Decided on August 25,1944



Wadsworth, J. - (1.) THIS appeal arises out of an order of remand passed at the hearing of an appeal from an order under the rules framed tinder the Madras Agriculturists' Relief Act 4 of 1938. The applicant to the trial Court was a member of the mortgagor family. The debt in respect of which a declaration is sought was a mortgage Ex. D -1 dated 22nd August 1927 for a sum of Rs. 2350 executed by all the members of the applicant's family in favour of one Gopala Ayyapgar, the uncle of the present appellant. This mortgage discharged Ex. D -6, a mortgage for Rs. 800 dated 29th April 1913 executed by the same parties in favour of the appellant's grandfather, who is also the father of Gopalaswami Ayyangar. Ex. D -6 itself discharged a still earlier mortgage of 1902 Ex. D -7 between the same parties for Rs. 500.
(2.) THERE are complications due to the subsequent history of the debt, Ex. D -1. In 1928 or thereabouts, there was a partition in the creditor's family. It is common ground that the mortgage debt though on the face of the documents the mortgagee was in each case a single member of the family, was really the property of the family. The only partition deed which has been put into Court is Ex. D -2, a registered document relating apparently only to the Immovable properties of the creditor family and reciting that there has been an earlier division of the moveables by means of entries in the accounts. Subsequent to this partition, it is clear that the debtors dealt with the present appellant as the person to whom the mortgage debt had been allotted and there were two settlements one in 1934 and the other in 1936 whereby the parties agreed as to the amount then due which at the last settlement was Rs. 1000. The lower appellate Court has, to my mind quite rightly, repelled the contention that each of these settlements created a fresh debt due from the debtors to the present appellant individually, in renewal of the previous debt due by them to the appellant's uncle or the joint family of which he was a member. Apart from all other difficulties in the way of this contention, it seems to me obvious that a mortgage can be created only by a registered instrument and these unregistered agreements between the parties as to the amount due, while they might estop the parties from denying the state of the accounts admitted in those settlements, cannot create any fresh mortgage in super session of the original mortgage EX. D -1. The debt to be scaled down therefore is the mortgage Ex. D -1, and it seems to me apparent that this is an instrument in favour of Gopala Ayyangar. Unless it can be shown that the mortgage has been transferred in some way known to law to the present appellant, all that the appellant is entitled to is to receive the proceeds of the mortgage when it is realized. If he wishes to collect the debt, he must make the titular mortgagee a party. There is a further complication due to the fact that there has been a partition in the respondent's family since the last settlement. It appears that there has been no allotment either of this mortgage debt or of the hypo -theca to any individual member of the family. That being so, it would follow that all the members of the debtor family are jointly and severally liable under the mortgage and we are not concerned with any question as to the identity of the debtors, for there has been no renewal since Ex. D -1 was contracted. The explanation to Section 8 of Act 4 of 1938 only comes in, therefore, with reference to the relationship of the parties under Ex. D -1 to the parties under the antecedent transactions. It is common ground that the creditor under the two earlier documents was the appellant's grandfather, the then manager of the family, although he does not purport to act as manager. After his death the present mortgage Ex. D -1 was taken in favour of his son Gopala Ayyangar who was presumably the succeeding1 manager, if not the heir of his father. There is no difficulty in holding that Ex. D -1 was in favour of the same creditor as the preceding documents and that the debtors were the same. The chain of renewals is therefore complete and it seems to me that it makes no difference, if, during the currency of the present debt, there has been any devolution of the right to receive the proceeds by the partition in the creditor's family or any conveyance of the mortgage by any registered instrument executed at that partition. Nor does it make any difference if there has been a division in the debtors' family whereby all the mortgagors are liable as joint debtors, just as they were when the mortgage was executed.
(3.) THE only matter which requires attention in the lower appellate Court's order arises from, the passing of the Amending Act 15 of 1943. By reason of the new Section 19 -A enacted by the Amending Act, proceedings until then held under the rules must now be deemed to be under the Act itself and it is necessary that all parties who would be necessary parties in a suit, be impleaded in those proceedings; seeing that there is now a right to get a decree on the basis of the declaration on payment of the necessary court -fee. Seeing that this new Act will govern the present appeal, it becomes necessary to have such an adjudication as will satisfy the provisions of that Act and may eventually lead to a decree. For this purpose, it is now necessary, though the rules did not require it, to imp lead all those persons who would be necessary parties to a suit on the mortgage. If Gopala Ayyangar is still alive and if his title to the mortgage has not devolved upon the appellant by any registered instrument or on his heirs as a result of his death, he will obviously be a necessary party, ft is also obviously necessary to imp lead the other mortgagors and any other persons in, terested in the hypo theca. The order of remand will be modified so as to direct the trial Court to imp lead. all those parties who would be necessary for the trial of the suit on the mortgage; and as a consequence of that amendment it is necessary to allow all parties to adduce fresh evidence. In other respects the appeal is dismissed and the respondent is entitled to his costs in this Court.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.