towards the amount due under a promissory note executed by Subbaraya in favour of Munuswami and the balance of Rs. 82 is stated to have been paid in cash by Munuswami Reddi to Subbaraya. As for the sum of Rs. 4000, which is the mortgage amount under Ex. A. 1 Rs. 2038 had been accounted for and the balance of Rs. 1962 represents the amount of principal and interest due on another promissory note executed by Subbaraya Reddi in favour of Munuswami Reddi dated 31-10-1922.
(3.) The plaintiff obtained an assignment of this mortgage Ex. A. 1 on 15-4-1942, Ex. A. 2, and the suit is on that assignment and the mortgage Ex. A. 1. The defence on behalf of the minors was that their interests in the properties which are joint family and ancestral properties, are not bound by the mortgage and so far as their share-is concerned no decree can be passed as the alienation is not binding on them. The lower court agreed with the contentions on behalf of the minors and passed a decree only against an undivided half of the suit properties, i.e., to the extent of the share Subbaraya was possessed of on the date of the alienation. The right of the minors to question the alienation is stated not to have been disputed seriously in the lower court. But Mr. M. S. Venkatarama Aiyar, learned counsel for the appellant, raised the question and urged that the right to dispute the alienation on behalf of the minor defendants depended on the right of the eldest son Dasu Reddi to attack the alienation, but since Dasu Reddi is stated to have impliedly consented to the mortgage, it is not open to the minors to raise the question once again. I am unable to find in the evidence as to any consent, expressed or implied, given by Dasu Reddi to the transaction of the mortgage, and as such it may be taken that there was no consent on the part of any of the sons to this alienation.;

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