MANAKA Vs. MADHARAO

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Nagpur allowing an appeal from a decree of the Additional Judge of Chanda. The appeal has arisen out of a suit filed by Arjuna (the husband of appellant 1 and the father of appellants 2, 3 and 4) and appellants 5, 6 and 7 (the brothers of Arjuna) to enforce payment of the sum of Rs. 12,553.0.3, claimed to be due on a mortgage executed in their favour by Mt. Bajabai, her son Saoji (father of respondent 1 and the husband of respondents 2 and 3), and respondents 4 and 6 (Saoji's brothers) and on behalf of certain minors. Arjuna, Bajabai and Saoji have died during the course of the litigation. The Additional District Judge held that the minor defendants had no interest in the property mortgaged and this finding has not been challenged. Consequently, they have not been made parties to the appeal.

(2.) The respondents' case is that in the mon December, 1934, the mortgagees agreed to accept the sum of Rs. 9500 in settlement of the amount due under the mortgage, that on 17 January 1935, Rs. 9300 of the agreed amount was paid to Govinda (plaintiff 2 now Appellant 5) who received it on behalf of all the mortgagees, that thereupon Saoji made an endorsement of payment on the mortgage deed and that the endorsement was signed by Govinda in acknowledgement. The reason given by the respondents for the fact that the only acknowledgment of payment was the endorsement was that Govinda said that a receipt could not be given until his brothers were present and that a question remained to be settled with regard to a sum of Rs. 100.

(3.) The mortgagees, who had formed a joint Hindu family but had become divided before the alleged payment, denied that they had ever agreed to accept Rs. 9500 in settlement, they denied that Rs. 9300 had in fact been paid, they maintained that Govinda had no authority to, accept payment on their behalf and they averred that there was no endorsement on the mortgage when it was filed in Court at the time of the institution of the suit.