GODUGUNEESI PADMANABHACHARI Vs. ANNAMRAJU SITHAPATHIRAO AND OTHERS
HIGH COURT OF ANDHRA PRADESH
Annamraju Sithapathirao And Others
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K.SUBBA RAO,J. -
(1.) This second appeal is preferred by the 1st defendant against the decree and judgment of the Court of the Subordinate Judge of Tenali confirming those of the District Munsif, Tenali, in O.S. No. 61 of 1945, a suit filed by the respondent for the redemption of a usufructuary mortgage bond dated 18th November, 1876.
(2.) Plaintiff's case may be briefly stated One Abdul Wahab Sahib owned a plot of about 7 acres covered by D. Nos. 1176, 1178, 1179 and 1282 of Kolakalur village. Item 1 of the plaint schedule is the southern portion of D. Nos. 1176, 1178 and 1179 of the extent of 3 acres. Item 2 is one acre in D. No. 1282. The said Abdul Wahab Sahib on 18th November, 1876, executed a usufructuary mortgage of the said two items in favour of Mukkamala Lakshminarasu. Under the document, a sum of Rs. 200 was borrowed. The said sum carried interest at 12 per cent, per annum. It was agreed that the principal and interest due under the bond were to be discharged by crediting Rs. 12 every year towards the debt. The said Abdul Wahab Sahib filed O.S. No. 132 of 1894 on the file of the District Munsif's Court, Guntur, against the mortgagee for redeeming the mortgage and for possession. When the suit was dismissed, he preferred an appeal and withdrew the same. During the pendency of that litigation, Abdul Wahab Sahib transferred his right, title and interest in the said property along with his other property by a registered deed dated 10th June, 1865, to Venkatakrishnayya, the father of plaintiffs 1 to 4 and the paternal grandfather of plaintiffs 5 to 11. The mortgagee Lakshminarasu sub-mortgaged the property by a deed dated 8th April, 1886 and died 30 years ago. His brother late Anantaramayya succeeded to his property. The 4th defendant is the grandson of Anantaramayya and claims the mortgagee's rights in item 2. The mortgagee's interest in item 1 devolved on the two sons of Anantaramayya, Mohanarayudu and Mangayya. The 1st defendant purchased the right, title and interest of the mortgagee in item 1 in a Court-sale held in execution of a money decree obtained by him against the representatives of Anantaramayya. Defendants 2 and 3 are his lessees. On those allegations, the aforesaid suit was filed for redemption of the suit mortgage bond and for recovery of future profits. The 1st defendant did not admit the allegations in the plaint but put the plaintiffs to the proof of the truth, consideration and validity of the mortgage deed. He also pleaded that, in accordance with the terms of the deed, the debt has not been discharged. He further averred that the sale executed by Abdul Wahab Sahib in favour of Venkatakrishnayya was not given effect to and the same was duly rescinded after the dismissal of the appeal filed by him. The 4th defendant supported the 1st defendant. He pleaded that the suit was barred by limitation and that the judgment in O.S. No. 132 of 1894 operated as res judicata. The learned District Munsiff and on appeal, the learned Subordinate Judge held that the mortgage deed was executed by Abdul Wahab Sahib in favour of Lakshminarasu and that the sale deed was duly executed by him in favour of Venkata Krishnayya, the father of plaintiffs 1 to 4 and grandfather of plaintiffs 5 to 11. They also held that the mortgage debt had been wiped off from the rents of the property. In the result, the suit was decreed. The 1st defendant preferred the above appeal.
(3.) The learned counsel for the appellant contended that the mortgage deed executed by Abdul Wahab Sahib in favour of Lakshminarasu and the sale deed executed by him in favour of Venkatakrishnayya were not duly proved. He further argued that, under the terms of the mortgage deed, the mortgage was not discharged.;
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