- (1.) These appeals arise out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A dated 4-5-1923, executed by the defendant in favour of one Radha Prasad Bhagat. The subject-matter of the mortgage is an estate called the Bodogodo Zemin situated in what was the District of Ganjam in the Province of Madras and now comprised in the State of Orissa, and governed by the provisions of the Madras Impartible Estates Act, 2 of 1904. The Mortgage is for Rs. 1,25,000 and the deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a promissory note executed on 30-3-1923, that the balance of Rs. 1,12,500 was paid to him in cash, and that the entire amount was borrowed for meeting the expenses of the marriage of his second daughter with the eldest son of the Rajah of Talcher. The marriage, in fact, took place on 27-4-1923. Though the deed recites that Rs. 1,12,500 was paid in cash, the case of the plaintiffs is that it was, in fact, paid on 14-4-1923 on the authority of the defendant to his manager, one Mr. Henry Tapp after the mortgage bond was registered, which was on 10-4-1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000. The mortgagee died on 18-11-1933, and thereafter his legal representatives filed the suit out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property.
(2.) The defendant resisted the suit on several grounds. He pleaded that the mortgage was supported by consideration only to the extent of Rs. 25,000 and that it had become discharged by the payments made in 1926 and 1927. He also contended that the mortgage bond was not duly attested or validly registered and that it was therefore void and unenforceable.
(3.) The subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note for Rs. 12,500 dated 30-3-1923, Exhibit J, and that it was really a 'salami', but that the balance of Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant. He also held that the mortgage bond was duly attested and validly registered, and a decree was passed in accordance with these findings.;