Pandalai, J - (1.)The plaintiff appeals from a decree of the learned District Judge of Ganjam dismissing his suit brought on six simple mortgages marked A, A-l, A-2, A-3, A-4, and A-5, executed by defendant 1 to him between September,1909 a July, 1911 for a total sum of Rs. 2,000. Defendant 2 (respondent 2), the principal contesting defendant, is the. minor of defendant 1. The other defendants, of whom defendant 3 is a divided cousin by adoption of defendant 1, and defendants 4 to 9 are persons holding under defendant 3 were made pro forma: defendants. A number of formal defences were raised which were all found in favour of the plaintiff. The substantial defence on the merits was that the mortgages sued on were sham transactions made without consideration with the object of defeating any claims which defendant 3 might make to the property or the income on the basis of his adoption which defendant 1 was then denying. On this the learned Judge found in favour of the defence and hence dismissed the suit.
(2.)The main questions in the appeal are whether the mortgages sued on are supported by consideration and whether the defence that they were not so supported is open to defendants 1 and 2 or either of them. Logically, the second point should precede the first as, if it is found in favour of the appellant the first point would not arise.
(3.)Defendant 1 and his brother's adopted son, defendant 3, were living together before 1909 when they quarrelled and defendant 1 denied the adoption and drove defendant 3 out of the house. Litigation followed in which the adoption was upheld. In 1914 defendant 3 sued for partition and obtained a decree for his share and costs and mesne profits. In execution of this decree defendant 1's and 2's shares were attached. The plaintiff who had obtained the mortgages now sued on between 1909 and 1911 preferred a claim based on them in execution which was dismissed. He brought a suit, O.S. 14 of 1918, to set aside the claim order, and though he failed in the first Court (Ex. 7) in appeal the District Judge upheld the mortgages as true and valid and supported by consideration (Ex. E). To this suit defendant 1 was party. This suit on the mortgages was brought afterwards. Clearly the question of the validity and consideration for the mortgages is res judicata as between the plaintiff and defendant 1. The learned Judge below misunderstood Ex. E when he considered that the Judge who decided that ease, after upholding the mortgages, left the same question open as between the parties to the suit. This he did not in fact do and had not the power to do.- The sentence in Ex. E which reference is made clearly refers to defendant 1's minor son (present defendant 2) or anyone else who could legally raise the question and not defendant 1 himself. We hold that the defence of want of consideration is not open to defendant 1 (respondent 1.)