BODA NARAYANA MURTHY AND SONS Vs. VALLURI VENKATA SUGUNA

JUDGEMENT

(1.) Plaintiff in the suit is appellant in the appeal . It is a firm represented by one of the petitioners. The suit is laid to recover a sum of Rs. 52,087.47 with interest form the date of suit, on the foot of an equitable mortgage by deposit of title deed made by one late. N. V. Narshimham, father of defendants 1 and 2. Only one title deed was deposited and it is Ex. A-9 dated 23-1-1945 under which the site, an up-stair building and some structures standing thereon, were conveyed in favour of five persons, namely father of defendants 1 and 2, 3rd defendant, Nidamarthi Suraiah Venkata Krishna Murthy and one Nidamarthi Satyanarayana Murthy. Subsequently, a cinema house, called Minerva Takies was built on the site purchased under Ex A-9 by the time equitable mortgage was created which is evidenced by the Memorandum, Ex. A-10 dated 19-1-1970. According to Ex. A-10 the deposit was made on 18-1-1970.

(2.) After obtaining Ex. A-9, one of the five purchasers viz., Venkatakrishna Murthy by Ex. A-23 dated 22-3-1945 relinquished his share by mentioning it as 1/8th in favour of the remaining four vendees under Ex. !-9. Subsequently some others also became entitled to a share in the property relating to Ex. A-9. All of them re made parties to the suit and they are defendants 3 to 8.

(3.) The first defendant filed a written statement which has been adopted by defendants 2 and 8. The third defendant filed a separate written statement which has been adopted by defendants 5, 6 and 7. The contentions raised by the defendants in defending the suit are as follows:---- 1. The suit is not maintainable as the plaintiff-partnership firm was not registered and the partner who filed this suit was not authorised to do so; 2. The borrowing said to have been made by N. V. Narasimham. father of defendants 1 and 2 and creation of the mortgage are not admitted and the plaintiff is put to strict proof of the same; 3. The interest claimed is excessive; 4. The hypotheca was a partnership property of a firm, consisting of partners, N. V. Narasimham, father of defendants 1 and 2, defendants 3, 5, 7 and 8 and another called A. Visveswara Rao, and therefore, the mortgage created by the father of defendants 1 and 2, as a security for his personal debt is not valid; and 5. Defendants 4 and 6 have no interest in the hypotheca.