R M RAMAN CHETTIAR Vs. TIRUGNANASAMBANDAM PILLAI

JUDGEMENT

(1.) The question to be decided in this appeal has reference to the validity of a mortgage bond executed by the guardian of the minor defendant. The plaintiff claimed about Rs. 8,000 in his plaint, but the learned Subordinate Judge disallowed some items and passed a decree for Rs. 3,000 odd. The plaintiff has filed the present appeal.

(2.) In the District Court of Tinnevelly, O.P. No. 41 of 1914 was filed by one Muthiah Pillai, the brother-in-law of the defendant, for the purpose of getting a guardian appointed, under the Guardians and Wards Act, of the person and property of the defendant, who was then about 12 years of age. Among the respondents to that petition were Subramania Pillai and Satyanada Pillai, whose names alone are important having regard to the facts with which we have to deal. The defendant was the adopted son of one Manickavasagam Pillai who had died previous to the petition and Subramania and Satyanada were the defendant's brothers in his natural family. In September, 1914, an order was made by the Court appointing Subramania the defendant's guardian under the Act. In August, 1915, Subramania applied to the District Court under the same Act for permission to borrow Rs. 4,000 on the security of immoveable property of the minor. Certain affidavits were filed in support of that application and after notice to all the parties to the petition, the Judge granted on the 24 September, 1915, permission to execute a mortgage deed and raise the sum mentioned. The draft of the proposed bond was submitted to the Court and it was approved; the engrossed bond was then produced and seen by the Court. It was directed to be registered and after registration it was again produced before the Court and there the matter ended. I may remark that the learned Judge also sanctioned the compound interest provided for in the bond, the mortgage bond having deviated in this respect from the affidavits filed. The record of what took place in the District Court shows very clearly that not only were the terms generally approved of by the District Judge but that the actual bond itself was perused by him and received his sanction.

(3.) The mortgage deed is dated 29 September, 1915, and is marked Ex. C. The consideration is made up of six items: (1) Rs. 751-6-11 due to the plaintiff in respect of a promissory note, dated 29th December, 1913, Ex. C-I. (2) Rs. 987-12-9 due to the plaintiff in respect of a promissory note, dated 12th February, 1914, Ex. C-3. (3) Rs. 611-6-1 due to the plaintiff in respect of a promissory note, dated 10th March, 1914, Ex. C-5. (4) Rs. 606-6-3 due to the plaintiff in respect of a promissory note, dated 6 April, 1914, Ex. C-6. (5) Rs. 1,037-7-3, amount retained with the mortgagee for payment to Satyanada. This amount represents the principal of Rs. 875 borrowed by Subramania between 21 January, 1914 and 13 March, 1914 from Satyanada and interest thereon. This is not covered by any bond. (6) Rs. 5-8-9, amount received in cash from the mortgagee. Total Rs. 4,000-0-0.